This Software License and Terms of Service Agreement (the “Agreement”) for the ExcellectConnect Software, the website at www.excellectconnect.com, and all other online properties and websites owned or operated by ExcellectConnect (together with the ExcellectConnect Software, the “Service”) is a legal contract between the individual accepting and agreeing to this Agreement (“you”) and ExcellectConnect. As used in this Agreement, “ExcellectConnect” means (i) ExcellectConnect, Inc. if you are a resident of the United States of America, or (ii) ExcellectConnect GmbH if you are not a resident of the United States of America.
Please read carefully the terms and conditions of this agreement. By clicking the “install” button to initiate the installation of the ExcellectConnect software, you acknowledge that you have read, understood, and agree to be bound by all of the terms and conditions of this agreement including the requirement of binding arbitration for all legal disputes. If you do not agree to all of the terms and conditions of this agreement, click the “i decline” button and the ExcellectConnect software will not be installed on your device. If you do not agree to this agreement, you must destroy, return or delete all copies of the ExcellectConnect software in your possession.
By clicking the “Install” button or by otherwise registering for, accessing or using the Service, you represent and warrant that you are Eligible (as defined below) and have not been previously suspended or removed from the Service by ExcellectConnect.
As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
1. The Service. ExcellectConnect provides the Service by establishing a secure Virtual Private Network (“VPN”) connection when connecting to the Internet. The Service’s VPN utilizes a proxy Internet Protocol (“IP”) address (a “Proxy IP Address”).
1.1 Free and Subscription Service. You may choose whether to use the free Service or the subscription-based or Premium Service (the “Paid Service”). If you choose to use the free Service, ExcellectConnect may deliver third-party advertisements (“Advertisements”) to you. If you choose to use the Paid Service, ExcellectConnect will not deliver any Advertisements to you.
1.2 Eligibility. The service is not available to persons who are not eligible or to any users previously suspended, terminated or removed from the service by ExcellectConnect. “Eligible” means, with respect to the Paid Service, 18 years of age or older, and with respect to the free Service, 16 years of age or older. By downloading, using or accessing the Service, you represent and warrant that you are Eligible or have the permission of a parent or guardian to use the Service. Notwithstanding the foregoing, if you are under 16 years of age, then you must not use or access the service at any time or in any manner.
3. Modification of this Agreement. ExcellectConnect reserves the right, at our discretion, to make non-material changes to this Agreement at any time. Please check this Agreement and any guidelines notified to you by ExcellectConnect periodically for changes. In the event that a change to this Agreement materially modifies your rights or obligations, we will make reasonable efforts to notify you at least 30 days in advance of the effective date of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to pay for the ExcellectConnect Software Paid Service, or through other reasonable means. If you do not agree to the changed Agreement you must discontinue your use of the Service. If you are a user of the ExcellectConnect Software Paid Service and you elect to discontinue use of the Service due to a material change in this Agreement, we will provide you with a refund as described in Section 9 below. All other changes are effective upon publication of the changed Agreement.
4. User Content
4.1 User Content Generally. Certain features of the Service, such as the ExcellectConnect Software Help Desk, may permit users to post content, including messages, reviews, data, text, and other materials (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
4.2 Limited License Grant to ExcellectConnect. By posting or publishing User Content, you grant ExcellectConnect a worldwide, non-exclusive, royalty-free, perpetual, irrevocable right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) without any compensation paid to you.
4.3 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
(A) You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize ExcellectConnect and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 4 and in the manner contemplated by ExcellectConnect and this Agreement; and
(B) your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third party.
4.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users of the Service post or publish, and will not be in any way responsible or liable for User Content. ExcellectConnect may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against ExcellectConnect with respect to User Content. To the fullest extent permitted by law, we expressly disclaim any and all liability in connection with User Content. If notified by a user of the Service or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, ExcellectConnect does not permit copyright-infringing activities on the Service.
4.5 Digital Millennium Copyright Act. It is ExcellectConnect’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act.
5. The ExcellectConnect Software
5.1 ExcellectConnect Software License. The Service, including the ExcellectConnect Software, is licensed, not sold, to you. Subject to the terms and conditions set forth in this Agreement, ExcellectConnect grants you a limited, revocable, nonexclusive, personal, nontransferable license during the term of this Agreement to install and use one (1) copy of the provided version of the ExcellectConnect Software in object code format, to access the Service for internal and personal purposes only, and on no more than five (5) Devices (as defined in Section 6.1 below). The ExcellectConnect Software is “in use” on a Device for purposes of this paragraph when it is loaded into the temporary memory (e.g., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM or other storage device) of a Device.
