THESYS INC.
TERMS OF SERVICE
Last Updated: July 29, 2024
WE WILL POST ANY CHANGES TO THESE TERMS OF SERVICE IN A NOTICE OF THE CHANGE AT THE BOTTOM OF OUR WEB PAGE WITH A HYPERLINK THERETO. WE WILL ALSO SEND YOU AN EMAIL DESCRIBING SUCH CHANGES IN CASE OF SIGNIFICANT UPDATES OR MODIFICATIONS. PLEASE REGULARLY REVIEW THESE TERMS OF SERVICE. NOTWITHSTANDING IF YOU CONTINUE TO USE OUR SERVICES, YOU ARE BOUND BY ANY CHANGES THAT WE MAKE TO THESE TERMS OF SERVICE.
These Terms of Service (“Agreement” or “Terms of Service”) are a legally binding agreement between you (the “User,” “you,” or “your”) and Thesys Inc. and its affiliates including its parent companies and/or subsidiaries (“Thesys”, “Company,” “we,” “us,” “our”). You acknowledge and agree that your use of the Thesys platform or any services (the “Platform”) through Company’s website at https://www.thesys.dev/ (the “Website”) and/or Company’s mobile or web application (the “App”) such as the web App at https://app.thesys.dev will be governed by this Agreement, our Terms of Use, Privacy Policy, and any related terms.
If you are unsure as to the terms of this Agreement, please do not proceed further and contact us at info@thesys.dev.
Your use of our Website, App, or Platform shall constitute your acceptance of this Agreement and to all of the terms and conditions stated under this Agreement and our Terms of Use and Privacy Policy referenced herein.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY USING AND NAVIGATING THROUGH OUR PLATFORM THROUGH OUR WEBSITE AND/OR APP, YOU AGREE THAT (A) YOU HAVE READ AND UNDERSTOOD THE AGREEMENT; (B) YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD; (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AS WELL AS OUR TERMS OF USE AND PRIVACY POLICY REFERENCED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR WEBSITE, APP, OR PLATFORM.
Capitalized terms not defined herein shall have the same meaning ascribed to them under our Terms of Use or Privacy Policy.
Thesys is in the business of providing a software-as-a-service design suite, that aims to power dynamic hyper-contextual experiences, provides surface insights into user behavior and usage patterns, and co-pilots faster iterations and enhance code generation.
Information about the Company and addresses of its headquarters and branches, can be accessed at the About Us and Contact Us sections on the Website and App.
Our Website, App, and Platform are only available for use and download outside the European Union. Our Website, App, and Platform are not available for use or download by residents of, visitors to, or your employees who reside in the European Union (collectively a “European”). If you are a European, please do not download, register, and/or use our Website, App, or Platform. If you are a resident in the United States of America (“US”) or India, you must comply with these Terms of Service and our Terms of Use and Privacy Policy. If you are a resident of any other country, please ensure compliance with all local laws prior to using our Website, App, or Platform.
If you have any questions regarding this Section, please email us at info@thesys.dev.
Our Privacy Policy describes how we handle the personal and business information you provide to us when you register for our Website, App, or Platform. You understand that through your use of our Website, App, or Platform, you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the US, India and/or other countries for storage, processing and use by Company and our affiliates.
To be eligible to use our Website, App, or Platform, you must meet the following criteria and represent and warrant that you: (a) are 18 years of age or older; (b) are not currently restricted from accessing our Website, App, or Platform, or not otherwise prohibited from having an account, (c) are not our competitor, or are not using our Website, App, or Platform for reasons that are in competition with us; (d) will only maintain one registered account at any given time; (e) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (f) will not violate any of our rights, including intellectual property rights such as patent, copyright, and trademark rights; and (g) agree to provide at your cost all equipment, browser software, and internet access necessary to use our Website, App, or Platform.
Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-transferable, non-licensable, non-sublicensable license to access and use our Website, App, or Platform to: (a) download, install, and use our App for your use in accordance with this Agreement on any mobile, portable or other device owned or otherwise controlled by you strictly in accordance with this Agreement, and (b) access, stream, download, and use on your mobile device our Website, App, or Platform and content made available in or otherwise accessible through our Website, App, or Platform, strictly in accordance with this Agreement.
You will not use, copy, adapt, modify, prepare derivative works based upon our Website, App, or Platform, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit our Website, App, or Platform, except as expressly permitted in this Agreement. When using and accessing our Website, App, or Platform, you need to make sure that your internet connection is adequate. You are solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs, and other fees that might apply.
YOU AGREE THAT WE ARE NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR ACCESS OR USE OF OUR WEBSITE, APP, OR PLATFORM. WE PROVIDE NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO COMPANY FOR THE ABILITY TO ACCESS OR USE OUR WEBSITE, APP, OR PLATFORM IN THE THREE (3) MONTHS PRECEDING THE CLAIM.
