1. Acceptance of terms
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. PLEASE NOTE THAT THESE TERMS INCLUDE A CLASS ACTION WAIVER, A DISCLAIMER OF WARRANTIES, A DISCLAIMER OF LIABILITY, AS WELL AS A AN INDEMNIFICATION BY YOU. THESE TERMS ALSO DESCRIBE THE METHOD IN WHICH YOU MAY OPT-OUT OF THE ARBITRATION AGREEMENT.
“Administrator” shall mean a Subscriber (as further defined below) with authority to designate additional Authorized Users and/or Administrators.
“Authorized User” shall mean an individual Subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
“Subscriber” shall refer to the purchaser of the Services provided by OneSmartLab and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
Changes to the Terms
OneSmartLab may, at its sole discretion, change these Terms from time to time. If changes to the Terms occur, we will notify Subscriber by posting the updated terms on the site or by email. It is Subscriber’s responsibility to check the Terms periodically for changes. Updated versions of the Terms will never apply retroactively and the updated Terms will give the exact date they go into effect. Significant changes will go into effect no less than 30 days after we notify you. Subscriber’s continued use of the Services following the effective date of any changes to the Terms means Subscriber accepts those new terms.
1. The Services
The OneSmartLab Services
OneSmartLab is a facial recognition technology service used for any purposes. The Services are made available for Subscriber’s internal business use.
OneSmartLab utilizes a proprietary technology that allows Subscribers to use the OneSmartLab API to setup facial recognition profiles for security purposes. When utilizing the OneSmartLab API, you may charge for services or applications that you create. You may not, however, sell, rent, lease, sublicense, redistribute, or syndicate access to the OneSmartLab API.
Access and Eligibility to Use the Services
Subscriber is only permitted to access and use the Service if Subscriber is an Authorized User. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
The initial Administrator shall be the originating Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service. If an Administrator discovers any unauthorized use of an Authorized User’s account, or other known account-related security breach, Administrator must report it to support@OneSmartLab.com immediately.
OneSmartLab cannot and will not be liable for any loss or damage arising from Subscriber’s failure to comply with this section.
Authorized Users must be at least 18 years of age to register for an account.
Changes to the Services
OneSmartLab reserves the right to change, limit, suspend, or discontinue the Services (including, but not limited to, the availability of any feature, database, or Content) at any time for any reason. Subscriber agrees that OneSmartLab shall not be liable to Subscriber or to any third party for any modification, suspension, or discontinuation of the Services. You acknowledge that updates and modifications may adversely impact how you access, use, and communicate with the OneSmartLab API. If any change in unacceptable to you, then your only recourse is to cease all use of the OneSmartLab API. Your continued access or use of the OneSmartLab API will mean that you agree to the updates and modifications.
3. Subscriber Requirements
Security Protections and Reporting Breaches
The network, operating system and software of your web servers, databases, and computer systems must be properly configured to securely operate your services and store data. Your services must use reasonable security measures to protect your users’ information.
You must promptly report any security deficiencies in, or intrusions to, your computer systems to OneSmartLab in writing via email to support@OneSmartLab.com. This includes any unauthorized access, use, disclosure or destruction of user data. You will work with OneSmartLab to immediately correct any security deficiency, and will immediately disconnect any intrusions or intruder. In the event of any security deficiency or intrusion involving the OneSmartLab API, you will make no public statements regarding such deficiencies or intrusions without prior written and express permission from OneSmartLab in each instance.
4. License Grant
Subject to the terms and conditions of this Agreement, OneSmartLab hereby grants Subscriber a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Services (including the Site or the OneSmartLab API) solely for the purpose of utilizing facial recognition technology. All rights not expressly granted to Subscriber are reserved by OneSmartLab, its affiliates and their respective licensors. All modifications or enhancements to the Services remain the sole property of OneSmartLab. OneSmartLab reserves the right to add additional features or functions to the Services.
As a condition of use, Subscriber’s promises not to use the Services for any purpose that is prohibited by the Terms or law. Subscriber is responsible for all of Subscriber activity in connection with the Service.
Subscriber shall not, and shall not allow any other party to:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Services in any way;
(b) modify or make derivative works based upon the Services;
(c) improperly use the Services, including creating Internet “links” to any part of the Services, “framing” or “mirroring” any part of the Services on any other websites or systems, or “scraping” or otherwise improperly obtaining data from Services;
(d) reverse engineer, decompile, modify, or disassemble the Services, except as allowed under applicable law;
(e) send spam or otherwise duplicative or unsolicited messages;
(f) design or develop a competitive or substantially similar product or service;
(g) copy or extract any features, functionality, or content thereof;
(h) launch or cause to be launched on or in connection with the Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Services; or
(i) attempt to gain unauthorized access to the Services or its related systems or networks.