5.2 ExcellectConnect Software License Restrictions. You may not (and may not allow a third party to) rent, lease, sublicense, sell, assign, loan, use for timesharing or service bureau purposes or otherwise transfer the ExcellectConnect software or any of your rights and obligations under this agreement. You may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the ExcellectConnect Software by any means whatsoever, except to the extent that such restriction is expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; © attempt to circumvent any use restrictions; (d) modify or adapt the ExcellectConnect Software, merge the ExcellectConnect Software into another program or create derivative works based on the ExcellectConnect Software; or (e) use, copy or distribute the ExcellectConnect Software without ExcellectConnect’s written authorization, except that you may make one (1) copy of the ExcellectConnect Software for archival or backup purposes only.
5.3 Content Restrictions. You may not (and may not allow a third party to) copy, reproduce, capture, store, retransmit, distribute, or burn to cd (or any other format) any copyrighted content that you access or receive while using the ExcellectConnect software or the service. you assume all risk and liability for any such prohibited use of copyrighted content.
5.4 Recurring Payments for Paid Service using ExcellectConnect Software. When you purchase a subscription to ExcellectConnect’s Paid Service in connection with your use of the ExcellectConnect Software, ExcellectConnect will automatically renew your subscription to the Paid Service at the end of its initial term and at the end of each term thereafter. The renewal term will be for the same period of time as the initial term. This period of time is known as the Subscription Period.
At the conclusion of each subscription term, you will automatically be billed for the ExcellectConnect Paid Service for a renewal subscription term lasting a period of time equal to the Subscription Period. The ExcellectConnect Paid Service fee is non-refundable except as expressly set forth in this Agreement. Taxes may apply on the subscription fee. You agree to pay for the subscription that you select for the Paid Service and you authorize us to automatically charge the payment method our service provider has on file for your recurring payments.
If the payment mechanism (such as a credit card) we have on file for you is declined for payment of your Paid Service subscription fee, we may retry the payment mechanism at the same or lower rate. If we do not obtain payment, your Paid Service subscription will be canceled. If you provide us with a new form of payment and are successfully charged within 30 days after the renewal date, your new Paid Service subscription term will be based on the original renewal date and not the date of the successful charge. If your Paid Service is terminated, you may be entitled to a refund, subject to limitations provided in Section 9 of this Agreement.
You are responsible to canceling your subscription regardless of whether you receive any notice from ExcellectConnect about the renewal of that subscription. In the event that your payment mechanism expires prior to the renewal date of your subscription, you are responsible for updating a new payment mechanism in your ExcellectConnect account before the renewal date of your subscription to the Paid Service. To the fullest extent permitted by law, ExcellectConnect makes no representations or warranties about the continued availability of any particular form of payment method made available for use with the Service.
Several methods of cancelling the automatic renewal of your ExcellectConnect Paid Service subscription are available to you, and are described at the website https://support.google.com/googleplay/answer/7018481?co=GENIE.Platform%3DAndroid&hl=en. Once you have cancelled your automatic renewal, recurring subscription fees for ExcellectConnect Paid Service fees will no longer be charged to the payment method we have on file for your account, and your subscription will remain active only until the end of the term for which you have fully paid the ExcellectConnect Paid Service fee.
Unless you notify us before a charge that you want to cancel or do not want to auto renew, you understand your paid service subscription will automatically renew periodically and you authorize us to collect the then-applicable paid service subscription fee plus any applicable taxes, using any payment method we have on record for you.
ExcellectConnect currently uses third-party payment processors for electronic commerce. Our third-party e-commerce payment processor accepts payments through methods detailed on the applicable payment screen, which may include various credit cards. By using such third-party payment processors, you agree to their terms and conditions of use. Such third parties may charge fees to process payments. We may, but are not required to, pay certain fees at our sole discretion. To the fullest extent permitted by law, ExcellectConnect disclaims all liability with regard to any fees or problems you have with third-party payment processors.
6. The Service
6.1 Availability. You may use the ExcellectConnect Software solely to access the Service. A computer or other equipment enabled to access the Internet (a “Device”) is required to utilize the Service. You are solely responsible for ensuring that your Device is sufficient and compatible for use with the Service. The speed and quality of the Service may vary and the Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed.