You agree that our Platform, including but not limited to the Website, App, graphics, trademarks, and editorial content, contains proprietary content, information, and material, which are owned by Company and/or our licensors, including our customers, brands and agencies, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of our Platform or in any manner that is inconsistent with the terms contained in this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on our Website, App, or Platform, in any manner, and you will not exploit our Website, App, or Platform in any unauthorized way whatsoever, including but not limited to, using our Website, App, or Platform to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use our Website, App, or Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using our Website, App, or Platform.
Company owns and retains all rights, title and interest in and to the Platform, App and Website and any related services (“Services”) and all intellectual property rights therein. You do not have any right, license or authorization with respect to the Platform, App, Website, and/or any Services, except as expressly set forth in this Agreement.
You can access and use our Website at https://www.thesys.dev/ and our App at https://app.thesys.dev. When downloading and using our App and Platform, you are required to provide us with registration information including personal information. You agree that we have the right to disable your access and use rights, at any time if, in our opinion, you have violated any provision of this Agreement and/or our Privacy Policy. You agree to cooperate with us if the security of our Website, App, or Platform is compromised by you or another person through the use of our Website, App or Platform. We will not be liable for any loss or damage arising from your failure to comply with this Section.
We collect personal and business information (as set forth in our Privacy Policy), which we need, from you when you register to use our Website, App, or Platform. This information is necessary for us to provide our Website, App, or Platform to you and is stored on our servers to enable us to continue to provide our Website, App, or Platform to you. Upon your written request, we will provide you with a list of all of the Personal Information that we store on you within sixty (60) days of receiving your request. Also, upon your prior written request, we will delete any such information within sixty (60) days of receiving your request. Notwithstanding, please note that, if you ask us to delete all such information, we will not be able to continue to provide our Website, App, or Platform to you. Please send your requests to us at privacy@thesys.dev.
When you create an account or register on our Website, App, and/or Platform, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account by us.
You are required to create an account to use any services provided through the Platform. You can create an account through our Website and/or App, for which you will be required to provide us with your name, email address, and such other information as Company may require, which information will be collected, stored and processed in accordance with our Privacy Policy. You may be required to log in through a third-party sign-on or authenticator, in which case such third party’s policies and terms will be additionally applicable to you as detailed in Section 14 of this Agreement.
You are responsible for maintaining the confidentiality of your account and its login details including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or used to log in to your account. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You may not use as a username the name of another person or entity or that is not lawfully available for use, or a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel Subscriptions in our sole discretion including for any breach of this Section.
You may request a complete deletion of your account at any time by contacting us at info@thesys.dev or privacy@thesys.dev. Account deletion requests will be serviced within 60 days of the request receipt by us.
As a condition to access our Website, App, or Platform, you agree to this Agreement and to strictly observe the following:
You understand and agree that you may receive information and push notifications from Company via email, our App, text message on your mobile device, or calls to your mobile number. You hereby consent to receive communications via email, our App, text message on your mobile device, or calls to your mobile number. You acknowledge that you may incur additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not Company.
If you use integrated services from our partners and/or service providers in the use of the Website, App, and/or Platform, the use and operation of such services will be additionally governed by the relevant service terms and contracts of the respective partners and service providers. The Platform may also have links to third-party websites, products and/ or services. Log-in may require third-party sign-on or authentication. Payments will be processed by third party payment service providers. Access or usage of all such third-party links will be governed by the respective third-party terms and conditions at all times. This Agreement will not cover such any of these third-party terms or arrangements, and you acknowledge that Company has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. YOU ACKNOWLEDGE AND AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD-PARTY WEB SITES OR SERVICES. WE STRONGLY ADVISE YOU TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY SUCH THIRD-PARTY WEBSITES OR SERVICES. If you have any questions or concerns about this Section, please email us at privacy@thesys.dev.
You agree to indemnify, defend, and hold Company and our officers, employees, managers, directors, customers, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Company and our Indemnitees arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
Your access to and use of our Website, App, and Platform or any content are at your own risk. You understand and agree that our Website, App, and Platform are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. We make no warranty or representation and disclaim all responsibility and liability for:
(i) the completeness, accuracy, availability, timeliness, security or reliability of our Website, App, or Platform or any content;
(ii) any suspension, interruption, technical flaw, presence of virus or other malicious, destructive or corrupted code or programs on the Website, App or Platform;
any harm to your computer system, loss of data, or other harm that results from your access to or use of our Website, App, or Platform or any content;
(iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by our Website, App, or Platform; and
(iv) whether our Website, App, or Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
No advice or information, whether oral or written, obtained from us or through our Website, App, or Platform, will create any warranty or representation not expressly made herein.
THESYS DOES NOT REVIEW, VERIFY, REVISE, ENDORSE, OR OTHERWISE APPROVE ANY CONTENT CREATED OR POSTED BY OUR USERS, AND COMMUNICATED TO OTHER USERS OR THIRD PARTIES VIA OUR WEBSITE, APP, OR PLATFORM, BUT THESYS WILL REMOVE CONTENT THAT VIOLATES ANY LAWS OR THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL THESYS BE LIABLE IN ANY WAY FOR ANY CONTENT CREATED OR POSTED BY OUR USERS FOR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF SUCH CONTENT. THE CONTENT IS SOLELY CREATED BY OUR USERS, AND THESYS SPECIFICALLY DISCLAIMS ANY AND ALL ROLE WHATSOEVER WITH RESPECT TO THE CREATION OR POSTING OF SUCH CONTENT.
