1. Understanding and Acceptance of Terms
announcements and administrative messages, that all such communications are considered an integral part of Vistalytics., Inc. membership, and that you will not be able to opt out of receiving them. Updates and additions that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided “as is” and “where is” without any express or implied warranties and that Vistalytics., Inc. assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content, data or settings. Vistalytics., Inc. shall not be responsible for any fees (such as Internet Service Provider charges) you may incur to access the Service or for the provision or maintenance of any equipment needed to access the Service. Your access to the Service shall not be used for monitoring or reporting its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Vistalytics., Inc.’s prior written consent. Access to the Service by a direct competitor of Vistalytics., Inc., except with Vistalytics., Inc.’s prior written consent, is strictly prohibited.
2. Access to Your Account
By using and accessing the Service, you represent and warrant to Us that (i) you are not prohibited or restricted from receiving our services under the laws or regulations of the United States or any other applicable jurisdiction, (ii) your use of the Service does not violate any applicable law or regulation of the United States or of the jurisdiction in which you are situated, and (iii) you will not access the Service through the use of “bots” or any other automated method. You also agree that: (a) the information provided about yourself in the Service’s registration form (“Registration Data”) is true, accurate, current and complete; and (b) if any such data becomes untrue, inaccurate, out-of-date, or incomplete, you will promptly update or correct that data. Vistalytics., Inc. has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) if it discovers or reasonably suspects that any of the Registration Data you have provided is untrue, inaccurate, out-of-date, or incomplete. You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Vistalytics., Inc. of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. Vistalytics., Inc. cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this section.
3. Data Privacy
4. Terms For Vistalytics., Inc. Free Trial
The following terms (“Free Trial Terms”) shall apply to your use of or participation in any free trial provided by Vistalytics., Inc. Only first-time users of Vistalytics., Inc. are eligible for a free trial which shall be for a limited period of time (“Free Trial”). The Free Trial starts when you create a user account (“Free Trial Start Date”) and ends upon the later of (i) fourteen (14) days from the Free Trial Start Date, or (ii) any other date agreed upon by Vistalytics., Inc. in its sole discretion. All services and features available to Vistalytics., Inc. users may not be available during the Free Trial. You may convert your Free Trial account into a paid account subscription at any time during the Free Trial by clicking the “Subscription” button within the Vistalytics., Inc. console. Once you have converted your Free Trial to a paid account, your continued use of the Services is subject to your agreement and ongoing compliance with the TOS and the Free Trial Terms set forth in this section shall no longer apply.
The subscription fees corresponding to your subscription plan, plus any applicable tax, will begin to be billed to you at the end of your Free Trial, unless you cancel prior to the end of your Free Trial. The specific details of your subscription plan are available on the “Subscription” page after logging into the Service. A notice that your Free Trial has ended will be sent to you and will serve as notice that your paying subscription has begun. Your subscription will be automatically renewed at the end of your subscription period for another subscription period, with notice to you, unless and until you cancel the subscription, or the subscription is terminated. The expressly agree that the subscription fee plus any applicable tax will be billed to you according to the terms of your subscription plan and to the payment method we have on file for you. Your subscription must be cancelled seven (7) days before the end of a subscription period in order to avoid billing of the renewal period’s subscription fees. You also agree that we are permitted to bill you for any other charges you may incur in connection with your use of the Service, such as charges for service level changes you request. Charges for each billing period will automatically be billed to you on the calendar day corresponding to the first day of your membership. All fees and charges are nonrefundable, except where
and as may be required by law. There are no refunds or credits for partially used periods, or for the difference in cost where you have elected to downgrade service levels or otherwise remove or decide not to use any paid component or feature. For service upgrades or the addition of any paid component or feature, we will pro-rate the additional amount due based on the number of days remaining in the then current billing cycle. The proration shall be based on the pricing of the service level, paid components, or features in existence at the time of your election to upgrade or add paid components or features. If you downgrade your service level, you may cause the loss of Content or features for your account and Vistalytics., Inc. does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and such cancellation will be effective immediately. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS, FOR ANY FEATURE OR COMPONENT THAT YOU HAVE PAID FOR BUT NOT USED, OR FOR ANY FEATURE OR COMPONENT THAT YOU ARE NOT ABLE TO USE DUE TO A TECHNICAL OR PROGRAMMING ERROR FOR WHICH YOU REFUSE TO MAKE REASONABLE EFFORTS TO WORK WITH OUR TECHNICIANS TO RESOLVE, except where and as required by applicable law. You acknowledge that your purchase and/or use of the Service may subject you to taxes, including, but not limited to, sales and use taxes, by a governmental or other authority which has jurisdiction to impose such taxes upon you. The obligation for and payment of any such taxes shall be your sole and absolute responsibility and, unless limited by applicable law, to the extent that Vistalytics., Inc. becomes obligated or liable for such taxes, you agree to indemnify Vistalytics., Inc. pursuant to the “Indemnity” section below. The fees and charges in effect for each of our Services may be changed from time to time and new fees and charges may be added at our discretion. Furthermore, in conjunction with a renewal of your subscription, you agree that your recurring fees may be increased up to (i) the then list price as publicly marketed on our website, or (ii) five percent (5%), whichever may be greater. A grace period or early/beta pricing may be applied to your account, during which your fees will not increase for a specified period of time. If you find the increase or addition to the existing fees unacceptable, you may choose to terminate your account before the end of the then-current billing period. If you terminate your account, you shall not be liable for any fee increase after the applicable billing period; however, if you later choose to renew service, that renewal of service will be subject to the increased fee structure and shall not qualify for any promotional rates available to new cutomers and shall not be eligible for a Free Trial. If your credit or debit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing you, you remain responsible for any uncollected amounts, and you agree that we may suspend service if your credit or debit card cannot be authorized for billing purposes prior to the beginning of a new subscription period.
For the purposes of this Agreement, “Content” shall mean and refer to any and all data, code, video, images, text, documents or other materials of any type together with any and all information that is represented by such Content that is made available to or through our Service by you or any of your Individual Users, whether such Content is emailed, posted, submitted or otherwise publicly or privately transmitted. You and other users, and not Vistalytics., Inc., are entirely responsible for all Content made available via the Service. Vistalytics., Inc. therefore has no control over the Content posted via the Service and does not have supervision of or access to such Content except information related to accounts or as may be specifically authorized by this Agreement. Vistalytics., Inc. does not guarantee or endorse the Content of its users. By using the Service, it is possible that you may be presented with Content that is offensive, indecent, objectionable, or illegal in your jurisdiction. Vistalytics., Inc. shall not be liable in any way for any Content without limitation and is not responsible for any errors or omissions or any loss or damage of any kind incurred because of the use or transmission of any Content made available via the Service. Vistalytics., Inc. does not screen Content, however, you agree that Vistalytics., Inc. and/or anyone designated by Vistalytics., Inc. shall have the right to screen, refuse, move, or remove any Content made available via the Service. Vistalytics., Inc. and its designees, at their sole discretion, shall have the right to remove any Content that violates the TOS or is otherwise objectionable or illegal. The exercise of Vistalytics., Inc.’s right to remove Content shall not give rise to any liability or obligation to you. You assume all responsibility and risks associated with the use of, accuracy of, or completeness of any Content. You specifically acknowledge that you may not rely on any Content created by Vistalytics., Inc., submitted to Vistalytics., Inc., or made available through the use of Vistalytics., Inc. Your consent shall not be required for Vistalytics., Inc. to disclose your account information and Content if required to do so by any applicable law or in a good faith belief that such disclosure is reasonably necessary to: (a) comply with any applicable legal process or valid subpoena that requests disclosure of information or Content held in the name of a Business User, Individual Users, or both; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Vistalytics., Inc., its users and the public. Because of the technical processing and transmission requirements of the Service, the handling of your Content may involve changes to conform and adapt to technical requirements of connecting networks or devices, and Vistalytics., Inc. shall not be liable to you for such changes. You shall abide by and agree not to attempt to override or circumvent the usage rules established by and for the Service. Any unauthorized reproduction, publication, or distribution of the materials provided on the Service, in whole or in part and whether in public or in private, is strictly prohibited. You retain all right, title and interest in and to your Content and Vistalytics., Inc. shall not claim an ownership interest in such Content; provided, however, that for Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Vistalytics., Inc. a worldwide, royalty-free, and non-exclusive license that is perpetual, irrevocable, and fully sublicensable, for the unrestricted use of such Content, whether in whole or in part, and to incorporate such Content into other works in any format or medium.
