Dharma Platform Customer Agreement
Last Updated: March 12, 2018
IMPORTANT – READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE DHARMA SERVICE YOU AGREE TO BE BOUND BY THESE DHARMA CUSTOMER TERMS OF SERVICE. THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT, UNLESS YOU OPT-OUT PURSUANT TO THE PROCESS SET FORTH IN SECTION 10, IMPACT YOUR RIGHTS REGARDING DISPUTE RESOLUTION.
Welcome to Dharma! These Customer Terms of Service (the “Agreement”) are entered into by and between Dharma Platform, Inc., a Delaware corporation, (“Dharma,” “we” or “us”) and the person or entity agreeing to these terms (“Customer” or “you”). This Agreement applies to your (including your User’s (as defined below)) access to and use of Dharma’s websites, applications, and online services (including those of our subsidiaries and affiliates) and your purchase of services from us. You may signify your acceptance and agreement to the terms and conditions of this Agreement, including the disclaimers of Section 8, liability limitations of Section 9, and mandatory arbitration provision and class action waiver in Section 10, by either checking the “I Accept” box or by signing an order form that references this Agreement (an “Order Form”). This Agreement is effective as of the date you check the “I Accept” box or sign an Order Form (the “Effective Date”). If you do not agree to these Terms, do not check the “I Accept” box or sign an Order Form.
We reserve the right to change or revise this Agreement at any time, in our sole discretion. If we make changes to this Agreement, we will provide you with notice of such changes, such as by sending an email notification, providing notice through the Services (as defined below), or updating the “Last Updated” date at the beginning of this Agreement. If you do not accept the changes, you must stop using the Services. Your continued use of our Services after we publish or send a notice about our changes to this Agreement means that you are consenting to the updated terms. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access and use the Services and purchase Services from us. Notwithstanding the foregoing, if you are on an Annual Plan (as defined below), this Agreement as existing as of the Effective Date of such Annual Plan shall govern your purchase and use of the Services until the renewal, suspension or termination of such Annual Plan, after which time, the Agreement then in effect shall govern.
This Agreement, including any referenced documents and any Order Form, is the entire agreement between the parties regarding the Services, superseding all other agreements between you and Dharma with respect to the Services, whether oral or written. In the event of a conflict between the terms and conditions of the User Terms (as defined below) and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern. In the event of a conflict between the terms and conditions of an Order Form and the terms and conditions of this Agreement, the terms and conditions of the Order Form shall govern.
Description of Services.
Dharma offers a cloud-based software-as-a-service platform to design, capture, store, secure, analyze, and manage datasets, which is accessed through websites and mobile applications (the “Services”). The Services include (i) interactive features that allow you and your Users to create, post, share and store questionnaires (“Forms”) through which data, including, but not limited to, text, photos, videos, graphics, code, items or other materials, (“Responses”) may be inputted and (ii) system features that tag Responses with the various data regarding such response, including, but not limited to, the time, date and location of collection (“Response Meta-Data”) and conduct statistical analysis of such Responses and Response Meta-Data and output the results thereof (such results, “Statistical Data”, and together with the Forms, Responses and Response Meta-Data, shall hereinafter be defined as “Customer Data”). The Services also include access to certain Dharma content contained therein, including, but not limited to, logos, designs, text, graphics, photos, videos, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Materials”). Unless explicitly stated otherwise, any new features that augment or enhance the Services, including the release of new tools, Materials and resources, shall be subject to this Agreement.
License to Customer.
Dharma grants you a non-exclusive, worldwide, non-sublicensable, and non-transferable limited license to access and use the Services and Materials solely for your internal purposes. Such license is subject to and limited by the terms and conditions of this Agreement.
Service Level Standards.
We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will strive to provide Customer with advance notice (e.g., through the Services), if we think it may exceed five (5) continuous minutes.
2. Subscription Periods, Payment Terms.
Through your online selection or via an Order Form, you may elect one of the following subscription plans and billing options:
Pay-As-You-Go subscription plan (“Pay-As-You-Go Plan”). The Subscription Period for the Pay-As-You-Go Plan is monthly and will renew indefinitely until such time as you terminate your Service or Dharma suspends or terminates your Service. You will be invoiced and payment will be processed on or about the same day each month. The amount of your monthly bill will be calculated based on the amount of Customer Data you entered into the Services throughout the previous calendar month. You will be charged for all Customer Data that you input, regardless of whether you later delete such Customer Data. Additional charges may also apply for your use of advanced support services and/or your storage of media and other data in the Services (“Additional Charges”). We will disclose any Additional Charges that might apply prior to you incurring them. In order to subscribe to a Pay-As-You-Go Plan, you must input and maintain in the Service valid credit card or Automated Clearing House (“ACH”) payment information so that payment may be automatically processed on your payment date.