6.2 Denial of Access; ExcellectConnect reserves the right to modify or discontinue the Service at any time without notice. If you are a user of the Paid Service, you may be entitled to a refund as described in Section 9 below. ExcellectConnect may deny access to the Service without any prior notice if you breach this Agreement, and may terminate your use of the Service as described in Section 9 below. You shall not allow any third party to access the Service from your Device.
6.3 Trusted Publisher. As part of the Service, ExcellectConnect may install its own certificate on your Device as a Trusted Publisher (as defined by your Internet browser). ExcellectConnect reserves the right to make future installs or updates to such certificates on your Device in connection with providing the Service at any time without notice.
7. Prohibited Conduct.
BY USING THE ANCHORFREE SOFTWARE OR THE SERVICE YOU AGREE NOT TO:
7.1 use the ExcellectConnect Software or the Service for any fraudulent, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person;
7.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the Service, the ExcellectConnect Software or any Materials (as defined in Section 10, below);
7.3 delete the copyright or other proprietary rights on the ExcellectConnect Software or the Service;
7.4 use the ExcellectConnect Software or the Service for any illegal purpose, or in violation of any local, state, national, or international law;
7.5 use the Service or the ExcellectConnect Software for any commercial use, it being understood that the ExcellectConnect Software and the Service is for personal, non-commercial use only;
7.6 use the ExcellectConnect Software or the Service if you are not Eligible;
7.7 remove, circumvent, disable, damage or otherwise interfere with security-related features of the ExcellectConnect Software or the Service, features that prevent or restrict use or copying of the ExcellectConnect Software, or features that enforce limitations on the use of the Service;
7.8 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or the ExcellectConnect Software or any part thereof, except to the extent that such restriction is expressly prohibited by applicable law;
7.9 modify, adapt, translate or create derivative works based upon the ExcellectConnect Software or the Service or any part thereof; or
7.10 intentionally interfere with or damage operation of the Service, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
8. Third-Party Transactions
8.1 Advertisements. If you are using the free Service, ExcellectConnect may deliver third-party Advertisements. You hereby acknowledge and consent that ExcellectConnect may deliver third party Advertisements to overlay a page or as an interstitial. ExcellectConnect reserves the right to prevent your access to the Service or continued use thereof if you violate this Agreement, engage in fraud or copyright infringement, or employ an ad-blocking product or other software or mechanism that prevents you from participating in advertising programs, surveys, or other activities that involve delivery of Advertisements or other monetization of the Service. ExcellectConnect does not endorse any information, materials, products, or services contained in or accessible through Advertisements. Accordingly, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. ACCESS AND USE OF ADVERTISEMENTS, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH ADVERTISEMENTS SITES IS SOLELY AT YOUR OWN RISK.
8.2 Third Party Policies. If You choose to access and use third-party websites, services or content, or purchase products from third parties, including without limitation through third-party payment vendors while using the Paid Service, or through Advertisements while using the free Service, your personal information may be available to a third-party content provider. If you choose to visit or use any third-party products or services, ExcellectConnect policies and this Agreement will not apply to your activities or any information you disclose while using third-party products or services or otherwise interacting with third parties. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies, if any, and not our policies. ExcellectConnect has no responsibility for any third party’s policies, or any third party’s compliance with them.
9. Termination; Refunds; Terms of Service Violations
9.1 Termination by ExcellectConnect. For users of the free Service, You agree that ExcellectConnect, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Service or the ExcellectConnect Software at any time, and that ExcellectConnect may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service may be effected without prior notice and you agree that ExcellectConnect will not be liable to you or any third party for any such termination.
For users of the Paid Service, You agree that ExcellectConnect, in its sole discretion, for any or no reason, may terminate your use of the Service or the ExcellectConnect Software at any time, and that ExcellectConnect may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. If such termination or discontinuation occurs during a period for which you are a paid subscriber to the Paid Service, You may be entitled to a pro-rated refund of your current subscription payment amount in connection with your use of the Paid Service. If your account is terminated due to your breach of this Agreement during the relevant cancelation period, you will not be eligible for a refund. All refunds are issued at ExcellectConnect’s sole discretion and any request for refund may be denied for any or no reason. You agree that any termination of your access to the Service may be effected without prior notice and you agree that ExcellectConnect will not be liable to you or any third party for any such termination beyond the refund described in this Section 9.1. If you have been terminated from the Paid Service and wish to request a refund, please email customer service at firstname.lastname@example.org and describe the circumstances relating to the termination or discontinuation of your use of the Service. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies ExcellectConnect may have at law or in equity.