7. Usage Restrictions
You agree to not use the Service to:
transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, under any applicable laws or as may be deemed so at the sole discretion of Vistalytics., Inc.;
impersonate or falsely state or otherwise misrepresent your affiliation with a person or entity;
misrepresent, hide, or disguise the origin of any Content transmitted through the Service;
transmit or otherwise make available any Content that you do not have a right to make available under any applicable law or that is subject to and in violation of a contractual or fiduciary relationship of which you or any other person may be a part;
8. Warnings regarding international use
You agree to familiarize yourself and comply with any and all applicable local, state, national or international laws and regulations that may apply to your use of the Service regarding online conduct and acceptable Content. Specifically, you represent that you are knowledgeable of and will comply with all applicable laws regarding the transmission of technical data exported from the United States, from the country or jurisdiction in which you reside, or from the country or jurisdiction whose laws and regulations apply to your specific use of the Service.
transmit or otherwise make available any Content that infringes on any patent, trademark, trade secret, copyright or other proprietary rights, for which you do not have a valid license or authorization from the holder of such rights;
engage in unsolicited advertising, marketing or other activities, as determined at the sole discretion of Vistalytics., Inc. and including, without limitation, any such activities that violate the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, the Telemarketing Sales Rule, 47 C.F.R. §64.1200 et seq., or other state or local laws relating to calling or texting;
transmit or otherwise make available any material that links to, makes available, or contains software viruses or any other codes, files, or programs designed to or that will
have the effect of degrading, interrupting, destroying, or limiting the functionality of any computer software or hardware or telecommunications equipment;
act in a manner that degrades, interrupts, limits, or negatively affects other users’ ability or desire to use the Service;
interfere with or disrupt the servers or networks that are connected to or involved in providing the Service, or ignore or disobey any requirements, procedures, policies, or regulations established for networks connected to the Service;
violate any applicable local, state, national or international law, regardless of whether such violation is harmful to the Service or its users and regardless of knowledge, intention, or malice;
provide any support or resources (or to assist in concealing any support provided by third parties) to any person(s) or organization(s) designated as a foreign or domestic terrorist or terrorist organization by the United States government, or any government under whose jurisdiction you may be; and/or frequently reassign or transfer your license to use the Service between individuals so as to effectively enable the sharing of a single Software license. Software Subscriptions are intended for the use of uniquely identified individuals and usage as described above would be a violation of the TOS.
You, as a Business User and/or Individual User(s), to the full extent permitted by law, agree to indemnify and hold harmless Vistalytics., Inc. and all of its parent companies, subsidiaries, affiliates, officers, directors, stockholders, agents, attorneys, employees, partners, licensors and other representatives from any claim or demand, together with attorneys’ fees and court costs, made by any third party due to or arising out of, or in connection with, (i) your use, connection to, or access of the Service, (ii) your Content, (iii) your violation of the TOS, applicable law, or the intellectual property or other rights of another person or entity, and (iv) any sales and use or other taxes arising in connection with your purchase or use of the Service.
10. No license for resale of Service
Your right to use and access the Service does not include a license for resale of the Service to others. You agree not to duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of, use of, or access to the Service unless you obtain specific written authorization for such use from Vistalytics., Inc.
11. Use and storage
Vistalytics., Inc. may establish and modify, from time to time, general rules, practices, and limits concerning use of the Service, including, by way of example and without limitation, the maximum length of time that Content will be retained by the Service, the maximum number or size of email messages that may be sent from or received by an account on the Service, the maximum amount of disk space or processing power that will be allotted on Vistalytics., Inc.’s servers for your account, and the maximum number and length of times you may access the Service in a given period. You agree that Vistalytics., Inc. has no responsibility or liability for the deletion of or failure to store any Content and other communications maintained or transmitted by the Service. Vistalytics., Inc. reserves the right to log off accounts that are inactive for an extended period of time, the duration of which shall be at Vistalytics., Inc.’s sole discretion.