Annual subscription plan (“Annual Plan”). The Subscription Period for the Annual Plan will be for one year (or such other duration as may be set forth in an Order Form) and will automatically convert into a Pay-As-You-Go Plan at the end of such period (the “Anniversary Date”) unless you renew such Annual Plan prior to your Anniversary Date. You will be billed for the entire term at the beginning of the period and, if you renew such Annual Plan, upon each renewal until such time as you convert into a Pay-As-You-Go Plan or cancel. The amount of your bill will be calculated based on the number of Users you have elected to purchase. Additional monthly charges may also apply for your use of advanced support services and/or your storage of media and other data in the Services (“Additional Charges”). We will disclose any Additional Charges that might apply prior to you incurring them. Note that under the Annual Plan you will not be permitted to cancel or reduce the number of Users until the Anniversary Date. In order to subscribe to an Annual Plan, you must input and maintain in the Service valid credit card or ACH payment information so that payment may be processed on your payment date.
If you select the Pay-As-You-Go Plan, you can switch to the Annual Plan at any time. If you select the Annual Plan, you may not change to the Pay-As-You-Go Plan until the end of the term of your Annual Plan.
You must provide us with current, complete, accurate and authorized payment information (e.g. credit card or ACH). You represent and warrant that you are authorized to use the designated payment method. You authorize us to (i) charge your payment method for the total amount of your fees (including any applicable taxes and other charges) immediately upon our issuance of your invoice, (ii) charge your credit card or other payment method on a periodic recurring basis in accordance with the terms of your subscription plan, (iii) use a third party to process such payments, and (iv) disclose your payment information to such third party. You acknowledge that the amount billed may vary due to your data usage, changes in applicable taxes or other charges, and you authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount. To the extent Dharma has not received your payment, in order to bring your account up to date, we may invoice and charge you simultaneously for both past due and current amounts. If you do not cancel your account, we may automatically renew your Services and charge you for any renewal term. In the event you want to change or update your payment information, you can do so at any time by logging into your account and editing your payment information. You may remove your authorization for us to charge your provided payment method at any time by emailing your request to firstname.lastname@example.org, but you understand that failure to pay any charges or fees may, subject to applicable law, result in the suspension or termination of your access to the Services (including, but not limited to, your access to all Customer Data in the Services) and that all charges or fees incurred by you will remain due and payable. In the event we are unable to process payment for any amounts owed, we may, subject to applicable law, suspend or terminate your account at any time following such payment failure, provided, however, we will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. Unless we state otherwise, all payments must be made in U.S. Dollars.
Interest and Additional Terms.
Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. You will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services. Notwithstanding any terms to the contrary in this Agreement, (i) Dharma, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period, and (ii) Dharma will not be obligated to issue any refunds for Subscription Fees paid.
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Service. You shall have no liability for any taxes based on our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding
Online Statement and Errors.
Dharma will provide you with an online billing statement on your Dharma account page where you can view and print your statement. This is the only billing statement that we provide. If we make an error on your bill, you must tell us within 180 days after the error first appears on your bill. We will then promptly investigate the charge. If you do not tell us within that time, you release us from all liability and claims of loss resulting from the error and we won’t be required to correct the error or provide a refund. If Dharma has identified a billing error, we will correct that error within 90 days.
3. Termination and Effects of Termination.
Subject to any continued payment obligations through your Subscription Period, you are free to stop using the Services at any time. You may early terminate an Annual Plan if we breach this Agreement and do not remedy such breach within 30 days after our receipt of your written notice of such breach. Subject to applicable law, we reserve the right to immediately suspend or terminate your access to the Services with notice to you if (a) you are in breach of this Agreement and do not remedy such breach within 30 days after your receipt of written notice from us of such breach, (ii) you are using the Services in a manner that would cause a real risk of harm or loss to us or other users, (iii) you fail to pay any fees when owed, including, but not limited to, through the failure or revocation of your payment method, (iv) if you are not in an Annual Plan, at any time in our sole discretion, or (v) if you are in an Annual Plan, by providing you written notice prior to your Anniversary Date.
