Effective Date: July 5th, 2022
IMPORTANT NOTICE:THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED UNDER THE SECTION TITLED Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis.
The Sites are offered and available to users who are 18 years of age or older. By using any of our Sites, you represent and warrant that you are of legal age to form a binding contract with the Company, and are at least 18 years of age.
Accessing any of our Sites and Account Security
We reserve the right to withdraw or amend our Sites, including any service or material we provide on any of our Sites, such as by disabling any Flowcode, Flowtag or Flowpage, in our sole discretion without notice. We will not be liable if for any reason all or any part of any of our Sites are unavailable at any time or for any period. From time to time, we may restrict access to some parts of any of our Sites, or entire Sites, to users, including, if applicable, registered users or those who may have signed up to use services available through our Sites.
You are responsible for both:
You consent to receiving electronic communications from us and represent that the recipient of every electronic communication sent in connection with your use of any of our Sites has agreed to receive such communications, and that you will not use any of our Sites to send unlawful or unsolicited electronic communications. You agree to receive all communications and notices that we provide in connection with the services, including communications related to our delivery of the Flowcode services and your purchase of a Subscription Plan via electronic means, including by email or in-service notification. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner and you agree to keep your account contact information, including email address, current.
Intellectual Property Rights and License
All of our Sites and their entire contents, features, and functionality (including all information, software, text, graphics, displays, images, video, and audio, and the design, selection, and arrangement thereof) (the "Content") are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
Subject to these Terms, dtx hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license to use the Sites for your own use only. This license does not include: (i) any resale or commercial use of the Sites; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Sites; (iv) any downloading or copying of account information for the benefit of another business, organization, or commercial entity; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Sites, in whole or in part. Downloading or copying the Sites (including the Content) for other than your own use is expressly prohibited without the prior written permission of dtx. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Sites (which includes the Content), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Sites or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of dtx.
Except as we may expressly authorize you, you must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content, except as follows:
You must not:
You are solely responsible for all information, materials, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas and other data, materials, and content, including the selection and arrangements thereof, that you create on our Sites, upload to Flowpages or otherwise provide, handle or link to using the Sites, whether created by you or another user (collectively, “User Content”). dtx is not responsible for the User Content of any user. If you have a problem or other claim relating to a third party’s User Content, or any other problem or other claim that relates to a third-party user, you will resolve the situation with that user directly and will not sue dtx regarding such User Content.
You hereby grant dtx an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, transferable, sublicensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on your User Content, in whole or in part, in any media, for the purpose of operating and advertising the Sites.
Content Takedown Requests
dtx complies with applicable intellectual property laws and has a policy of terminating the accounts of repeat infringers. To assist with this policy, dtx follows a take-down procedure for purported copyright infringement. If you believe that your work has been used in a way that constitutes copyright infringement, please provide the following information to the dtx Copyright Agent:
The dtx Copyright Agent can be reached as follows:
the dtx company
45 Grand Street
New York NY 10013
Alternate names: Flowcode, flowcode.com, Flowpage, flowpage.com, flow.page, Flowtag
Email: [email protected]
If we remove or disable access in response to such a notice, or plan to, we may notify the user responsible for the content so that they can object to your request.
When you create a Personal Flowpage or use your Personal Flowtag or Personal Flowcode, you may receive information about other users. You may collect, use and disclose this information only in compliance with law, including any laws that require notices or consent, including as relates to cookies, tracking technologies, sharing data with third parties, or direct marketing. You are responsible for your compliance with such laws. Without limiting the foregoing, we reserve the right to prevent user information from being disclosed to or by you where we deem it appropriate to address legal requirements, such as by applying to your Personal Flowpage, and to any related data, any opt-outs or other privacy preferences communicated to us by or on behalf of users.