OneSmartLab reserves the right to deactivate or otherwise restrict Subscriber from accessing or using the Services in the event of a violation or alleged violation of the Terms, Subscriber’s disparagement of OneSmartLab or any of its affiliates, or Subscriber’s acts that cause harm to OneSmartLab or its affiliates’ brand, reputation or business as determined by OneSmartLab in its sole reasonable discretion. OneSmartLab reserves the right to investigate and take appropriate legal action, including without limitation, cooperating with and assisting law enforcement or government agencies in any resulting investigations of illegal conduct.
OneSmartLab also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to:
(a) satisfy any applicable law, regulation, legal process or governmental request;
(b) enforce the Terms, including investigation of potential violations hereof;
(c) detect, prevent, or otherwise address fraud, security or technical issues;
(d) respond to user support requests; or
(e) protect the rights, property or safety of OneSmartLab, its users and the public.
5. Payments and Fees
OneSmartLab charges for subscriptions to utilize the facial recognition technology. When Subscriber uses a service that has a fee, Subscriber will have an opportunity to review and accept the fees that Subscriber will be charged. Subscriber is responsible for paying all fees and taxes associated with `Subscriber’s use of the Services. If payment is not made, the amount owed shall incur interest at the rate of 3.5% per month (or the highest rate permitted by law, if less) until all amounts owed, including the interest, have been paid in full. Subscriber agrees to pay OneSmartLab all collection costs and expenses incurred by Subscriber to enforce these Terms, including but not limited to attorneys’ fees, collection agency fees, costs and expenses.
6. Termination of Usage
Subscriber has the ability to terminate Subscriber’s account at any time for any reason, or for no reason at all. Notwithstanding the foregoing, Subscriber may still be charged fees for outstanding payment obligations. Correspondingly, OneSmartLab can terminate or delete Subscriber’s account or otherwise suspend Subscriber’s access to the Services at any time and for any reason with reasonable and appropriate notice to Administrator.
Following termination of Subscriber’s account, however, Subscriber’s license to use OneSmartLab Content automatically terminates, and OneSmartLab has no obligation to provide Subscriber with use of the Services. Subscriber agrees that even upon termination of Subscriber’s account any fees paid to OneSmartLab for services previously provided are non-refundable. All provisions of the Terms that are continuing shall survive termination of the Terms, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
7. Third Party Services
The Services may permit Subscriber to link to other websites or resources on the internet. Links on the Services to third party websites, if any, are provided only as a convenience to Subscriber. If Subscriber uses these links, Subscriber will leave the Services. The inclusion on another website of any link to the Services does not imply control of, endorsement by, or affiliation with OneSmartLab. Subscriber’s dealings with third parties through links to such third-party websites are solely between Subscriber and such third parties. Subscriber agrees that OneSmartLab will not be responsible or liable for any content, goods or services provided on or through these outside websites or for Subscriber’s use or inability to use such websites. OneSmartLab expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third-party website or application.
8. Intellectual Property
Through the Site, email, websites, and other media, the Services make accessible various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, campaigns, other material and information, and associated trademarks and copyrightable works (collectively, “Content”). Subscribers of the Service may have the ability to contribute, add, create, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible (“Submit”) Content.
OneSmartLab content is protected in many ways, including copyrights, trademarks, service marks, trade secrets, and other rights and laws. Subscriber agrees to respect all legal notices, information, and restrictions contained in any content accessed through the Services. Subscriber also agrees not to change, translate, or otherwise create derivative works based off our content.
Subscriber has a limited, revocable, non-exclusive, non-transferable license to use the website and OneSmartLab content solely for legally permitted activities related to the Services as outlined in these Terms.
OneSmartLab, including third party partners and affiliates, may ask Subscriber for Feedback (as further defined below) on Subscriber’s experience with the Services. OneSmartLab shall become the owner of any reviews, comments, suggestions or other feedback regarding the Services posted to the Services or on OneSmartLab’s social media pages (collectively, “Feedback”) and it may share with any of its affiliates. OneSmartLab will not be required to treat any Feedback as confidential and will not be liable for any Feedback posted on the Services or elsewhere by Subscriber. Without limitation, OneSmartLab will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, including to advertise and promote OneSmartLab, without compensation to Subscriber or any other person sending the Feedback. Subscriber specifically waives any “moral rights” in and to the Subscriber Content.
To the extent that Subscriber decides to post any content (“Subscriber Content”), including Subscriber’s business profile information or Feedback, on the Services or on OneSmartLab’s social media pages, Subscriber agrees that Subscriber Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless Subscriber has permission from the rightful owner of the material or Subscriber is otherwise legally entitled to post the material and to grant OneSmartLab all of the license rights granted herein. Subscriber acknowledges that Subscriber is responsible for whatever material Subscriber submits, and Subscriber, not OneSmartLab, has full responsibility for the Feedback, including its legality, reliability, appropriateness, originality, and copyright. OneSmartLab may refuse to accept or transmit Subscriber Content. Additionally, OneSmartLab shall have the right to delete, edit, modify, reformat, excerpt, or translate any Subscriber Content.