Notwithstanding anything else to the contrary in this Agreement or an Order Form, if we believe, in our sole discretion, that circumstances exist that require suspension of the Services in order to protect the security or integrity of the Services or your or another user’s data, Dharma may automatically suspend your use of the Services without prior notice. Dharma will make commercially reasonable efforts to narrowly tailor the suspension as needed to address such circumstances.
Discontinuation of Services.
We may decide to discontinue the Services in response to unforeseen circumstances beyond our control or to comply with legal requirements. If we do so, we’ll give you reasonable prior notice so that you can export your Customer Data. If we discontinue the Services before the end of any Annual Plan for which you have prepaid, we’ll refund pro-rata that portion of the fees for which you have not received Services.
Effects of Termination.
Upon any suspension or termination of the Services, we may determine the degree to which your continued access to the Services is restricted or revoked. In the event we permit you continued access to the Services, limited or otherwise, following a suspension or termination (any such period, a “Limited Access Period”), you agree to continue to be bound by this Agreement. Notwithstanding any terms to the contrary in this Agreement, this sentence and Sections 5-12 will survive any termination or expiration of this Agreement.
4. Customer Rights and Obligations.
Administration of the Services.
You may specify additional users of the Services under your account (“Users”) and may designate the degree of access and control each User has under your account. User accounts may only be provisioned, registered, and used by a single User. As between you and Dharma, you are solely responsible for the internal management and administration of the Services under your account, including, but not limited to, designating those individuals who will become Users, controlling your Users’ continued access to the Services through your account, ensuring that all activities that occur in connection with your account by you and your Users comply with applicable law and this Agreement, and managing administrative access to your account. You will prevent unauthorized use of the Services by your Users or other individuals and terminate any unauthorized use of or access to the Services.
You are responsible for the selection of and maintaining the confidentiality of your and your Users’ passwords, IDs or other credentials and login information (collectively, “Credentials”). You agree that Dharma has no liability with respect to the Credentials, including, but not limited to, liabilities related to any laws, rules or regulations governing the selection and securing of Credentials. You must notify Dharma immediately if you have reason to believe that the security of your account has been compromised or if the Services have been accessed by any unauthorized individuals.
You agree you will not, nor will you encourage or assist or permit your Users or other persons to use the Services in a manner that violates Dharma’s acceptable use covenants (legal.dharma.ai/docs/acceptable-us) (“Acceptable Use Covenants”).
As between you and Dharma, you are solely responsible for all liabilities (“Customer Liabilities”) associated with your compliance with the Acceptable Use Covenants and the collection, retention, deletion, display, and sharing of Credentials and Customer Data, including, but not limited to, liabilities associated with (i) Customer Data that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, (ii) Customer Data that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law, (iii) Customer Data that contains any private or personal information of a third party without such third party’s consent, (iv) Customer Data that is libelous, defamatory, harassing, threatening, objectionable, misleading, invasive of privacy or publicity rights, fraudulent or otherwise unlawful, (v) Credentials or Customer Data that, due to its classification (e.g., personal data under the EU General Data Protection Regulation, protected health information under HIPAA Privacy Rule, or personal information of a child under the U.S. Children’s Online Privacy Protection Act) under any law, regulation or court order must meet certain requirements or be retained, deleted, protected or maintained in a certain manner in accordance with such law, regulation or court order, and (vi) a security breach resulting from Customer’s failure to maintain the security of its Credentials.
Recognizing the global nature of the Internet and the Services, you agree to comply with all local rules regarding online conduct and acceptable Customer Data. Specifically, you agree to comply with all applicable laws regarding the transmission of certain technical data exported from the United States or the country in which you reside.
Ownership and License.
As between you and Dharma, you own all Customer Data. You grant Dharma a non-exclusive, royalty-free, worldwide, perpetual, sub-licensable right and limited license to access, use, copy, reproduce, process, adapt, store and transmit Customer Data solely for the limited purpose of providing, analyzing, and improving the Services and providing you with requested support. Feedback. Separate and apart from Customer Data, you can submit to us any questions, comments, suggestions, ideas, original or creative materials and other information about Dharma, the Services and our products and services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Dharma. Dharma shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not store, transmit or otherwise process any information via the Services that falls within the definition of “Protected Health Information” under the HIPAA Privacy Rule (45 C.F.R. Section 164.051), unless you enter into Dharma’s Business Associate Agreement (legal.dharma.ai/docs/baa) (“BAA”). The BAA will govern any Dharma access to Customer Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320(d)), including information relating to any Customer health plan, pharmacy or medical facility. To enter into a BAA, contact Dharma at email@example.com.
