Effective Date: January 5, 2018
THESE TERMS OF SERVICE (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND BOYDSENSE, INC. (“BOYDSENSE”, “WE”, “US” OR “OUR”). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL WWW.BOYDSENSE.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO SUCH SITES BY BOYDSENSE, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”) AND ANY SERVICES PROVIDED ON THE SITE (THE “SERVICES”). BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH BOYDSENSE. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
BOYDSense may make changes to the content and Services offered on the Site at any time. BOYDSense can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site. By using this Site after BOYDSense has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless BOYDSense if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the BOYDSense or the Site.
BOYDSense provides content through the Site and through the Services that is copyrighted and/or trademarked work of BOYDSense or BOYDSense’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, BOYDSense hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
The Site Does Not Provide Professional Medical Services Or Advice.
THE SITE AND ALL THE MATERIALS PROVIDED THROUGH IT ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDIAL ADVICE OR TREATMENT. YOU ACKNOWLEDGE THAT THE SITE AND SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, PROFESSIONAL OR MEDICAL ADVICE OR OPINION OF ANY KIND AND THAT THEY ARE NOT A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE OR OPINION. THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SITE AND SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. YOUR USE OF THE SITE AND SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND US. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH OR A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON OUR SITE. OUR SITE AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE IS WITH YOU.
If you think you may have a medical emergency, call your doctor or 911 immediately. We do not recommend or endorse any specific tests, physicians, health care providers, products, services, procedures, opinions, or other information that may be mentioned on the Site. Reliance on the Materials or any information provided by us, our employees, others appearing on the Site at our invitation, or other third parties on the Site is solely at your own risk.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from BOYDSense. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with BOYDSense. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Links to Third-Party Sites.
When using this Site and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything clearly false or misleading.
- Post anything unrelated to our business, products or services.
- Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.
This list of prohibitions provides examples and is not complete or exclusive. BOYDSense reserves the right to terminate your ability to use the Services with or without cause and with or without notice, for any reason or no reason, or for any action that BOYDSense determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. BOYDSense may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at BOYDSense’s discretion, BOYDSense will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
You agree to indemnify and hold BOYDSense and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) BOYDSense or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
BOYDSense is a trademark of BOYDSense in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of BOYDSense, Copyright © 2018 BOYDSense, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
Disclaimer of Warranties.
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by BOYDSense, and they may include inaccuracies or typographical or other errors. BOYDSense does not warrant the accuracy of timeliness of the Materials contained on this Site. BOYDSense has no liability for any errors or omissions in the Materials, whether provided by BOYDSense, our licensors or suppliers or other users.
BOYDSENSE, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BOYDSENSE DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability.
BOYDSENSE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BOYDSENSE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF BOYDSENSE KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED THESE TERMS SHALL NOT BE MORE THAN $100.00.
Local Laws; Export Control.
BOYDSense controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to BOYDSense, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and BOYDSense is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that BOYDSense is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Some of the information on our Site may contain projections or other forward-looking statements regarding future events or the future financial performance of BOYDSense. Words such as “expects,” “goals,” “plans,” “believes,” “continues,” “may,” and variations of such words and similar expressions identify forward-looking statements. In addition, any statements that refer to or may imply future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances are forward-looking statements. All such statements that are not historical facts are based on our current expectations and are subject to a number of risks, uncertainties and change in circumstances that are often difficult to predict and many of which are beyond our control. As a result, the actual events or results may differ materially from those indicated in forward-looking statements. Our forecasts speak only as of the date they are given and do not necessarily reflect BOYDSense’s outlook at any other point in time. BOYDSense does not undertake to update or revise these forward-looking statements. All subsequent forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by this paragraph.
Dispute Resolution and Arbitration; Class Action Waiver.
Please read the following (this “Provision”) carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and BOYDSense. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and BOYDSense shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “BOYDSense” means BOYDSense and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and BOYDSense regarding, arising out of or relating to any aspect of your relationship with BOYDSense, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as BOYDSense’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give BOYDSense an opportunity to resolve the Dispute. You must commence this process by mailing written notification to BOYDSense, 1001 Bayhill Drive, 2nd Floor San Bruno, CA 94066. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If BOYDSense does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or BOYDSense may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to BOYDSense, 1001 Bayhill Drive, 2nd Floor San Bruno, CA 94066 or by email at email@example.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with BOYDSense through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with BOYDSense. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or BOYDSense may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or BOYDSense may initiate arbitration in either San Francisco, CA or the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – BOYDSense will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with BOYDSense as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and BOYDSense specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and BOYDSense are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and BOYDSense might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with BOYDSense or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if BOYDSense makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require BOYDSense to adhere to the present language in this Provision if a dispute between us arises.
The Parties hereto have expressly required that this agreement and all documents and notices relating thereto be drafted in the English language.
BOYDSense prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by BOYDSense, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in San Mateo County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. BOYDSense’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and BOYDSense and supersede all prior or contemporaneous negotiations, discussions or agreements between you and BOYDSense about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact BOYDSense for any reason, you can reach us by email at firstname.lastname@example.org or by mail at 1001 Bayhill Drive, 2nd Floor San Bruno, CA 94066.