9. Copyright Notices
OneSmartLab complies with the Digital Millennium Copyright Act (DMCA). OneSmartLab will remove infringing materials in accordance with the DMCA if properly notified that Content infringes copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify OneSmartLab’s Copyright Agent by email at support@OneSmartLab.com or by mail to the address in the Contact section. Please do not send notices or inquiries about anything other than alleged copyright infringement or other intellectual property claims to our Agent for Notice. Your email must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address;
(c) a description of the copyrighted work that you claim has been infringed;
(d) a description of where the material that you claim is infringing is located on the Services, sufficient for OneSmartLab to locate the material; your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you fail to comply with these notice requirements, your notification may not be valid. Under the Copyright Act, any person who knowingly materially misrepresents that material is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
In accordance with the Digital Millennium Copyright Act, OneSmartLab has adopted a policy of, in appropriate circumstances, terminating User accounts that are repeat infringers of the intellectual property rights of others. OneSmartLab also may terminate User accounts even based on a single infringement.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a written counter-notice containing the following information to the Copyright Agent: (1) Your physical or electronic signature; (2) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (3) A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (4) Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Dallas, Texas, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, the Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Company’s sole discretion.
10. Warranty and Disclaimer
OneSmartLab will use commercially reasonable efforts to provide at least 48 hours’ prior notice before undertaking any scheduled downtime in which it intends to perform any planned upgrades and/or maintenance on the Service or related systems.
Development and Reliance on OneSmartLab API
OneSmartLab is an evolving, and OneSmartLab will occasionally make changes to the OneSmartLab API, including backwards incompatible ones. Also, parts of the OneSmartLab API are undocumented, including certain methods, events, and properties. Given that these undocumented aspects of the OneSmartLab API may change at any time, you should not rely on these behaviors.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND THE MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, OneSmartLab AND ITS AFFILIATED COMPANIES AND THE SERVICE PROFESSIONALS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, “OneSmartLab”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND PERTAINING TO THE SERVICES AND THE MATERIALS THEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABILITY, USE REASONABLE CARE AND SKILL, AND NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. OneSmartLab MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR FREE OF VIRUSES OR BUGS, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (IV) ANY ERRORS IN OR ON THE SERVICES WILL BE CORRECTED. ANY MATERIAL, CONTENT, OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED AND/OR USED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, CONTENT OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OneSmartLab OR ON OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Electronic Communications Privacy Act Notice (18 USC §2701-2711): OneSmartLab MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. OneSmartLab will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the OneSmartLab’s equipment, transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OneSmartLab SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE QUALITY OF THE SERVICES OR THE MATERIALS USED. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OneSmartLab OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OneSmartLab AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IF IT IS DETERMINED THAT OneSmartLab IS LIABLE FOR DAMAGES, OneSmartLab’S AGGREGATE LIABILITY HEREUNDER, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO OneSmartLab DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE UNLESS THE DAMAGES ARE COVERED BY INSURANCE, IN WHICH CASE THE LIMITATION SHALL BE EQUAL TO THE LIMITS OF LIABILITY OF SUCH INSURANCE.
12. Dispute Resolution and Arbitration
It is OneSmartLab’s goal that the Services meet Subscriber’s expectations and live up to OneSmartLab’s promises to Subscriber. However, there may be instances when Subscriber feels that OneSmartLab has not fulfilled its obligations or Subscriber may have a different type of problem or dispute that needs special attention. In those instances, OneSmartLab is committed to working with Subscriber to reach a reasonable resolution that satisfies Subscriber; however, we can only do this if we know about and understand Subscriber’s issue. Therefore, for any problem or dispute that Subscriber may have with OneSmartLab, Subscriber acknowledges and agrees that Subscriber will first give OneSmartLab an opportunity to resolve Subscriber’s problem or dispute. In order to initiate this dispute resolution process, Subscriber must first send OneSmartLab a written description of Subscriber’s problem or dispute within thirty (30) days of the Services being performed by sending an email to: support@OneSmartLab.com or by mail to OneSmartLab, Attention: LEGAL, 100 Broadway Street, San Francisco, CA 94111.
Subscriber then agrees to negotiate with OneSmartLab in good faith about Subscriber’s problem or dispute. This should lead to resolution, but if for some reason Subscriber’s problem or dispute is not resolved satisfactorily within sixty (60) days after OneSmartLab’s receipt of Subscriber’s written description of it, Subscriber agrees to the further dispute resolution provisions below.