GDPR Protected Personal Data.
You may not store, transmit or otherwise process any information via the Services that falls within the definition of “Personal Data” under the EU General Data Protection Regulation, unless you also agree to be bound by the GDPR Agreement (legal.dharma.ai/docs/gdpr) (“GDPR Agreement”). The GDPR Agreement will govern any Dharma access to Personal Data belonging to citizens of European Union and Switzerland. By inputting, transmitting or otherwise processing any Personal Data via the Services, you thereby agree to the terms and conditions of the GDPR Agreement. If you do not agree to the GDPR Agreement, do not input, transmit or otherwise process any Personal Data via the Services.
5. Dharma’s Proprietary Rights.
The Services and Materials are developed, owned, and operated by Dharma and are protected by United States patent and copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. To improve and develop our products and services, we use various forms of machine learning within the Services and monitor the use and performance of the Services (“Dharma Diagnostic Information”). Through our analysis of the Dharma Diagnostic Information, we develop higher levels of understanding of how users interact with the Services, how various data sets interrelate and/or perform in statistical calculations, and how to develop and improve our algorithms, calculations, and processes (collectively, “Learnings”). As between you and Dharma, we own the Services, Materials, Feedback, Dharma Diagnostic Information, and Learnings.
6. Representations and Warranties.
Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms. Further, Customer possesses the necessary rights and consents to grant Dharma the rights set forth in this Agreement with respect to the Customer Data.
Dharma, at its sole expense, will defend Customer from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, disbursements and amounts that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing), resulting from or arising in connection with Dharma’s breach of any of its representations or warranties set forth in Section 6. Dharma’s indemnification obligations do not extend to Claims arising from or relating to (i) any breach that occurs during any period in which Customer is in a Limited Access Period or otherwise in a non-paying status (e.g., during any free trial period), (ii) any negligent or willful misconduct of Customer or any of Customer’s employees, contractors, service providers, and/or Users (collectively, the “Customer Personnel”) or any third party, (iii) any modification to the Services by any of the Customer Personnel or any third party, (iv) the use of the Services by any of the Customer Personnel or any third party in a manner contrary to the terms of this Agreement or the App Terms where the breach would not have occurred but for such use, or (v) any act or omission of any of the Customer Personnel where the breach would not have occurred but for such act or omission.
Customer, at its sole expense, will defend Dharma from and against any and all Claims, and indemnify Dharma from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, disbursements and amounts that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing), resulting from or arising in connection with (a) any Customer Liabilities or (b) the actual breach of any of Customer’s representations or warranties set forth in Section 6.
The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
DHARMA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK OF USING THE SERVICES. DHARMA DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE ACCURACY OF ANY DATA, STATISTICAL ANALYSIS OR STATISTICAL DATA. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON’T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
9. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL DHARMA, ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF DHARMA HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, THE MAXIMUM AGGREGATE LIABILITY OF DHARMA AND ITS AFFILIATES, OFFICERS, RESELLERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU ACTUALLY PAID TO DHARMA FOR THE SERVICES IN THE PAST TWELVE (12) MONTHS; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 9 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. CUSTOMER AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGES THAT WITHOUT CUSTOMER’S AGREEMENT TO THESE LIMITATIONS, THE FEES CHARGED TO CUSTOMER FOR THE SERVICES WOULD BE HIGHER. THE PARTIES AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK.
10. Dispute Resolution; Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH DHARMA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
For any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”), other than Disputes arising out of or related to a violation of the Acceptable Use Covenants or 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 (“Excepted Disputes”), you and Dharma agree (a) to waive your and Dharma’s respective rights to have any and all Disputes arising from or related to this Agreement, the Services, Materials, Feedback, Dharma Diagnostic Information, Learnings or the products or services purchased from us resolved in a court, and (b) to waive your and Dharma’s respective rights to a jury trial. Instead, you and Dharma 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 jury in court).
No Class Arbitrations, Class Actions or Representative Actions.
You and Dharma agree that any Dispute arising out of or related to this Agreement, the Services, Materials, Feedback, Dharma Diagnostic Information, Learnings or the products or services purchased from us is personal to you and Dharma 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 Dharma 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 Dharma agree that a Dispute cannot be brought as a class or other type of representative action, whether in or outside arbitration, or on behalf of any other individual or group of individuals.
U.S. Federal Arbitration Act.
You and Dharma agree that this Agreement affects interstate commerce and that the enforceability of this Section 10 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.
Notice; Informal Dispute Resolution.
You and Dharma agree that each party will notify the other party in writing of any arbitrable 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 Dharma shall be sent by certified mail or courier to Dharma Platform, Inc., 80 M Street SE, Washington, District of Columbia 20003, United States. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Dharma 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 to the email address associated with your account 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 Dharma 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 Dharma may, as appropriate and in accordance with this Section 10, commence an arbitration proceeding or, to the extent specifically provided for in the first paragraph of this Section 10, file a claim in court.
Except for Excepted Disputes, you and Dharma agree that any Dispute must be commenced or filed by you or Dharma within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Dharma will no longer have the right to assert such claim regarding the Dispute). You and Dharma agree that (a) any arbitration will occur in Washington, D.C. in the United States; (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules & Procedures (http://www.jamsadr.com/rules-streamlined-arbitration/) (“JAMS Rules”), which are hereby incorporated by reference; and (c) the federal courts of Washington, D.C. 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. Authority of Arbitrator. As limited by the FAA, these Terms and the applicable JAMS 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 arbitrable, 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. 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.
The JAMS Rules and additional information about JAMS are available on the JAMS website (http://www.jamsadr.com). By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the JAMS Rules or (b) waive your opportunity to read the JAMS Rules and any claim that they are unfair or should not apply for any reason. Severability. If any term, clause or provision of this Section 10 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 10 will remain valid and enforceable. Further, the waivers set forth in the second paragraph of this Section 10 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law. Opt-Out Right. 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 10 by writing to: Dharma Platform, Inc., 80 M Street SE, Washington, District of Columbia 20003, the United States. 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 the first paragraph of Section 12.
During your use of the Services, you or Dharma (the “Disclosing Party”) may share information with the other party (the “Receiving Party”) that is confidential, sensitive or should be kept secret (“Confidential Information”). Dharma’s Confidential Information includes, but is not limited to, our product roadmaps, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans, financials, and business processes. Your Confidential Information includes, but is not limited to, your Credentials, Customer Data, and credit card or ACH information. A Disclosing Party’s Confidential Information also includes any documents that are labeled “confidential” (or something similar), or other information (either in writing or verbal) that is of a type that a reasonable person should understand it to be confidential. Confidential Information does not include information that (a) the Receiving Party already knew at the time it was disclosed to them; (b) was told to the Receiving Party by a third party who had the right to tell them such information; (c) is generally available to the public; or (d) was independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information. The Receiving Party will maintain in confidence and not disclose to any third-party the Disclosing Party’s Confidential Information during the term of this Agreement and for a ten-year period commencing upon the effective date of termination of this Agreement and will not use such Confidential Information except as expressly permitted in this Agreement. Further, the Receiving Party will treat the Disclosing Party’s Confidential Information with the same degree of care that the Receiving Party treats its own Confidential Information.
12. General Provisions.
Governing Law and Venue.
You agree that this Agreement, and your relationship with Dharma will be governed by the laws of the District of Columbia in the United States, without regard to conflict of law rules or principles (whether of the District of Columbia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. We both agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to these Terms. Any Dispute between the parties that is not subject to arbitration or that cannot be heard in small claims court, shall be resolved in the state or federal courts located in the United States in the city of Washington, D.C. However, you agree that Dharma can apply for injunctive remedies in any jurisdiction.
Consent to Electronic Communications & Solicitation.
By registering with Dharma or signing up for Services, you understand that we may send you (including via email to the email address you provided us) information regarding the Services, such as: (a) notices about your use of the Services, including notices of violations of use, (b) updates to the Services and new features or products, (c) correspondence to convey information about action taken on your request, (d) promotional information and materials regarding Dharma’s products and services, and (e) any notices required under applicable law. Notices emailed to you will be considered given and received when the email is sent. If you don’t consent to receive notices (other than promotional materials) electronically, you must stop using the Services.
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either party may assign this Agreement without other party’s prior written consent to any third party that purchases all or substantially all of such party’s business or assets by merger, acquisition, sale, reorganization, or otherwise. Subject to the other terms and conditions set forth in this provision, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Waiver and Severability.
A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision.
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.