Last modified on: 04-13-2023
Caribou Terms of Use Agreement
The website located at www.getcaribou.com, www.caribouwealth.com, www.caribouadvisors.com (the “Website”) is a copyrighted work belonging to Caribou Health Technologies, Inc. (“Company”, “us”, “our”, and “we”).
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND SERVICES, INCLUDING CONSULTATION SERVICES, AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE AND USING THE SERVICES. BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, TOGETHER WITH CONSULTATION SERVICES (AS DEFINED BELOW), THE “SERVICES”), BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, PARTICIPATING IN CONSULTATION SERVICES, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. TO THE EXTENT YOU HAVE SEPARATELY ENTERED INTO AN AGREEMENT WITH COMPANY IN CONNECTION WITH USE OF THE WEBSITE AND SERVICES, THE TERMS AND CONDITIONS OF SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 11 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Supplemental Terms. Certain Services made available via the Website, including Consultation Services, may be subject to additional guidelines, terms, or rules, which will be either posted on the Website in connection with such Service or provided to you by Company before the provision of such Services. All such additional terms, guidelines, and rules are incorporated by reference into these Terms of Use. In the case of any inconsistencies between these Terms of Use and such additional terms, guidelines or rules, such additional terms, guidelines and rules shall control with respect to such Services. The Terms of Use and any applicable additional terms, guidelines or rules are referred to herein as the “Agreement.”
Modifications. PLEASE NOTE THAT THIS AGREEMENT IS subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Terms of Use Agreement available at the Website. Company will also update the “Last Updated” date at the top of the Terms of Use Agreement. If Company makes any material changes, and you have registered with us to create an Account (as defined in Section 3 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing users, provided that any material changes shall be effective for existing users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to existing users. Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1.10. “Site” means Caribou’s website through which Services and Advisor Services are provided, accessible at www.getcaribou.com.
1. THE SERVICES
1.1. Use of the Services. The Website and the Services, and the information and content available on the Website and the Services (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Company grants you a limited, non-exclusive, revocable, non-transferable right and license to access, use and reproduce portions of Company Properties for the sole purpose of using the Services for your personal or internal business purposes during the Term. Unless otherwise specified by Company in a separate license, your right to use any and all Company Properties is subject to the Agreement
1.2. Restrictions. You will not, and will not permit any third party to: (a) allow any third party to access the Company Properties, except as expressly allowed herein; (b) modify, adapt, alter or translate the Company Properties; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Company Properties for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Company Properties, except as permitted by law; (e) interfere in any manner with the operation of Company Properties or the hardware and network used to operate the Company Properties; (f) modify, copy or make derivative works based on any part of the Company Properties; (g) access or use the Company Properties to build a similar or competitive product or service; (h) attempt to access the Company Properties through any unapproved interface; or (i) otherwise use the Company Properties in any manner that exceeds the scope of use permitted under Section 1.1 or in a manner inconsistent with applicable law or this Agreement. You acknowledge and agree that the Company Properties will not be used, and are not licensed for use, in connection with any of your time-critical or mission-critical functions. You will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company or its licensors on the Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Agreement. Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the rights and licenses granted by Company pursuant to the Agreement.
1.3. Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Company Properties (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Company Properties or any part thereof.
1.4. No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Company Properties.
1.5. Open Source Software. Certain items of software may be provided to you with the Company Properties and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
2. CONSULTATION SERVICES
2.1. Consultation Services. Subject to payment of the associated fees, Caribou may provide you bespoke services in the form of one-on-one consultation meetings with healthcare advisors and other services connected with healthcare planning and decision-making (“Consultation Services”).
2.2. Non-Circumvention. Consultation Services may be provided by subcontracted healthcare advisors (“Healthcare Advisors”). You agree not to solicit or contact in any form such Healthcare Advisors for employment, contracting, or any other purpose not related to the provision and receipt of Consultation Services under this Agreement. It is a material breach of this Agreement for you to arrange for the sale or provision of its services from such Healthcare Advisor outside the context of this Agreement. This provision shall survive termination of this Agreement.
3. ACCOUNTS
3.1. Account Creation. In order to use certain features and services of the Company Properties, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Website. Company may suspend or terminate your Account in accordance with this Agreement.
3.2. Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements
4. YOUR DATA
As between the parties, you own all data and information submitted to Company by you or on your behalf, including without limitation by your financial advisor or financial advisory firm (“Financial Advisor”) (collectively, “Your Data”). You hereby grant to Company a non-exclusive right and license (with the right to sublicense to Healthcare Advisors) to: (a) copy, distribute, display, create derivative works of and use the Your Data to perform the Services for you and, if applicable, your Financial Advisor, and (b) during and following the expiration or termination of the Term, use the Your Data in an aggregated and anonymized form to: (i) improve the Company Properties and Company’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Company Properties, provided, however, that no statistics will be disclosed to third parties that solely relate to you without your consent. By submitting Your Data, either directly or indirectly (e.g. through your Financial Advisor), you hereby consent and authorize the Company, Healthcare Advisor and Financial Advisor to share Your Data with each other in connection with such parties’ provision of healthcare planning and decision-making services to you.
You shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data.
By submitting your personal information and using the Company Properties, you consent to the collection, use, reproduction, hosting, transmission and disclosure of such personal information in compliance with our Privacy Policy.
5. INTELLECTUAL PROPERTY
5.1. Ownership. The Company Properties, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Company Properties not expressly granted to you in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Company Properties, or any part thereof.
5.2. Assessment Reports and Materials. Subject to the terms and conditions of this Agreement, Company grants you a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable, non-sublicensable license to use the results, final assessments, reports, materials and documentation made available to you as part of the Services (“Assessment Reports and Materials”), solely for your own personal purpose. You agree that we may share such Assessment Reports and Materials with your Financial Advisors and Healthcare Advisors in connection with such parties’ provision of healthcare planning and decision-making services to you. All Assessment Reports and Materials shall be solely owned by Company.
5.3. Feedback. You hereby assign to Company all rights to any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Company Properties (“Feedback”) and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will not identify you as the source of any such Feedback.
6. FEES; PAYMENT TERMS
6.1. Fees. In consideration of the access rights granted to you and the Services performed by Company under this Agreement, unless otherwise agreed in writing, you will pay Company the applicable fees within thirty (30) days of the date on any Company invoice. Customer will maintain with Caribou complete, accurate and up-to-date Customer billing and contact information at all times.
6.2. Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you are solely responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Company Properties to you. You will make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
6.3. Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
6.4. Third Party Service Provider. The Company uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Third Party Service Provider”). By using Stripe to pay any applicable fees, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize the Company and Stripe to share any information and payment instructions you provide with each other and one or more payment provider(s) to the minimum extent required to complete your transactions.
7. DISCLAIMERS
7.1. Warranty Disclaimer. THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY AND ITS SUPPLIERS, INCLUDING HEALTHCARE ADVISORS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. COMPANY AND ITS SUPPLIERS, INCLUDING HEALTHCARE ADVISORS, MAKE NO WARRANTY THAT THE COMPANY PROPERTIES 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.
7.2. NOT INTENDED AS MEDICAL ADVICE. YOU ACKNOWLEDGE THAT THE INFORMATION OBTAINED THROUGH THE COMPANY PROPERTIES, INCLUDING WITHOUT LIMITATION THROUGH THE CONSULTATION SERVICES, FROM COMPANY, ITS EMPLOYEES OR CONTRACTORS (INCLUDING HEALTHCARE ADVISORS), IS NOT INTENDED AS MEDICAL ADVICE OF ANY KIND NOR IS IT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR MEDICAL CONDITION. THE INFORMATION OBTAINED THROUGH THE COMPANY PROPERTIES, INCLUDING WITHOUT LIMITATION CONSULTATION SERVICES, SHOULD NOT BE INTERPRETED OR CONSTRUED IN ANY WAY AS A REPLACEMENT OR SUBSTITUTE FOR MEDICAL ADVICE PROVIDED BY YOUR HEALTHCARE PROVIDER. YOU SHOULD NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE OR TREATMENT FROM THEIR HEALTHCARE PROVIDER DUE TO ANY INFORMATION OBTAINED THROUGH THE COMPANY PROPERTIES, INCLUDING WITHOUT LIMITATION CONSULTATION SERVICES.
7.3. 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.
7.4. Prices are estimates only. Any reports or information given is intended for informational purposes only and to provide guidance and education to help facilitate your health insurance choices before you contact an insurance company or independent agent. While the Company strives to keep information up-to-date, information is constantly changing and Company cannot guarantee that the information provided is accurate and complete. Any choices made based on these reports and information are solely at your own risk. Prices are estimates and should be confirmed with a licensed agent. Costs are subject to change annually. Guidance is not intended as insurance advice.
8. INDEMNIFICATION.
You agree to indemnify and hold Company (and its affiliates, officers, employees, contractors, licensors, suppliers and agents) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (a) your use of, or inability to use, the Company Properties; (b) Your Data; (c) any arrangements you make based on information obtained on or through the Company Properties, including via Consultation Services; (c) your violation of this Agreement; or (d) your violation of applicable laws, rules or regulations. This provision does not require you to indemnify any of the above parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Company Properties.
9. CONFIDENTIALITY.
You acknowledge and agree that the software and any related documentation provided to you as part of the service may contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree to use such proprietary information only for the purposes of using the service as permitted in the Terms of Use and not to disclose such proprietary information to any third party without the express written consent of the company. You also agree to take reasonable precautions to prevent any unauthorized disclosure of the software and related documentation. This includes, but is not limited to, keeping the software and related documentation in a secure location and not sharing login credentials or access to the software with any unauthorized individuals. The company will not be held responsible for any unauthorized use or disclosure of the software or related documentation due to your failure to maintain the confidentiality of such information.
10. SECURITY.
The company is committed to protecting the security of the service and your personal information. The company has implemented appropriate technical and organizational measures to protect the service and your personal information from unauthorized access, use, or disclosure. However, the company cannot guarantee that the service or your personal information will always be secure. You acknowledge that there are inherent risks in using the internet and electronic communications, and you agree to assume the risk of any unauthorized access to or use of your personal information. You agree to promptly notify the company if you become aware of any security breach or other unauthorized access to or use of the service or your personal information.
11. AVAILABILITY.
The company will make reasonable efforts to ensure that the service is available at all times, but cannot guarantee that the service will be uninterrupted or error-free. There may be periods of scheduled downtime for maintenance or upgrades, and the company will make reasonable efforts to inform you in advance of such downtime. The company will not be liable for any losses or damages resulting from any periods of downtime or unavailability of the service. You acknowledge that the service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. The company is not responsible for any delays, delivery failures, or other damages resulting from such problems.
12. LIMITATION OF LIABILITY
12.1. Types of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS CONTRACTORS (or its affiliates, officers, employees, contractors (including Healthcare Advisors, licensors, suppliers or agents), BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE COMPANY PROPERTIES 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. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
12.2. Amount of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING CONTRARY HEREIN, COMPANY’S and its affiliates’, officers’, employees’, contractors’ (including Healthcare Advisors’), licensors’, suppliers’ and agents’ LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF COMPANY OR ITS AFFILIATES, OFFICERS, EMPLOYEEs, CONTRACTORS (INCLUDING HEALTHCARE ADVISORS), LICENSORS, SUPPLIERS OR AGENTS FOR (i) DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’s NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY SUCH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3. User Content. EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER DATA, INFORMATION, OR CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
13. Term. Subject to this Section, this Agreement will remain in full force and effect while you use the Company Properties, including the utilization and/or receipt of Consultation Services. Company may suspend or terminate your rights to use the Company Properties (including your Account and/or your right to receive Consultation Services), in whole or in part, at any time for any reason at our sole discretion, including for any violation of this Agreement. Upon termination of your rights under this Agreement, your Account and right to access and use the Company Properties will terminate immediately. You understand that any termination of your Account may involve deletion of Your Data associated with your Account from our live databases. Company 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 Data.
14. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
14.1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Company Properties, to any products sold or distributed through the Company Properties, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Company 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). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
14.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Legalinc Corporate Services Inc., 651 N Broad Street, Suite 206, Middletown, Delaware 19709. 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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4. Waiver of Jury Trial. YOU AND COMPANY 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 Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or ury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated
14.6. 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: info@getcaribou.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company 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.
14.7. Severability. Except as provided in Section 11.5 (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.
14.8. Survival of Agreeement This Arbitration Agreement will survive the termination of your relationship with Company.
14.9. Modifications. Notwithstanding any provision in this Agreement to the contrary, Company agrees that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: info@getcaribou.com.
15. THIRD PARTY WEBSITE. For your convenience, the Company Properties may provide links or pointers to third-party sites. Company makes no representations about any other websites that may be accessed from the Company Properties. If you choose to access any such sites, you do so at your own risk. We have no control over the contents of any such third-party sites and accept no responsibility for such sites or for any loss or damage that may arise from your use of them. You are subject to any terms and conditions of such third-party sites.
16. GENERAL PROVISIONS.
16.1. Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company 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”).
16.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3. Force Majeure. Company 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.
16.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Company Properties, please contact us at: info@getcaribou.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.
16.5. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company 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 the State of Delaware.
16.6. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, 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 AGREEMENT.
16.7. Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: info@getcaribou.com.
16.8. 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.
16.9. Severability. If any portion of this 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.
16.10. Export Control. You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) 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 Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties 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 Company 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 Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.11. 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.12. Entire Agreement. 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.