We may, from time to time, offer certain subscription services on or through one or more of our Sites (a "Subscription Plan"), including Flowcode Free, Flowcode Pro, Flowcode Pro Plus and Flowcode Pro Flex. We reserve the right to suspend, withdraw or terminate any Subscription Plan service at any time in our sole discretion, whether paid or free, subject to the Refund Policy described further below. Without limiting the foregoing, we reserve the right to charge for any services that currently are free. If we do, we will notify you by email to the address you provided us as part of your subscription to inform you of how long you have to use the services for free before the changes become effective.
If you sign up for a Subscription Plan, you are subscribing to an automatically renewing subscription requiring recurring payments at the stated frequency that you select on the Plans page (e.g., monthly or annually). This section describes Subscription Plans purchased directly with us. If you purchase a Subscription Plan through a third-party App store, the payment terms and conditions of the applicable App store will apply, as discussed in Online Purchases and Other Terms and Conditions below.
When you sign up for a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a payment card, that you are authorized to use. If you purchase or sign up for a Subscription Plan, you agree that:
If any Subscription Plan fee is not paid in a timely manner, or we are unable to process your transaction using the payment method on file, and you do not promptly provide a new eligible payment method through the Flowcode Plan Subscription section of the Billing page in your account or bring your balance current within ten (10) days after we provide you with notification that your account is in arrears, we reserve the right to suspend, disable, cancel or terminate your access to the Site or services or cancel your Subscription Plan or convert it into a Flowcode Free account.
Promotional codes may only be used for your first subscription term. If you purchased your Subscription Plan with a promotional code, each time your Subscription Plan renews, you will be charged the full billing amount. If your Subscription Plan is ever terminated for any reason or you otherwise purchase another subscription, you will not be eligible to use a promotional code.
If your payment details change, your card provider may provide us with updated card details. We may use these new details in order to help prevent any interruption to the Subscription Plan and services. If you would prefer to opt out from this service, please contact us. If you would like to use a different payment method or if there is a change in payment method, please visit the Flowcode Plan Subscription section of the Billing page in your account to update your billing information.
Your Subscription Plan includes one or more additional features as compared to the Flowcode Free service, which may include an increase in the number Flowcodes, customization and management options, or advanced analytics, among other features. From time to time, we may choose in our sole discretion to add, modify, or remove benefits and features from a Subscription Plan. A list of the current features included in your Subscription Plan may be found here: www.flowcode.com/plans. We do not represent or warrant that particular benefits or features will be offered indefinitely and reserve the right to change the prices for or alter the features and benefits associated with a Subscription Plan.
You may cancel your Subscription Plan at any time by clicking “Cancel Plan” under the “Flowcode Plan Subscription” section of the Billing page in your account or by emailing [email protected] If you cancel your monthly or annual subscription before the end of the then-current subscription term: (i) your access to the Subscription Plan benefits will be terminated and (ii) you will be downgraded to the Flowcode Free plan and any of your Flowcodes which are in excess of the Flowcode Free plan code threshold will be archived and re-directed to flowcode.com or another location of our choosing. Analytics will not be available for archived codes.
If you sign up for an individual (non-Enterprise) Flowcode Free or an individual (non-Enterprise) Subscription Plan using an email address with an email domain controlled by your employer (or by another entity that has issued you the email address for use on behalf of that entity) (hereinafter, “your employer”), and your employer has or obtains an Enterprise Plan, your employer will have the option to invite you to convert your account to one of the seats allocated to your employer under its Enterprise Plan. If you consent to such conversion, your employer will have full administrative privileges and permissions with respect to all User Content and data in or associated with your account, including all Flowcodes, Flowtags, Flowpages and contact information you have created, collected or stored. They will control your account, and we can follow their requests and instructions with respect to the account instead of yours.
If you are issued an Enterprise account, then the entity that issued it to you will have the privileges, permissions and control described above.
To the extent you collect and store personal information in your account, you are responsible for disclosing to the applicable data subjects this potential sharing of their data with your employer.
Unless required by applicable law, your Subscription Plan payments are non-refundable, provided that. if we suspend, withdraw or terminate any Subscription Plan service at any time, we may issue a pro-rata refund of any prepaid fees for services purchased but not rendered as of the date of such withdrawal or termination.