Mutual Agreement to Arbitrate
SUBSCRIBER AGREES TO SUBMIT ANY DISPUTE RELATED TO SUBSCRIBER’S USE OF THE SITE AND/OR THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. Subscriber agrees that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of Subscriber’s use of the Services, any booked and performed Service(s), and these Terms of Service, shall be final and binding arbitration, except to the extent that either party has, in any manner infringed upon or violated or threatened to infringe upon or violate the rights of either party or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case both sides acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies). Subscriber and OneSmartLab acknowledge that these Terms affect interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under these Terms (despite any other choice of law provision).
Arbitration under these Terms of Service shall be conducted by the American Arbitration Association (the “AAA”). The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon Subscriber’s filing of the arbitration demand, OneSmartLab will pay all filing, administration and arbitrator fees for claims that total less than $75,000. Regardless of the size of the claim, the parties agree to pay their respective fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees and expenses. As a limited exception to the mutual agreement to arbitrate, the parties agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
The arbitration shall take place in the state and county in which the Service was performed.
To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS AND CONDITIONS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. SUBSCRIBER AGREES TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
BOTH PARTIES AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, SUBSCRIBER AND WE BOTH UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES WE ARE GIVING UP ANY RIGHT THAT WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THESE TERMS.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
13. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled “I ACCEPT” or such similar links or methods as may be designated by OneSmartLab to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
14. Government Use
The OneSmartLab API is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the OneSmartLab API by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.
15. Indemnification and Release
Subscriber agrees to indemnify and hold harmless OneSmartLab, its related entities, affiliates, and their directors, officers, managers, employees, donors, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms. OneSmartLab reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with OneSmartLab in asserting any available defenses.
The Terms are personal to Subscriber, and are not assignable, transferable, or sublicensable by Subscriber except with OneSmartLab’s prior written consent. Any assignment in violation of this section shall be null and void. OneSmartLab may assign, transfer, or delegate any of its rights and obligations hereunder without consent.
18. Relationship of Parties
No agency, partnership, joint venture, or employment relationship is created as a result of the Terms and neither party has any authority of any kind to bind the other in any respect.
19. Notice Policy and Subscriber’s Consent
Under these Terms, Subscriber is contracting with One Smart Lab Inc., a Delaware corporation d/b/a OneSmartLab. Notice should be addressed to OneSmartLab, 100 Broadway Street, San Francisco, CA 94111.
For the avoidance of doubt, we are entering into these Terms as principal and not as agent for any other OneSmartLab company. Subject to any permitted assignment, the obligations owed by us under these Terms shall be owed to Subscriber solely by us and the obligations owed by Subscriber under these Terms shall be owed solely to us.
We may give notice in writing to the address set forth by Subscriber in Administrator’s account and such notice shall be sent via U.S. Mail, certified, return receipt requested, or by courier service. Duplicate copies of notices may be provided via e-mail to the address in Administrator’s account; except that the sending of any such duplicate copies shall not substitute for the original notice.
20. Geographic Limits of Service
OneSmartLab makes no representation that materials contained on the Services or products described or offered on or via the Services are appropriate or available for use in jurisdictions outside the United States, or that these Terms comply with the laws of any other country. Accessing the Service is prohibited from territories where the Content is illegal. If Subscriber accesses the Service from other locations, Subscriber does so at Subscriber’s own initiative and is responsible for compliance with local laws. Subscriber agrees that Subscriber will not access the Services from any territory where the contents are illegal, and that Subscriber, and not OneSmartLab, are responsible for compliance with applicable local laws.
OneSmartLab reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Services to any person, geographic area, or jurisdiction we so desire.
21. Governing Law
Except for the Arbitration Agreement set forth under Dispute Resolution and Arbitration, which is governed by the Federal Arbitration Act, these Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of California and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods.
Subscriber agrees that OneSmartLab and its Services are deemed a passive website that does not give rise to personal jurisdiction over OneSmartLab or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of California. Subscriber agrees that any action at law or in equity arising out of or relating to these Terms, or Subscriber’s use or non-use of the Services, shall be filed only in the state or federal courts located in San Francisco County in the State of California.
There may be additional state specific rights and obligations relating to the provision of the Services. Such rights and obligations shall supersede any terms to the contrary otherwise contained in these Terms.
22. Integration and Severability
These Terms and other referenced material, including any written service agreement constitutes the entire agreement between Subscriber and OneSmartLab with respect to the Services. In the event of any conflict between any written service agreement and these Terms, the service agreement shall govern. If a court in any final, unappealable proceeding holds any provision of these Terms or its application to any person or circumstance invalid, illegal or unenforceable, the remainder of these Terms shall not be affected, and shall be valid, legal and enforceable to the fullest extent permitted by law. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If you have any questions regarding these Terms, please contact us at support@OneSmartLab.com