Website Terms of Use Agreement
VERSION 1.1 LAST REVISED ON: DECEMBER 23, 2020
The website located at http://pathcheck.org (the “Site”) is a copyrighted work belonging to PathCheck Foundation (“PathCheck”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE.
1. ACCESS TO THE SITE
1.1 License. Subject to this Agreement, PathCheck grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.
1.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to this Agreement. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
1.3 Modification. PathCheck reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that PathCheck will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
1.4 No Support or Maintenance. You acknowledge and agree that PathCheck will have no obligation to provide you with any support or maintenance in connection with the Site.
1.5 Ownership. Except with respect to Your Content (as defined below), if any, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by PathCheck or PathCheck’s suppliers. Neither this Agreement (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.1. PathCheck and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
1.6 Your Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that you, and not PathCheck, are entirely responsible for any content that you upload, post, e-mail, transmit or otherwise make available through the Site (“Your Content”). PathCheck is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Site, including Your Content, in PathCheck’s possession in connection with your use of the Site, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of PathCheck, its users or the public, and all enforcement or other government officials, as PathCheck in its sole discretion believes to be necessary or appropriate.
1.7 Feedback. If you provide PathCheck with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to PathCheck all rights in such Feedback and agree that PathCheck shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. PathCheck will treat any Feedback you provide to PathCheck as non-confidential and non-proprietary. You agree that you will not submit to PathCheck any information or ideas that you consider to be confidential or proprietary.
2. INDEMNIFICATION.
You agree to indemnify and hold PathCheck (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) Your Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. PathCheck reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of PathCheck. PathCheck will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
3. THIRD-PARTY LINKS, APPLICATIONS & ADS; OTHER USERS
3.1 Third-Party Links, Applications & Ads. The Site may contain links to third-party websites and services, applications and/or display advertisements for third parties (collectively, “Third-Party Links, Applications & Ads”). Such Third-Party Links, Applications & Ads are not under the control of PathCheck, and PathCheck is not responsible for any Third-Party Links, Applications & Ads. PathCheck provides access to these Third-Party Links, Applications & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Applications & Ads. You use all Third-Party Links, Applications & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, Applications & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
3.2 Release. You hereby release and forever discharge the PathCheck (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, any Third-Party Links, Applications & Ads). If you are a California resident, you hereby waive California Civil Code 1542 in connection with the foregoing, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
4. DISCLAIMERS
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND PATHCHECK (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
EXCEPT FOR PATHCHECK’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN PATHCHECK’S PRIVACY POLICY, PATHCHECK ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT) OR USER COMMUNICATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PATHCHECK (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF PATHCHECK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including for any use of the Site in violation of this Agreement. Upon termination of your rights under this Agreement, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of Your Content associated with your Account from our live databases. PathCheck will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account or deletion of Your Content.
7. GENERAL
7.1 Changes. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY PATHCHECK IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, PathCheck will make a new copy of the Terms of Use Agreement available at the Site. We will also update the “Last Updated” date at the top of the Terms of Use Agreement. Any changes to this Agreement will be effective thirty (30) calendar days following posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
7.2 Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and PathCheck and our employees, agents, successors, or assigns, regarding or relating to the Site or this Agreement shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in the Commonwealth of Massachusetts. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in the Commonwealth of Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the Commonwealth of Massachusetts for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in Section 7.2(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in Section 7.2(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in the Commonwealth of Massachusetts.
(g) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in this Agreement, any such termination shall not be effective until 30 days after the version of this Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided PathCheck with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and PathCheck and our employees, agents, successors, or assigns, regarding or relating to this Agreement or the Site shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
7.3 International Users. The Site can be accessed from countries around the world and may contain references to services, products and content that are not available in your country. These references do not imply that PathCheck intends to announce such services, products or content in your country. The Site is controlled and offered by PathCheck from its facilities in the United States of America. PathCheck makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other countries do so at their own volition and are responsible for compliance with local law.
7.4 Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from PathCheck, or any products utilizing such data, in violation of the United States export laws or regulations.
7.5 Disclosures. PathCheck is located at the address in Section 7.9. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product 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.
7.6 Electronic Communications. The communications between you and PathCheck use electronic means, whether you use the Site or send us emails, or whether PathCheck posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from PathCheck in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that PathCheck provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
7.7 Entire Terms. This Agreement constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to PathCheck is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without PathCheck’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. PathCheck may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
7.8 Copyright/Trademark Information. Copyright © 2020, PathCheck Foundation. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
7.9 Contact Information:
PathCheck Foundation
Attn.: Privacy/Legal
955 Massachusetts Ave., Suite 23
Cambridge, MA 02139
support@pathcheck.org