The Company name, the terms DTX, FLOWCODE, FLOWPAGE, POWERED BY FLOWCODE, FLOWCODE TV, DTC FRIDAY, and all logos and artwork associated with the foregoing terms, and all other product and service names, designs, and slogans appearing on our Sites are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on the Sites are the trademarks of their respective owners.
Additionally, you agree not to:
You agree to notify dtx immediately if you become aware that a child under 16 has created or is otherwise using any Flowcodes, Flowtags or Flowpages. If you become aware that a child under 16 has provided information through the contact information widget on your Personal Flowpage, you agree to delete that information and notify dtx. If you become aware that a child under 16 has provided information to dtx in other situations, you agree to notify dtx immediately.
Products or Services Accessed Through the Sites
We disclaim all liability or responsibility for any third-party product or service accessed through or making use of the Sites, including any third-party online property to which a Flowcode, Flowtag or Personal Flowpage links, and anything offered, provided, or promoted by a user through or in connection with the Sites or a Flowcode, Flowtag or Personal Flowpage (all of the above collectively “Third Party Services”), or any end user’s use thereof. You shall not use the Sites in any manner implying any partnership with, sponsorship by, or endorsement of Third Party Services by us. You will not suggest or imply that we are the author of or otherwise responsible for the views or content of the Third Party Services. You will not use the Sites or any dtx services in connection with any Prohibited Content, or any activities where the use or failure of the Sites could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on us in any manner.
Communications Decency Act Notice
Commercially available parental control protections (such as computer hardware, software or filtering services) may assist you in limiting access to material on the Internet that is harmful to minors. Current providers of such protections include McAfee and Symantec, as well as others available from this Bing search. Please note that we did not create these parental control tools, we have not tested or evaluated them and we do not endorse them. Any use of such tools is at your sole risk. You should not assume that these or any other third-party parental control protections will work well or at all in connection with the Service.
If you choose to provide us any comments, suggestions or recommendations regarding the Sites (in written or oral form) (“Feedback”), you further represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non- exclusive, royalty-free, perpetual, worldwide, transferable, sublicensable license to use, modify, prepare derivative works from, publish and distribute the Feedback, and (iv) irrevocably waive, and cause to be waived, against us and our users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your account or our Sites.
Monitoring and Enforcement; Termination
We have the right to:
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through any of our Sites. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, LICENSORS AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
Reliance on Information Posted
We do not warrant the accuracy, completeness, or usefulness of any information or materials presented on or through any of our Sites, including, for example, (i) information provided by any user of our Sites, (ii) information presented through a COVID check-in form, (iii) information we offer about the safety or risk of QR codes that you scan or content or links you scan or post. Any reliance you place on such information or materials is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information or materials by you or any other visitor to any of our Sites, or by anyone who may be informed of any of its contents.
Changes to any of our Sites
We may update the content of our Sites from time to time, but their content is not necessarily complete or up-to-date. Any of the material on any of our Sites may be out of date at any given time, and we are under no obligation to update such material. We may also stop providing the Sites or features of the Sites, to you or to users generally, or we may create usage limits for the Sites.
Additional Terms and Conditions for Online Purchases
Online Purchases of dtx Products
For any dtx physical products ("Products") purchased on flowcode.com or any online store on flowcode.com, including without limitation, NFC tags, Flowcode stickers, table tents, signs or other paper goods, the following additional terms shall apply:
We may from time to time, offer the ability to use, create or purchase a license to use “whitelabeled” Flowcode redirect domains and/or Flowpage domains (for example, “[yourname].flowcode.com” and “[yourname].flowcode.com/page”). To the extent that you use, create or purchase a license to use any such whitelabeled Flowcode or Flowpage domain (“Whitelabeled Domain”), you acknowledge and agree that we reserve the right to terminate, suspend or cancel your access to such Whitelabeled Domain, or allow any third party to use the Whitelabeled Domain, or use it ourselves, in our sole discretion at any time, subject to providing a pro-rated refund of any prepaid fees for use of such Whitelabeled Domain following the effective date of termination of access.
