TRY SECOND OPINION, INC.
Effective Date: 01 – January – 2022
PLEASE NOTE: TSO’S SERVICES ARE NOT FOR USE IN MEDICAL EMERGENCIES OR OTHER URGENT SITUATIONS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
NOTE THAT SECTION 20 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
By clicking “I Accept” or by accessing or using the Services, you agree to these Terms. If you do not agree with these Terms, including the mandatory arbitration provision and class action waiver in Section 21, you are not authorized to access or use the Website or the Apps for any purpose.
Nature of Beta.TSO may offer additions to our Services as part of a beta test phase. All or portions of the Services included in this test phase may not function correctly, or may contain errors. TSO is not obligated to correct, nor is it responsible for, errors or the effects of such errors while the beta test phases of these Services are active. Further, you acknowledge that TSO has no express or implied obligation to announce or make available any particular features of the beta Services in the future. Should these Services launch publicly after the beta phase, it may have features or functionality that are different than those found in the beta version licensed herein.
TSO provides a technology platform via the Website and Apps that offers patients the opportunity to obtain second opinions from licensed medical professionals regarding each patient’s diagnosis, as well as a medium for telehealth communications, including messaging and video conferencing services. These features compose, in part, the Services provided by the Website and Apps. As further detailed below, TSO offers a platform for limited diagnostic services only and is not itself a provider of healthcare services or medical advice, and any healthcare providers that you interact with on the Services are not acting as employees or agents of TSO.
2. Secondary Tool; Not a Healthcare Provider; No Medical Advice .
The Services operate as informational resources only and are a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. THE ROLE OF THE WEBSITE AND ITS MOBILE APPLICATION IS LIMITED TO MAKING CERTAIN TELEHEALTH- AND OTHER HEALTHCARE-RELATED INFORMATION AVAILABLE TO YOU AND/OR FACILITATING YOUR ACCESS TO TELEMEDICINE AND EXPERT HEALTHCARE SERVICES. You should not and must not rely on the Services as your primary tool for medical decision-making. Always seek the advice of your primary treating provider with any questions regarding your personal health or medical conditions. If you have or suspect that you have an emergent medical problem or condition, please contact a qualified healthcare professional or 9-1-1 immediately.
The Services are not targeted toward or intended for use by anyone under the age of 16. By using the Services, you represent and warrant that you (a) are 16 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one TSO Account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
5. User Accounts, Account Security, and Communication Preferences.
You may need to register for a TSO Account (“Account”) to access some or all of our Services. Unless you use a social sign-in such as Facebook or Google when creating an Account, you will be required to create a password and provide your name, email address, and phone number when you create an Account. If you register for an Account, you must provide accurate Account information and promptly update this information if it changes. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. You may designate another person involved with your care, called a “Caregiver”, to receive access to your Account. You understand that the Caregiver will be able to access your Account and all of the information in the Account, including the ability to download, print, email and provide access to the information to others. If you permit others to use your Account credentials, or if you designate a Caregiver, you are responsible for the activities of such users, including Caregivers, that occur in connection with your Account.
By creating an Account, you also consent to receive electronic communications from TSO (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
6. Additional Terms Applicable to Practice Users.
If you are using the Services on behalf of a healthcare provider, pharmacy, payer, health plan sponsor, or other entity that is a TSO customer (a “Provider Customer”), these Terms supplement any services agreement, business associate agreement and/or any other agreement between us and the Provider Customer (collectively, the “Customer Agreement”). To the extent that these Terms conflict with any Customer Agreement, the Customer Agreement will control. If you are using the Services as an employee or other representative of a Provider Customer, you are a “Practice User” for purposes of these Terms. Customer Agreements contain terms protecting privacy and may contain terms that control over these Terms for Practice Users. In addition to the other provisions of these Terms, the following provisions apply specifically and solely to Practice Users:
6.1 Registration. Certain aspects of the Services are available only to Practice Users who register with us. To register with us as a Practice User, you must be of legal age to form a binding contract. When you register, you will choose a user name and a password. You are responsible for safeguarding and maintaining the confidentiality of your user name and password and you agree not to disclose them to any third party unless otherwise permitted in a written agreement with us. You will be solely responsible for any activities or actions taken under your registered Account, whether or not you have authorized such activities or actions. You must notify us immediately if your user name and password have been lost or stolen or if you otherwise know or suspect that any unauthorized person is using your password or your Account. We strongly recommend that you do not access or use the Website on public computers. You agree that the information that is provided to us during registration or at any other time, will be provided in good faith and will be true, accurate, current, and complete. This information includes, but is not limited to, your name and e-mail address.
