Last Revised on January 7, 2013
IMPORTANT NOTICE: THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION, A WAIVER OF JURY TRIAL AND A WAIVER OF CLASS ACTION CLAIMS. Please review Section 19B [anchor link] of this Agreement for details.
Certain areas of the Site (and your access to or use of certain Service) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site or Service, as applicable.
If you are registering or using Service on behalf of or in connection with your employment or engagement with a company, entity, or organization, including any school or other educational institution (collectively “Subscribing Organization”), you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms, and you hereby do agree to be bound by this Agreement on behalf of such Subscribing Organization. In such a case, references to “you” in these terms shall be construed to mean you, the Subscribing Organization, and any other individual that uses the Service on the Subscribing Organization’s behalf or in connection with their employment with or engagement by such Subscribing Entity. To the extent your Subscribing Organization has a separate written agreement with Pathbrite, that agreement will define the order of precedence between this Agreement and that separate agreement with respect to such Subscribing Organization, provided that you remain individually bound by these terms with respect to your use of the Service.
1. About Our Service.
You acknowledge, consent, and agree to never use another Member’s account without permission. When creating your account, you represent and warrant that the information you provide is accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Pathbrite immediately of any breach of security or unauthorized use of your account by sending us an email to firstname.lastname@example.org. Although Pathbrite will not be liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of Pathbrite or others due to such unauthorized use.
You may control your Member profile and how you interact with the Service by changing the settings in your Settings panel. By providing Pathbrite your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail (“Service messages”). We may also use your email address to send you other messages, including without limitation, messages about changes to features of the Service and special offers (“offer messages”). If you do not want to receive such offer messages, you may opt out or change your preferences in your Settings Panel. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. Opting out, however, does not mean that we cannot send you Service messages.
2. Pathbrite Courses
If you are using the “Courses” feature of the Pathbrite Service (the “Course Service”) to create or access courses (each a “Course”) and associated materials, these additional terms apply. Teachers create Courses by posting materials and information related to the Course, such as assignments and Portfolio templates, to the Service. Teachers may invite Students or other Teachers to join Courses. Students (and other Users where the course, or certain course-pages within the course are made “public” and generally readable by other Students in the course) may use the Site to access Courses and to post Portfolios. Your use of the Course Service is subject to the additional terms below.
A. Special Terms for Use by Teachers.
If you are a teacher, principal, professor, or other education professional (“Teacher”) using the Service to create and administer Courses, the following terms apply to you:
(i) You represent and warrant that you have permission from your school and/or district, as applicable (“School”), to enter into this Agreement and to use the Services as part of your curriculum. If you are entering into this agreement on behalf of your School, you further represent and warrant that you have authority to bind your School to the terms of this Agreement.
(ii) If Pathbrite has contracted directly or indirectly with your School you represent, warrant, covenant, and agree that your use of the Course Service is within the scope of the agreement between Pathbrite and your School. Without limiting the generality of the foregoing, you acknowledge that the Family Educational Rights and Privacy Act (“FERPA”) may apply to your use of the Service. You acknowledge that certain information that you input into the Service may be considered student education records under FERPA (“Educational Records”), and you represent, warrant, and covenant that your School has obtained appropriate written permission from the parent or eligible student in order to release Educational Records to Pathbrite for use in connection with the operation of the Service, as provided herein. You further represent, warrant, and covenant and agree you and the School will be solely responsible for maintaining backup copies of all Educational Records and providing parents or eligible students access to Educational Records for the purposes of inspecting, reviewing, and correcting any information in such records. You further understand and acknowledge that the Children’s Online Privacy and Protection Act (“COPPA”) prohibits online service providers from knowingly collecting personally identifiable information from children under 13 of age without verifiable parental consent, and you accordingly agree you will not, and you are prohibited from, inviting or authorizing children under the age of 13 to join a Course or use the Service in any way.
(iii) In some circumstances we may decline to grant a Teacher authority to invite Students to a Course even where the above conditions have occurred. For example, a School may request that only a select group of Teachers (such as school principals) be given authority to invite Students to use the Course Services. You represent, warrant, and covenant that your access of the Course Service is consistent with the scope of your authorization from your School.
B. Special Terms for Use by Students.
If you are a student accessing and using a Course you have been invited to (a “Student”), the following additional terms apply to you:
(i) This Service is intended solely for Users who are 13 years of age or older, and any registration, use or access to the Service by anyone under 13 is expressly prohibited, and a violation of this Agreement. By using the Course Service, you represent and warrant that you are 13 years of age or older.
(ii) Only those Students who have been invited by a Teacher to join a specific Course may access that Course and use the Course Service. You represent, warrant, covenant, and agree that you will not access a Course or use the Course Service unless you are invited by Teacher who is authorized to give you access to that Course and the Course Service.
(iii) In general, most of the information that is provided to Pathbrite is provided directly by the Student, not the Teacher or the School. However, certain information that may be considered a Educational Record, such as grades, may be provided by Teachers to Pathbrite. You hereby authorize and consent to Pathbrite storing and accessing Educational Records, and to the extent that you are under eighteen years of age, you represent, warrant, and covenant that you have obtained permission for the release of your educational records to Pathbrite in connection with Pathbrite’s operation of the Service from your parent, legal guardian, or other person authorized to provide such permission.
3. Use of the Pathbrite Services
Subject to the terms and conditions of this agreement, Pathbrite grants you permission to use the Service for your personal, non-commercial purposes only. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Pathbrite servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) using any manual or automated means to extract and/or compile content from the Service for any commercial or non-commercial purpose, such as collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) bypassing the measures we may use to prevent or restrict access to the Service; (xii) for any illegal purpose of in connection with illegal activities (xiii) removing, circumventing, disabling, damaging or otherwise interfering with an security-related features of the Service, or features that enforce limitations of use of the Service; (xiv) threatening, harassing, abusing, slandering, defaming or otherwise violating the legal rights (such as rights of privacy and publicity) of others; or (xv) undertaking, causing, permitting or authorizing the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the Service, or User Content, or any other part thereof, except solely to the extent permitted by law, or otherwise attempting to use the service or access any of the Service other than as intended.
Pathbrite may permanently or temporarily terminate, suspend, or otherwise refuse to permit your account and/or access to the Service without notice and liability for any reason, including if in Pathbrite’s sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
The Pathbrite Service is subject to scheduled and unscheduled service interruptions. All aspects of the Service are subject to change or elimination at Pathbrite’s sole discretion and we are not obligated to provide you notice of such change or elimination. Pathbrite reserves the right to interrupt the Service with or without prior notice for any reason or no reason. You agree that Pathbrite will not be liable to you for any interruption of the Service, delay or failure to perform, or you inability to access your account or materials posted by you or that you wish to make available to others.
You are solely responsible for your interactions with other Pathbrite Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Pathbrite shall have no liability for your interactions with other Users, or for any User’s action or inaction.
4. User Content.
Some areas of the Service may allow Users to post feedback, comments, questions, multimedia, including, without limitation, photos, videos, links, notes, files, and audio, and other information (“User Content”). You are solely responsible for your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
Certain information regarding students is governed by the Family Educational Rights and Privacy Act (FERPA) or other laws and agreements concerning privacy and private information. No one should submit any information to the Service regarding another person (e.g. student) that they do not have the legal right to submit.
You agree. represent, and warrant, that you will not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree, represent, and warrant, that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. To the extent that your User Content contains music and/or other multimedia as listed above, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics), sound recording, and other multimedia contained in such User Content and have the power to grant the license granted below. Pathbrite reserves the right, but is not obligated, to reject and/or remove any User Content that Pathbrite believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Pathbrite takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Pathbrite is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that Pathbrite shall not be liable for any damages you allege to incur as a result of such User Content.