Linking to any of our Sites
You may link to the homepage of any our Sites, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, partnership, approval, or endorsement on our part without our express prior consent.
Links from any of our Sites
If any of our Sites contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to or through any of our Sites, you do so entirely at your own risk and subject to the terms and conditions of use for such third-party websites.
dtx is based in the State of New York, in the United States. We provide these Sites for use only by persons located in the United States. We make no claims that any of our Sites or any of their respective content is accessible or appropriate outside of the United States. Access to any of our Sites may not be legal by certain persons or in certain countries. If you access any of our Sites from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Additional Terms for Our iOS App
If you access the App via the Apple, Inc. ("Apple") App Store ( including, without limitation, for iPhone, iPad, iTouch, and iWatch) (each an "iOS App"), the following additional terms also apply:
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or any of our Sites - or the destination a person reaches after scanning a Flowcode or Flowtag - will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Sites for any reconstruction of any lost data. If we offer a feature that warns you about potential risks from QR codes that you scan or content or links you scan or post, we do not guarantee or warrant that this feature will identify every important risk. TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF ANY OF OUR SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES OR ANY WEBSITES LINKED TO OUR SITES, OR DUE TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON ANY OF OUR SITES, OR ON ANY WEBSITE LINKED TO ANY OF OUR SITES.
YOUR USE OF ANY OF OUR SITES, THEIR RESPECTIVE CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES OR THIRD-PARTY WEBSITES LINKED THROUGH OUR SITES (INCLUDING ANY COVID CHECK-IN FORM THAT WE HOST) IS AT YOUR OWN RISK. OUR SITES, CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF ANY OF OUR SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT ANY COVID CHECK-IN FORM THAT WE HOST WILL CONTAIN ALL COVID SYMPTOMS OR ACCURATELY IDENTIFY INFECTED PEOPLE, OR THAT ANY OF OUR SITES, CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY OF OUR SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH ANY OF OUR SITES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, ANY OF OUR SITES, ANY WEBSITES LINKED TO ANY OF OUR SITES, OR ANY CONTENT OR SERVICES PROVIDED THROUGH OR ON ANY OF OUR SITES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT DTX’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM DTX’s OWN INTENTIONAL OR RECKLESS CONDUCT.
Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Initial Dispute Resolution
dtx wants to address your concerns without needing a formal legal case. Before filing a claim against dtx, you agree to try to resolve the Dispute informally by contacting [email protected] . Similarly, dtx will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Dispute is not resolved within 30 days after the email noting the Dispute is sent, you or dtx may initiate an arbitration proceeding as described below. Please note that your failure to engage in this process could result in the award of fees against you in arbitration.
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below.
All claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Additional Information About JAMS Arbitration Rules
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this “Dispute Resolution, Governing Laws and Agreement to Arbitrate on an Individual Basis” Section while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
Location of Arbitration and Governing Law
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND DTX 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. Similarly, neither you nor dtx may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing (and as an illustrative but not exhaustive example), a claim to resolve any Dispute against dtx will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Further, notwithstanding any other provision herein, including provisions applicable to arbitration of disputes, either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
For any dispute not subject to arbitration (and excluding any action brought in small claims court), or any action to compel arbitration, stay proceedings pending arbitration or confirm, modify, vacate or enter judgment on the arbitrator’s aware, you and dtx agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the State of New York.
You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
30-Day Right to Opt Out
Changes to this Section
Waiver and Severability
Third Party Beneficiaries
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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Course of Conduct/Trade Practice
The section headings used herein are for convenience only and shall not be given any legal import.
Your Comments and Concerns
Our Sites are operated by the dtx company, 45 Grand St., New York, NY 10013. If you have questions or concerns about the Sites, please email us at [email protected]