If you provide your health care services through, or on behalf of a legal entity, you represent, warrant and covenant that (i) you have the authority to bind such entity to these Terms, and (ii) such entity will comply with these Terms. Each individual health care provider employed or engaged by such entity must separately register with us as a Practice User. No individual, other than the individual Practice User registering as a Practice User, may use the Services under the Practice User’s Account information.
6.2 Qualifications. You further represent, warrant and covenant that, at the time of registration and on an ongoing basis, that you (i) satisfy all professional licensing requirements applicable to the professional services you are providing via the Services, (ii) hold all valid and current licenses required to provide such services, (iii) are in good standing with each licensure board or other authority issuing such licenses or otherwise having regulatory authority over you, and (iv) have not received any notice of cancellation, probation, suspension, revocation or non-renewal of any licenses required to provide such services. If and for so long as you fail to satisfy the provisions of this paragraph, you will cease all use of the Services. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties.
6.3 No Employment Relationship. You acknowledge that no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between you and TSO.
6.4 Confidentiality. To the extent you receive any confidential information of TSO in connection with your use of the Services, including, but not limited to, information concerning fees, marketing plans, financial results, Users, Practice Users, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by TSO which is not generally known to the public, you agree to protect such information against any unauthorized use or disclosure and to use such information solely for the purposes for which it was disclosed to you. For purposes of clarification and not limitation, you are not permitted to disclose information about Users or Practice Users that you collect through the Services to any third party without the express written consent of TSO.
7. Responsibility for Your Care; Practice User Credentials.
Each User’s health care is solely the responsibility of each Practice User and his or her respective User(s). Practice Users are the exclusive providers of any health advice and services provided through the Services. TSO supports Practice Users by providing them with certain rights to access and use the Services. However, under the Services, Practice Users have the exclusive control and responsibility for the delivery of health care advice and services.
Each Practice User, and not TSO, is responsible for, and represents and warrants that it obtained the informed consent from his or her Users to any diagnosis or treatment, including, without limitation, consent to use telehealth in the course of any services provided through the Services, to the extent such consent is required by any applicable law or agreement.
TSO is not responsible for credentialing Practice Users, makes no representation regarding the accuracy of Practice Users’ credentials or qualifications, and expressly disclaims any liability for fraudulent credentials or claims by Practice Users. We recommend that each User separately confirm that his or her Practice User is qualified and in good standing with his or her respective licensing board(s).
8. User Supplied Material.
Our Services may allow you to upload, store and share content, including messages, text, photos and other materials (collectively, “User Content“). Except for the license you grant below, as between you and TSO, you retain all rights in and to your User Content.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity).
In the event you choose to provide TSO with any feedback, suggestions, or similar communications, all such messages (collectively, “Feedback Messages”) will be considered non-personal, non-confidential, and nonproprietary. You hereby grant TSO a perpetual, sublicensable, assignable, unrestricted, worldwide, royalty-free, irrevocable license to use, reproduce, display, perform, practice, modify, create derivative or collective works, transmit and distribute your Feedback Messages, in whole or in part, and including all intellectual property rights therein.
Any User Content posted publicly or sent privately is the sole responsibility of the person that submitted it. Although TSO reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
9. Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services.
In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
10. Termination; Cancellation.
We may change the Services, and the TSO Content (defined below) at any time. We may discontinue offering our Services, and we may suspend or terminate your right to use our Services at any time, in the event that you breach these Terms, for any other reason, or for no reason at all, in our sole discretion, and without prior notice to you.
All licenses and other rights granted to you by these Terms will immediately terminate upon termination of your right to use our Services or our termination of the Services. These Terms will survive and continue to apply after any suspension, termination, or cancellation, except that your access rights and other rights as a user will be suspended, terminated or cancelled, respectively.
11. Intellectual Property; Limited License.
The Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “TSO Content”) are owned by or licensed to TSO and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, TSO and our licensors reserve all rights in and to our Services and the TSO Content.
TSO hereby grants you a limited, nonexclusive, non transferable, non-sublicensable, revocable license to access and use our Services and the TSO Content; provided, however, that such license is subject to these Terms and does not include any right to (a) sell, resell our Services and the TSO Content; (b) copy, reproduce, distribute, publicly perform or publicly display TSO Content, except as expressly permitted by us or our licensors; (c) modify the TSO Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the TSO Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the TSO Content other than for their intended purposes. Any use of our Services and the TSO Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
12. Links to Third Parties.
The Services may include links to third-party websites, resources and advertisements (collectively, “Third-Party Sites”). We are not responsible or liable for the availability or accuracy of, and TSO does not endorse, sponsor, or recommend any Third-Party Sites or the content, products, or services on or available from such Third-Party Sites. Your use of Third-Party Sites is at your own risk, and TSO and its affiliates will not be liable for any of losses arising out of or relating to Third-Party Sites.