9.2 Termination by You. You may terminate this Agreement at any time by discontinuing use of all parts of the Service and certifying in writing to ExcellectConnect that all copies of the ExcellectConnect Software have been destroyed or deleted from any of your Device or other storage devices.
10. Ownership; Proprietary Rights. The ExcellectConnect Software and the Service are owned and operated by ExcellectConnect and its partners. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service or the ExcellectConnect Software provided by ExcellectConnect are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the ExcellectConnect Software or Service (excluding any Materials on third-party websites) are the property of ExcellectConnect or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to ExcellectConnect or its affiliates and/or third-party licensors. Except as expressly authorized by ExcellectConnect, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. ExcellectConnect reserves all rights not expressly granted in this Agreement.
11. Indemnification. To the fullest extent permitted by law, You agree to indemnify, save, and hold ExcellectConnect, its affiliated companies, contractors, subcontractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and partners (the “ExcellectConnect Entities”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your misuse of the ExcellectConnect Software or Service, any violation by You of this Agreement, or any breach of the representations, warranties, and covenants made by You herein. ExcellectConnect reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the ExcellectConnect Entities, and you agree to cooperate with ExcellectConnect’s defense of these claims. ExcellectConnect will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
12. Export. The ExcellectConnect Software and the Service may be subject to United States export controls. You may not export or re-export the ExcellectConnect Software without: (a) the prior written consent of ExcellectConnect, (b) complying with any applicable export control laws, and © obtaining all appropriate permits and licenses. In any event, You may not remove or export from the United States or allow the export or re-export of any part of the ExcellectConnect Software or the Service in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the ExcellectConnect Software and the Service are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by this Agreement. The ExcellectConnect Software and the Service may contain information that is controlled and restricted from export by the United States export controls restrictions, regulations, and laws described above (the “Controlled Information”). If ExcellectConnect, in its sole discretion, determines that it cannot implement the Service in a manner to exclude access to Controlled Information where required, if you are in a country or territory that is subject to such regulation, you shall not be provided access to the Service.
13. Disclaimers; No Warranties. The following provisions of this section 13 apply to the fullest extent permitted by law:
13.1 No Warranties. Anchorfree and the ExcellectConnect entities disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. No information, whether oral or written, obtained by you from ExcellectConnect or through the service will create any warranty not expressly stated herein. You expressly acknowledge that as used in this section 13 the term ExcellectConnect includes the ExcellectConnect entities.
13.2 “As is” and “As available” and “With All Faults”. You expressly agree that use of the service and the ExcellectConnect software is at your sole risk. the service, the ExcellectConnect software and any data, information, third-party ExcellectConnect software, services, or applications made available in conjunction with or through the service are provided on an “as is” and “as available”, “with all faults” basis and with no assurances that the ExcellectConnect software or the service will withstand attempts to evade security mechanisms or that there will be no cracks, bugs, disablements or other circumvention. ExcellectConnect and the ExcellectConnect entities do not warrant that the service will be uninterrupted or free of errors, viruses or other harmful components and do not warrant that any of the foregoing will be corrected. You understand and agree that you use, access, download the ExcellectConnect software and otherwise obtain or transmit materials, data, or other content while using the service at your own discretion and risk.
14. Limitation of Liability and Damages. The following provisions of this section 14 apply to the fullest extent permitted by law:
14.1 Limitation of Liability. Under no circumstances, including, but not limited to, negligence, will ExcellectConnect or the ExcellectConnect entities be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to this agreement or that result from your use of or your inability to use the service or ExcellectConnect software, or any other interactions with ExcellectConnect, even if ExcellectConnect or an ExcellectConnect authorized representative has been advised of the possibility of such damages.
14.2 Limitation of Damages. In no event will the total liability of ExcellectConnect or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers to you for all damages, losses, and causes of action arising out of or relating to this agreement or your use of the service or the ExcellectConnect software (whether in contract, tort including negligence, warranty, or otherwise), exceed the amount paid by you, if any, for accessing the ExcellectConnect software and the service during the twelve months immediately preceding the date of the claim or twenty five united states dollars, whichever is greater.
14.3 Basis of the Bargain. You acknowledge and agree that ExcellectConnect has offered the ExcellectConnect software and the service, set its prices, and entered into this agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and ExcellectConnect, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and ExcellectConnect. ExcellectConnect would not be able to provide the service or the ExcellectConnect software to you on an economically reasonable basis without these limitations.
14.4 Consumer End Users (Outside of the USA). This Section 14.4 applies only if you reside and use the Service and ExcellectConnect Software outside of the United States.
(A) Warranties. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of business outside of the U.S.A. The limitations or exclusions of warranties, remedies or liability contained in this Agreement apply to you to only the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
(B) Data Transfer. If You are accessing the Service from any region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the ExcellectConnect Software and the Service, which are governed by U.S. law and this Agreement, you may be transferring your personal information to the United States and you consent to that transfer.
15. Dispute Resolution and Arbitration
15.1 Generally. In the interest of resolving disputes between you and ExcellectConnect in the most expedient and cost effective manner, you and ExcellectConnect agree that any and all disputes arising out of or relating in any way to this Agreement or your use of the Service 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 this Agreement, 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 this Agreement. You understand and agree that, by entering into this agreement, you and ExcellectConnect are each waiving the right to a trial by jury or to participate in a class action.
15.2 Notwithstanding Section 15.1, you and ExcellectConnect agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek a temporary restraining order or preliminary injunctive relief in a court of law in aid of arbitration, or (iv) to file suit in a court of law to address intellectual property infringement claims.
15.3 Arbitrator. Any arbitration between you and ExcellectConnect will be conducted in English by a single arbitrator and will be governed by (i) the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), if you are a resident of the United States, or (ii) the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution (“SCAI”) in force on the date on which the Notice is submitted, if you are not a resident of the United States, in each case as modified by this Agreement (in either case, the “Rules”), and will be administered by, respectively, the AAA in case (i) and the SCAI in case (ii). The Rules and filing forms are available online at, respectively, www.adr.org or 800-778- 7879 (for the AAA), or www.swissarbitration.org or 41 44 217 40 50 (for the SCAI), or by contacting ExcellectConnect.
15.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party, 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”). For United States residents, ExcellectConnect’s address for Notice is: ExcellectConnect, Inc., PO Box 60429, Sunnyvale, CA 94088. For all other persons, ExcellectConnect’s address for Notice is: ExcellectConnect GmbH, Hansmatt 32, 6370 Stans, Switzerland. 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 ExcellectConnect may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or ExcellectConnect 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, ExcellectConnect shall pay you the greater of (i) the amount awarded by the arbitrator, if any, or (ii) the greatest amount offered by ExcellectConnect in settlement of the dispute prior to the arbitrator’s award, whichever is greater.
15.5 Fees. In the event that you commence arbitration in accordance with this Agreement, ExcellectConnect will reimburse you for your payment of the filing fee, unless your claim is for greater than US $10,000, in which case the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California for United States residents, and at a location to be agreed upon in Zürich, Switzerland for all other persons, provided that if the claim is for US $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 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 the United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, you agree to reimburse ExcellectConnect for all monies previously disbursed by it that are otherwise your obligation to pay under the 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.
15.6 No class actions. You and ExcellectConnect 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 ExcellectConnect 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.
15.7 Enforceability. If Section 15.6 above is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void.
16.1 Notice. ExcellectConnect may provide you with notices, including those regarding changes to this Agreement, by posting the notice through the Service. Notice will be deemed given twenty-four hours after posting.
16.2 Waiver. The failure of ExcellectConnect to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by ExcellectConnect.
16.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law except payments disputes filed by customer’s domiciled in the European Community or Switzerland will be treated according to Swiss law.
16.4 Jurisdiction. You agree that in the event of a dispute that is not subject to arbitration pursuant to Section 15, or if Section 15 is found to be unenforceable, any action at law or in equity arising out of or relating in any way to this Agreement or ExcellectConnect will be filed only in the state or federal courts located in the City and County of San Francisco, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
16.5 Severability. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
16.6 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ExcellectConnect without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
16.7 Survival. Upon termination or expiration of this Agreement for any reason, the following provisions will survive such termination or expiration: Sections 4.2, 5.3, and 10 through 16.
16.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the terms of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
16.9 Entire Agreement. This Agreement constitutes the entire agreement between you and ExcellectConnect relating to the subject matter herein and will not be modified except in writing, signed by both parties.
16.10 Time Limit for Claims. You and ExcellectConnect agree that any cause of action arising out of or related to the service or software must commence within one (1) year after the cause of action accrues. otherwise, such cause of action is permanently barred.
16.11 Disclosures. The Service and ExcellectConnect Software set forth hereunder are offered by ExcellectConnect, Inc., You may email ExcellectConnect at: email@example.com.