5. License Grant.
You retain ownership of all of your Intellectual Property Rights to any User Content you submit, post or display on or through the Service, and your use of the Service does not transfer any ownership of rights from you to Pathbrite. However, in order for us to provide the Service, we need certain rights and permissions from you authorizing us to use your User Content. Accordingly, by posting any User Content on the Service, you grant to Pathbrite, for use in connection with providing and promoting the Service to you and other Users, a royalty-free, sublicensable, transferable, non-exclusive, worldwide license for so long as your account on the Service remains active to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
The foregoing license authorizes Pathbrite to make your User Content available through the Service based on the settings you choose. You may remove certain User Content postings at any time. If you choose to do so, or if you terminate your account through the Service, or if you notify Pathbrite by email at [email] that you wish to terminate or delete your account, we will use commercially reasonable efforts to remove your User Content from active user databases on the Service promptly, but your User Content may remain in backup and archive systems indefinitely.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, personal (non-transferable and non sublicensable) license to use the Service. Pathbrite reserves all rights and Intellectual Property Rights not expressly granted herein in the Service and the Pathbrite Content (as defined below). Pathbrite may terminate this license at any time for any reason or no reason.
6. Our Proprietary Rights.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, materials, information and User Content (the “Pathbrite Content”), and all Intellectual Property Rights related thereto, are as between you and Pathbrite, the exclusive property of Pathbrite and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Pathbrite Content. Use of the Pathbrite Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Pathbrite under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Pathbrite does not waive any rights to use similar or related ideas previously known to Pathbrite, or developed by its employees, or obtained from sources other than you.
This Service is intended solely for Users who are thirteen (13) years of age or older, and any registration, use or access to the Service by anyone under 13 is unauthorized, unlicensed, and in violation of this Agreement. You must be at least thirteen (13) years of age to use the Service. By agreeing to the Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age (ii) that you have not previously been suspended or removed from the Service and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
8. Paid Services.
A. Billing Policies. Certain aspects of the Pathbrite Service may be provided for a fee or other charge. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Pathbrite Service, you agree to the pricing, payment and billing policies applicable to such fees and charges, posted or linked at http://beta.Pathbrite.com/ Pathbrite may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion.
B. No Refunds. You may cancel your Pathbrite Account and/or Funding Account at any time; however, there are no refunds for cancellation. As permitted under the terms of this Agreement, Pathbrite has the right at any time for any reason or no reason to suspend or terminate your Account and/or Funding Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice, refund, obligation, or liability to you. In the event that Pathbrite suspends or terminates your Pathbrite Account, Funding Account, or this Agreement, you understand and agree that you shall receive no refund or exchange for any Pathbrite Currency, any unused time on a subscription, any license or subscription fees for any portion of the Pathbrite Service, any content or data associated with your Pathbrite Account, or for anything else. You acknowledge that Pathbrite has the perpetual and irrevocable right to delete any or all of your content and data (including your fictional property) from Pathbrite’s servers and from the Pathbrite Service, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party.
C. Paid Content. When using the Pathbrite Service, you may accumulate fictional property related to the Pathbrite Service, including without limitation points, objects, items, scripts, equipment, or other value or status indicators that reside as data on Pathbrite’s servers. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT THESE DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON PATHBRITE’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN PATHBRITE’S SOLE DISCRETION. PATHBRITE DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY SUCH DATA RESIDING ON PATHBRITE’S SERVERS.
D. YOU UNDERSTAND AND AGREE THAT PATHBRITE HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE IN WHOLE OR IN PART ANY CONTENT RELATED TO THE PATHBRITE SERVICE, INCLUDING WITHOUT LIMITATION DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON PATHBRITE’S SERVERS, AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, notwithstanding these efforts, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information and your User Content at your own risk.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Pathbrite’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
- 1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- 2. Identification of the copyrighted work that you claim has been infringed;
- 3. Identification of the material that is claimed to be infringing and where it is located on the Service;
- 4. Information reasonably sufficient to permit Pathbrite to contact you, such as your address, telephone number, and, e-mail address;
- 5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- 6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Name: Christopher Gray
Attn: DMCA Notice
Address: 580 Howard St., Unit 401,
San Francisco, CA 94105
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Pathbrite and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Pathbrite’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Pathbrite has adopted a policy of terminating, in appropriate circumstances and at Pathbrite’s sole discretion, members who are deemed to be repeat infringers. Pathbrite may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
12. Additional Representations and Warranties.
You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
a. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
b. Your User Content and Pathbrite’s use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
c. Pathbrite may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
13. Third-Party Content
A. Pathbrite may contain or display through the Services various information, and other materials or content from third parties, including User Content (“Third Party Materials”). The display on or through the website and Services of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval of Pathbrite by any such third party or any affiliation between any such third party and Pathbrite. Furthermore, in using and accessing the Service, you agree that Pathbrite is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Pathbrite’s display of specific Third Party Materials does not suggest a recommendation by Pathbrite of the third party or any products, plans or service offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Pathbrite will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.
B. Websites, Advertisers or Services.
You agree to defend, indemnify and hold harmless Pathbrite and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code. Pathbrite 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 may not settle any matter without prior written consent from Pathbrite.
15. No Warranty.
THE SERVICE, THIRD-PARTY CONTENT, AND ANY OTHER SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, AND USE IS AT YOUR OWN RISK. . WITHOUT LIMITING THE FOREGOING, PATHBRITE, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ACCURATE OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
PATHBRITE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PATHBRITE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PATHBRITE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
16. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PATHBRITE, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL PATHBRITE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN INCLUDING THE USER CONTENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PATHBRITE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL PATHBRITE, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO PATHBRITE HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PATHBRITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
The Service is controlled and operated from its facilities in the United States. Pathbrite makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Pathbrite without restriction and without prior written notice, including in connection with the sale of its business or assets.
A. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Pathbrite, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and Pathbrite that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California, unless submitted to arbitration as set forth in the following paragraph.
(i) Generally. In the interest of resolving disputes between you and Pathbrite in the most expedient and cost effective manner, you and Pathbrite agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Pathbrite are each waiving the right to a trial by jury or to participate in a class action.
(ii) Exceptions. Notwithstanding subsection (i), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (a) bring an individual action in small claims court, (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (c) seek injunctive relief in a court of law, or (d) to file suit in a court of law to address intellectual property infringement claims.
(iii) Arbitrator. Any arbitration between you and Pathbrite will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pathbrite.
(iv) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Pathbrite’s address for Notice is: Pathbrite Inc., 580 Howard St., Unit 401, San Francisco, CA 94105. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Pathbrite may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Pathbrite shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Pathbrite shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Pathbrite in settlement of the dispute prior to the arbitrator’s award.
(v) Fees. In the event that you commence arbitration in accordance with these Terms, Pathbrite will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Pathbrite for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(vi) No class actions. YOU AND PATHBRITE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pathbrite agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(vii) Modifications. In the event that Pathbrite makes any future change to this arbitration provision (other than a change to the Pathbrite’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Pathbrite’s address for Notice, in which case your account with Pathbrite shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
(viii) Enforceability. If only Subsection (vi) of this Section 19B or the entirety of this Section 19B is found to be unenforceable, then the entirety of this Section 19B shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in this Section 19 shall govern any action arising out of or related to these Terms.
C. Notification Procedures. Pathbrite may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Pathbrite in our sole discretion. Pathbrite reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
Legal notices will be served on Pathbrite at: Pathbrite Inc., 580 Howard St., Unit 401, San Francisco, CA 94105.
Legal notices will be served on you at either the email or physical address you provide to Pathbrite during the registration process. Notice by email will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice given by either party by mail will be deemed given three days after the date of mailing.
E. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Pathbrite’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. The Services hereunder are offered by Pathbrite, Inc., located at 580 Howard St., Unit 401, San Francisco, CA 94105; Pathbrite may be contacted by email at email@example.com.
This Agreement was last revised on January 7, 2013 and makes changes to the prior agreement dated October 27, 2011.