In addition, Third-Party Sites that may be accessed from, displayed on or linked to from the Website are not available in all languages or in all countries. TSO makes no representation that such Third-Party Sites are appropriate or available for use in any particular location. To the extent you choose to access such Third-Party Sites, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. TSO reserves the right to change, suspend, remove, or disable access to any Third-Party Sites at any time without notice. In no event will TSO be liable for the removal of or disabling of access to any such Third-Party Sites. TSO may also impose limits on the use of or access to certain Third-Party Sites, in any case and without notice or liability.
13. Information and Services Provided by Third-Party Electronic Health Record Systems
Any information and services provided by third-party electronic health record systems (“Third-Party EHRs”) on the Services are the sole responsibility of Third-Party EHRs. TSO has no responsibility or liability for the information and services provided by Third-Party EHRs. Similarly, Third-Party EHRs have no responsibility or liability for the services provided by TSO. Third-Party EHRs and TSO have no agency, partnership, joint venture or employee-employer relationship intended or created by these Terms or any relationship between these Third-Party EHRs and TSO.
Any information provided by Third-Party EHRs is designed to assist licensed healthcare practitioners in caring for Users and/or to serve Users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Healthcare practitioners should use their professional judgment in using the information provided. Third-Party EHRs do not assume any responsibility for any aspect of healthcare administered with the aid of information the Third-Party EHRs provide.
14. Software Updates
TSO may from time to time, in its sole discretion (without obligation), develop and provide updates for our Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (“Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that TSO has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the software may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. To that end, based on your mobile device settings, with respect to an App, when your mobile device is connected to the Internet, either (i) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the Services and subject to these Terms.
15. Copyright Complaints
We have a policy of limiting access to our Services and terminating the Accounts of Users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify TSO’s Designated Agent as follows:
Designated Agent: Anand Bollineni
Address: 305 Cimarron Trl., Ste. 100, Irving, TX 75063-4501
E-Mail Address: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to TSO for certain costs and damages.
16. Disclaimer of Warranties.
WHILE WE ENABLE USERS AND PRACTICE USERS TO COMMUNICATE WITH ONE ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND COMMUNICATIONS, AND WE ARE NOT A PARTY TO TRANSACTIONS OR INTERACTIONS THAT MAY OCCUR BETWEEN USERS AND PRACTICE USERS, WHETHER ONLINE OR OFFLINE. IN ADDITION, WE ARE NOT RESPONSIBLE FOR AND WE EXPRESSLY DISCLAIM ALL LIABILITY THAT MAY RESULT FROM INFORMATION MADE AVAILABLE BY USERS AND PRACTICE USERS AND THE CONDUCT OF USERS AND PRACTICE USERS, WHETHER ONLINE OR OFFLINE. TSO DOES NOT SPONSOR, ENDORSE, RECOMMEND OR APPROVE OF ANY PRACTICE USERS. ADDITIONALLY, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT ANY PRACTICE USER IS LICENSED, QUALIFIED, INSURED OR CAPABLE OF PERFORMING ANY PRODUCT OR SERVICE, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE EXPERTISE, PROFESSIONAL QUALIFICATIONS, OR QUALITY OF WORK OF ANY PRACTICE USER, OR THE SUITABILITY, RELIABILITY OR ACCURACY OF THE PRODUCTS AND SERVICES THEY PROVIDE.
YOUR USE OF THE SERVICES AND TSO CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND TSO CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.
TSO AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND TSO CONTENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY OUR SERVICES. TSO MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY PRACTICE USERS, AND TSO SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY PRACTICE USER IN CONNECTION WITH SUCH SERVICES.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY TSO CONTENT OR ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (B) THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. OUR SERVICES AND TSO CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES AND TSO AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICES OR TSO CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY TSO WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
17. Limitation of Liability.
IN NO EVENT WILL TSO, TSO’S LICENSORS, AFFILIATES, AND OUR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, (COLLECTIVELY, “TSO PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA OR LOST PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR FROM THE CONDUCT OF YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, DEATH OR PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, OR THE TSO CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TSO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE DISSATISFIED WITH THE SERVICES, THE TSO CONTENT, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE TSO PARTIES TO YOU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNT YOU PAID TSO TO ACCESS OR USE THE SERVICES IN THE MOST RECENT TWELVE-MONTH PERIOD, OR (II) $50.