12. Modifications to Service
Vistalytics., Inc. has the right, at any time and from time to time, to modify or discontinue, either temporarily, intermittently, or permanently, the Service or any portion of the Service with or without notice to you. This especially includes cases where unprofessional or inappropriate behavior/language is exhibited by yourself or members of your company. Our team strives to act professionally at all times, and we expect the same from our users. You agree that Vistalytics., Inc. shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Vistalytics., Inc. may, at its option, identify you as a customer to third parties or to the public and you agree that Vistalytics., Inc. may refer to you by name or by any applicable trade name and trademark and may briefly describe your business in marketing materials and on our website. You grant Vistalytics., Inc. an irrevocable, perpetual, world-wide license to use your name and any of your trade names and trademarks without compensation for purposes of the rights granted to Vistalytics., Inc. in this section. Vistalytics., Inc. may, with or without prior notice to you, terminate your Vistalytics., Inc. account and access to the Service as a Business User and/or Individual User(s). Such termination shall be within Vistalytics., Inc.’s sole and absolute discretion and may be done with or without cause. By way of example and not limitation, some of the situations
that might cause termination of your account and access to the Service include: (a) breaches or violations of the TOS or any other agreement you may have with Vistalytics., Inc.; (b) anticipated breaches or violations of the TOS including anticipated non-payment of subscription or other fees; (c) requests for information or action regarding your use of the Service by law enforcement or other government agencies; (d) a request by you to discontinue or deactivate your account; (e) discontinuance or material modification to any part of the Service; (f) technical or security issues or problems regardless of the cause; (g) extended periods of inactivity or failure to respond to your inquiries regarding usage of your account; (h) fraudulent or illegal activities arising from your account; and/or (i) nonpayment of any fees or charges owed by you in connection with the Service. Further, you agree that all terminations shall be made in Vistalytics., Inc.’s sole and absolute discretion and that Vistalytics., Inc. shall incur no liability to you or to any third party for termination of your account or termination or restriction of your access to the Service.
14. Links to outside resources
The Service may provide at its discretion, or third parties may provide on behalf of the Service, links to World Wide Web sites or resources that may or may not be affiliated with the Service. Vistalytics., Inc. has no control over such sites and resources or their content or services. You acknowledge and agree that Vistalytics., Inc. is not responsible for the availability of such external sites or resources, and that the provision of a link to such external site or resource does not constitute an endorsement or give rise to any responsibility or liability of the Service for your use or consumption of any content, advertising, products or other materials on or available from such sites or resources.
15. Vistalytics., Inc.’s proprietary rights
You acknowledge and agree that any and all software used in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws and all rights in and to such proprietary and confidential information are reserved to Vistalytics., Inc. Content contained in sponsor advertisements and/or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized in writing by Vistalytics., Inc. or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part, or to so use any associated copyrighted, trademarked, service marked, or patented material. Subject to the terms and conditions of this Agreement, Vistalytics., Inc. grants you a temporary limited personal, non-transferable, and non-exclusive right and license
to use its Software on your computing devices. You shall not (and shall not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software for any purpose other than as may be specifically granted in writing by the Service. You agree to access the Service only by and through the interface that is provided by Vistalytics., Inc. for use in accessing the Service.
16.Disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: 1. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW: (i) YOUR USE OF THE SERVICE OR ANY PART THEREOF IS AT YOUR SOLE RISK, (ii) THE SERVICE IS PROVIDED ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS, AND (iii) VISTALYTICS., INC. AND ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, ATTORNEYS, PARTNERS, LICENSORS, AGENTS AND OTHER REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 2. VISTALYTICS., INC. MAKES NO WARRANTY THAT: (i) THE PRODUCTS, SERVICE, INFORMATION, QUALITY, OR RESULTS OF YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (ii) THE SERVICE WILL BE CONTINUOUS, SECURE, ERROR-FREE, OR PROVIDED IN A TIMELY FASHION; (iii) ANY RESULTS THAT ARE OR MAY BE OBTAINED FROM YOUR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (iv) ERRORS OR DEFECTS IN THE SOFTWARE, IF ANY ARE FOUND, WILL BE CORRECTED OR REMEDIED IN A TIMELY MANNER OR AT ALL. 3. ACCESS TO MATERIAL AND INFORMATION THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM ACCESSING ANY SUCH MATERIAL AND/OR INFORMATION. ADDITIONAL DISCLAIMERS AND CAVEATS MAY APPEAR THROUGHOUT THE WEBSITE AND YOUR USE OF THE SERVICE IS ALSO SUBJECT TO THOSE ADDITIONAL DISCLAIMERS AND CAVEATS. 4. THERE SHALL BE NO WARRANTIES NOT EXPRESSLY STATED HEREIN. VISTALYTICS., INC. ASSUMES NO RESPONSIBILITY FOR ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL MADE AVAILABLE THROUGH THE SERVICE. VISTALYTICS., INC. STRIVES TO KEEP SUCH INFORMATION ACCURATE, COMPLETE, AND UP-TO-DATE. HOWEVER, VISTALYTICS., INC. CANNOT AND DOES NOT GUARANTEE
THE SAME, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF SUCH INFORMATION.
17. Limitation of liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, VISTALYTICS., INC. AND ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY SORT RESULTING FROM: (i) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE; (ii) THE COST OF SUBSTITUTE GOODS AND SERVICES ARISING FROM YOUR INABILITY TO USE THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. VISTALYTICS., INC.’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO VISTALYTICS., INC. FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) $100.00 USD.
18. Exclusions and limitations
VISTALYTICS., INC. MAKES NO REPRESENTATIONS AS TO THE APPLICABILITY OR ENFORCIBILITY OF THE TERMS OF THIS AGREEMENT IN YOUR JURISDICTION. SOME JURISDICTIONS, FOR EXAMPLE, MAY NOT ALLOW FOR (I) INDEMNIFICATION, AND (II) THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE PROVISIONS CONTAINED HEREIN MAY NOT APPLY TO YOU. IF YOU ARE UNSURE WHETHER SUCH EXCLUSIONS AND LIMITATIONS APPLY TO YOU, VISTALYTICS., INC. ENCOURAGES YOU TO SEEK LEGAL COUNSEL IN YOUR JURISDICTION.
19. Trademark information
The Vistalytics., Inc. and Vistalytics., Inc. logos, trademarks, and service marks and other Vistalytics., Inc. product and service names are trademarks of Vistalytics., Inc..
20. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim against the Vistalytics., Inc. Parties, you will first give us an opportunity to resolve your problem or dispute by sending a written description of your problem or dispute to us. Your written description shall include, but not be limited to, information or representations related to the particular product or service giving rise to the problem or dispute and your description or interpretation of the issue. The written description shall be sent by U.S. Mail to Vistalytics., Inc., LLC, 201 Main St, Fort Worth, TX 76102; Attn: General Counsel. Before proceeding in any other manner, you agree to negotiate with Vistalytics., Inc. in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Vistalytics., Inc.’s receipt of your written dispute, you agree to the dispute resolution provisions below. MANDATORY ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall be commenced no later than one (1) year after the event giving rise to the claim or dispute. Any proceeding commenced after one (1) year shall be barred. Claims shall be heard by a single arbitrator. The place of arbitration shall be Santa Clara, California. The arbitration shall be governed by the laws of the State of California. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the
making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above. . You further agree that the arbitrator may not consolidate proceedings or claims or otherwise preside over any form of a representative or class proceeding. Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Vistalytics., Inc. both retain the right to pursue an action in a small claims court that is within that court’s jurisdiction and proceed on an individual (non-class) basis. Vistalytics., Inc. will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. You agree that the proper venue for all small claims actions shall be in a Justice of the Court in Santa Clara, CA. Enforceability. This provision survives termination of your account or relationship with Vistalytics., Inc., bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect. Amendments. Vistalytics., Inc. reserves the right to amend this arbitration provision at any time. Your continued use of any Vistalytics., Inc. website, purchase of a Vistalytics., Inc. product or service, or use or attempted use of a Vistalytics., Inc. product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Vistalytics., Inc. will provide you notice and an opportunity to opt-out. Your continued use of any Vistalytics., Inc. website, purchase of a Vistalytics., Inc. product or service, or use or attempted use of a Vistalytics., Inc. product or service, is affirmation of your consent to such material changes. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF A VISTALYTICS., INC. PRODUCT OR SERVICE (WHICHEVER COMES FIRST) BY WRITING TO VISTALYTICS., INC. 4699 OLD IRONSIDES DRIVE., SUITE 278, SANTA CLARA, CA 95054; ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY VISTALYTICS., INC. PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF VISTALYTICS., INC. PRODUCT OR SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID, AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
21. Choice of Law and Forum
Except to the extent required by applicable law or as otherwise set forth herein (including the arbitration provisions set forth above), (i) the TOS and the relationship between you and Vistalytics., Inc. shall be governed by the laws of the State of
California without regard to its conflict of law provisions, and (ii) You and Vistalytics., Inc. agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Tarrant, State of California regardless of (A) your world-wide physical location, or (B) the jurisdiction where you purchased or use the Service.
22. General information
Waiver and Severability of Terms. The failure of Vistalytics., Inc. to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid under applicable law, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions to the greatest extent possible as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect. No Right of Survivorship and Non-Transferability. You agree that your Vistalytics., Inc. account is non-transferable and any rights to your Vistalytics., Inc. ID or contents within your account terminate upon cessation of your legal existence or death, as applicable. Upon receipt of a copy of a certificate of dissolution or death certificate, as applicable, your account may be terminated, and all contents therein permanently deleted. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.