This Section is applicable to you only if the Indian Consumer Protection E-Commerce Rules, 2020 (“CP Laws” are applicable to you.
You acknowledge and agree that, in no event will Thesys be liable to you or any third party for any indirect, punitive, exemplary, incidental, special, or consequential damages whether in contract, tort (including negligence), or otherwise arising out of this Agreement, or the use of, or the inability to use, our Website, App, or Platform, including, without limitation, any information made available through our Website, App, or Platform pursuant to this Agreement. In the event the foregoing limitation of liability is determined by a court of competent jurisdiction to be unenforceable, then the maximum liability for all claims of every kind will not exceed $100. The foregoing limitation of liability will cover, without limitation, any technical malfunction, computer error or loss of data, and any other injury arising from the use of our Website, App, or Platform. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. To the extent that Company may not disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Company’s liability will be the minimum permitted under applicable law.
You may terminate this binding legal Agreement with the Company at any time by cancelling your account through the Website or App or by writing to us at info@thesys.dev. If you choose to cancel your account or a Subscription during an ongoing Billing Cycle, you will not be entitled to any refund for the remainder of such Billing Cycle , and may. be charged cancellation charges to the extent permissible under applicable laws.
We reserve the right to suspend or terminate your Account or cease providing you with access to all or part of our Website, App, or Platform at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated this Agreement or our Terms of Use or Privacy Policy, (ii) you create risk or possible legal exposure for Company; or (iii) our provision of our Website, App, or Platform to you is no longer commercially viable. We will make reasonable efforts to notify you of such termination by the email address associated with your account or the next time you attempt to access your account, depending on the circumstances. In all such cases, this Agreement shall terminate, including, without limitation, your license to use our Website, App, or Platform.
All sections, which by their nature and context are intended to survive the termination of this Agreement, will survive.
If you believe that any content on our Website, App, or Platform violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”) must be provided to our designated Copyright Manager.
Company’s DMCA Copyright Manager to receive DMCA Takedown Notices is Parikshit Deshmukh, with email address dmca@thesys.dev and address at Thesys Inc., Attn: DMCA Notice, 355 Bryant Street, Suite 403 San Francisco California 94107. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Thesys in connection with the written notification and allegation of copyright infringement.
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offer our Website, App, or Platform in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) our Website, App, or Platform to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by the applicable regulations.
We reserve the right to withdraw or amend these Terms of Service at any time in our sole discretion. We will post any changes to these Terms of Service in a notice of the change at the bottom of our web page with a hyperlink thereto. We will also send you an email describing such changes if there are any significant updates or modifications. Please regularly review these Terms of Service. If you do not agree to any modified terms, please do not use the Platform or our services. Notwithstanding if you continue to use our services, you are bound by any changes that we make to these Terms of Service.
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. The User has no power or authority to bind Company to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Company.
You agree that any violation of these Terms of Service will constitute an unlawful and unfair business practice, and will cause irreparable harm to us, for which monetary damages would be inadequate, and you consent to us obtaining any injunctive or equitable relief that we deem necessary or appropriate. You agree that these remedies are in addition to any other remedies that we may have at law or in equity.
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 26.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Company agree (a) to waive your and Company’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Website, App, or Platform, resolved in a court, and (b) to waive your and Company’s respective rights to a jury trial. Instead, you and Company agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
You and Company agree that any Dispute arising out of or related to these Terms of Service or use or access of our Website, App, or Platform is personal to you and Company and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Company agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Company agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
You and Company agree that these Terms of Service affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
You and Company agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Company shall be sent by certified mail or courier to Thesys Inc., Attn: Rabi Shanker Guha, 355 Bryant Street, Suite 403, San Francisco California 94107. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Company account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Company may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND COMPANY AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR COMPANY WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND COMPANY WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Company agree that (a) any arbitration will occur in San Francisco County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
As limited by the FAA, these Terms of Service and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. You agree that the party that prevails in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: THESYS INC., RE: OPT-OUT, 355 BRYANT STREET, SUITE 403, SAN FRANCISCO, CALIFORNIA 94107. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 25.
This Agreement along with our Terms of Use and Privacy Policy constitutes the entire agreement between you and Company and supersedes any prior agreements between you and Company with respect to the subject matter herein. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, we both nevertheless agree that the court should endeavor to give effect to our intentions as reflected in this provision, and the other provisions of this Agreement to remain in full force and effect. 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 our Website, App, or Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. All the sections intended to survive the termination of this Agreement shall survive. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as explicitly stated otherwise, any notices to Company shall be given by certified mail, postage prepaid and return receipt requested to Thesys Inc. at 355 Bryant Street, Suite 403, San Francisco California 94107. Any notices to you shall be provided to you through our Website, App, or Platform or given to you via the email address or physical address you provide to Company during the registration process.