IN NO EVENT WILL THE TSO PARTIES BE LIABLE FOR THE DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION BY A PRACTICE USER FROM WHOM YOU RECEIVE HEALTH CARE SERVICES. TSO IS NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF A PRACTICE USER PROVIDING HEALTH CARE SERVICES.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You will indemnify, defend, and hold harmless the TSO Parties from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
18.1 your access to or use of the Services, or the TSO Content;
18.2 your User Content;
18.3 your violation of any of the provisions of these Terms;
18.4 any activity related to your registration by you or any other person accessing the Services through your Account, including, without limitation, negligent or wrongful conduct;
18.5 your conduct in connection with our Services; or
18.6 your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
TSO reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
To the fullest extent permitted by applicable law, you release TSO and the other TSO Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
20. Dispute Resolution; Binding Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH TSO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
20.1 Binding Arbitration.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 9 or 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 TSO agree (a) to waive your and TSO’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, resolved in a court, and (b) to waive your and TSO’s respective rights to a jury trial. Instead, you and TSO 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 jury in court).
20.2 No Class Arbitrations, Class Actions or Representative Actions.
You and TSO agree that any Dispute arising out of or related to these Terms or the Services is personal to you and TSO, 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 TSO 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 TSO 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. The arbitrator does not have the power to vary these class action waiver provisions.
20.3 Federal Arbitration Act.
You and TSO agree that these Terms affect interstate commerce and that the enforceability of this Section 20 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.
20.4 Notice; Informal Dispute Resolution.
You and TSO agree that each party will notify the other party in writing of any arbitrable 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 TSO shall be sent by certified mail or courier to 305 Cimarron Trl., Ste. 100, Irving, TX 75063. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your TSO 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 Section 5, 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 TSO 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 TSO may, as appropriate and in accordance with this Section 20, commence an arbitration proceeding or, to the extent specifically provided for in Section 20.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 9 OR 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 TSO AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR TSO WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND TSO WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and TSO agree that (a) any arbitration will occur in the State of Texas, Dallas County, or in the county in which you reside, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Texas and the United States, respectively, sitting in the State of Texas, Dallas County, 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.
20.6 Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS 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 arbitrable, 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. 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 any other provision of this Section 20, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section 20, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
20.7 Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 20 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 20 will remain valid and enforceable. Further, the waivers set forth in Section 20.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
20.9 Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by writing to: firstname.lastname@example.org. 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 21.
21. Governing Law; Venue.
These Terms and our relationship with you will be governed by the laws of the State of Texas, excluding its choice of laws rules. You and TSO each irrevocably agrees that any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis exclusively in the U.S. Distri ct Court for the Fourteenth District of Texas, or the state courts located in Dallas County, Texas. You and TSO each irrevocably consents to the personal jurisdiction of these courts and waives any and all objections to the exercise of jurisdiction by these courts and to this venue. Notwithstanding the foregoing, however, you and TSO agree that TSO may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
The Services may contain typographical errors or other inaccuracies and may not be complete or current. TSO reserves the right, but does not have the obligation, to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. TSO may refuse to provide Services that are based on inaccurate or erroneous information on the Services, including, without limitation, incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.
These Terms, along with any additional terms and conditions incorporated herein, constitute the entire agreement between you and us relating to our Services and the TSO Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Services or the TSO Content. If there is any conflict between the Terms and a separate signed written agreement between you and us relating to our Services or the TSO Content, the signed written agreement will control.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our Services. Your continued use of our Services will constitute your agreement to the changes we have made. The last date these Terms were revised is set forth at the top of these Terms.
The failure by you or us to enforce any provision of the Terms will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of the Terms is invalid or unenforceable, then the invalid or unenforceable provision will be removed from the Terms or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of the Terms will continue to be valid and enforceable. Nothing contained in these Terms will limit the ability of a party to seek an injunction or other equitable relief without posting any bond. The titles of the Sections of these Terms are for convenience only and will have no legal or contractual effect.
23. Contacting Us.
We encourage you to contact us at email@example.com if you have any questions concerning our Terms.
APPLE AND ANDROID DEVICE ADDITIONAL TERMS
If you access the Apps via a mobile device or tablet branded by Apple, Inc. or Android (“Hosts”) and running the Host’s iOS (a “Host Device”), the following terms (“Host Device Additional Terms”) are hereby made part of these Terms: