Effective as of March 30, 2017

Welcome to Noteworth!

Noteworth Inc. (“Noteworth”, “we”, “us”, “our”), provides its services (described below) to you through its website located at www.noteworth.com (the “Site”) and through its mobile application and other related services (collectively, such services, including any new features and applications, and the Site, the “Service”), subject to the following Terms of Service (as amended from time to time, these “Terms of Service”).  We reserve the right, in our sole discretion, to change or modify portions of these Terms of Service at any time.  You should periodically visit this page to review the current Terms of Service so you are aware of any revisions to which you are bound.  If we make any revisions, we will post them on this page and will indicate at the top of this page the date these Terms of Service were last revised. We will also notify you of any material changes, through a pop-up notice,  email notification, in-Service notice or through other reasonable means. Any such changes will become effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.  If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.

Your access to and use of the Service is also subject to Noteworth’s Privacy Policy, which is hereby incorporated by reference into these Terms of Service. Our Privacy Policy is located at www.noteworth.com/legal/privacy (the “Privacy Policy”).

THESE TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.  UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST NOTEWORTH ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

 

1. Access and Use of the Service.

1.1 Description of the Service.  The Service is designed to gather information related to your health, fitness and other activities in order to aid you and your healthcare provider and/or medical insurance provider (“Provider”) in making informed decisions about your care.  The Service enables you to collect and aggregate data streams from certain third-party body- or activity-monitoring devices (the “Devices”), which data is then passed on to your Provider.  In addition, through the Service, you have the option of making available certain of your information to family or friends (each, a “Clarity Partner”).  For more information on how we collect, use and share such information, please see the Privacy Policy

1.2 Eligibility to Use the Service.  You may access and use the Service if (a) you are at least 18 years of age (or the age of majority in your jurisdiction, if different), (b) you authorized a Provider who is a Noteworth customer to share your information with Noteworth and recommend certain Devices for your use, (c) you received an enrollment kit, including Devices and a registration code, from Noteworth (the “Enrollment Kit”) and (d) you downloaded the Service and completed the registration process (including, without limitation, by agreeing to these Terms of Service).

1.3 Your Registration Obligations.  You will be required to register for an account with Noteworth in order to access and use the Service.  You agree to: (a) provide true, accurate, current and complete information on the Service’s registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. The Registration Data and other information we collect from you, including passively via Integrated Equipment (as defined below), are governed by the Privacy Policy. If, after investigation, we have reasonable grounds to suspect that any user's information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Service (or any portion thereof) by such user other than as expressly provided herein. By creating an account on the Service or accessing, browsing or otherwise using the Service, you represent and warrant that you are at least 18 years of age (or the age of majority in your jurisdiction, if different).

1.4 User Account, Password and Security.  You are responsible for maintaining the confidentiality of your password and other account information that you use to access the Service, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify Noteworth of any unauthorized use of your password or account or any other breach of security and (ii) ensure that you exit from your account at the end of each session.  Noteworth cannot and will not be liable for any loss or damage arising from a user's failure to comply with this Section.

1.5 Integrated Services.  In order to submit certain information to the Service, you must use the Devices that are sent to you in the Enrollment Kit. You understand and agree that it is your responsibility to maintain the functionality of the Devices.  The Service is designed to connect with the software featured on the Devices and/or platforms made available by the third-party providers of the Devices (collectively, the “Integrated Services”) as a convenience to you. Such integration does not imply an endorsement or recommendation of any Device or Integrated Service.  The Integrated Services will provide Noteworth with access to information that is collected by such Integrated Services, and we will use, store and disclose such information in accordance with the Privacy Policy. We may ask you to authenticate, register for or log into Integrated Services on the websites of their respective providers to take advantage of these features on the Service and their capabilities. Please remember that the manner in which the Integrated Services use, store and disclose your information is governed solely by the policies of such third parties, and Noteworth shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service that may be enabled within the Service.

1.6 Mobile Services.  The Service includes certain services that are available via a mobile device, including (a) the ability to upload content to the Service via a mobile device and (b) the ability to access certain other features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.  In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.  By using the Mobile Services, you agree that we may communicate with you regarding Noteworth and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.  In the event you change or deactivate your mobile telephone number, you agree to promptly update your Noteworth account information to ensure that your messages are not sent to the person that acquires your old number.

1.7 Modifications to Service. Noteworth reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice, including the right to require you to cease using certain Integrated Services in connection with the Service.  You agree that Noteworth will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

1.8 General Practices Regarding Use and Storage. You acknowledge that Noteworth may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Noteworth’s servers on your behalf. You agree that Noteworth has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You further acknowledge that we reserve the right to change these general practices and limits at any time in our sole discretion, with or without notice.

2. Conditions of Use.

2.1 User Conduct.  You are solely responsible for all User Content (as defined below) that you upload, post, publish, display or email or otherwise make available via the Service.  You agree not to: (a) make available any User Content via the Service that (i) you do not have a right to upload under any law or under contractual or fiduciary relationships; (ii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (iii) poses or creates a privacy or security risk to any person; (b) violate any applicable local, state, national or international law, or any regulations having the force of law; (c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service; (e) take any action that imposes an unreasonable load on the Service’s infrastructure, (f) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted on the Service, (g) copy, modify, create derivative works of, attempt to decipher, decompile, disassemble or reverse engineer any of the technology or software comprising or making up the Service (the “Software”), (h) delete or alter any material posted on the Service by Noteworth or any other person or entity, or (i) frame or link to any of the materials or information available on the Service. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation suspending or terminating the account of such violator and reporting the violator to the law enforcement authorities.    

2.2 Special Notice for International Use; Export Controls.  Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls.  No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws.  You expressly agree to comply with such restrictions and not to export or re-export any Software to countries or persons prohibited under the U.S. export control laws. By downloading or using any Software, you are expressly agreeing that you are not in a country where such export or use is prohibited or are a person or entity for which such export or use is prohibited. Downloading or using the Software is at your sole risk.  Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.  We make no claims concerning whether Software may be downloaded, viewed, or be appropriate for use outside of the United States.  You are solely responsible for your compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of any Software.    

2.3 Commercial Use Not Permitted.  Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.  The Service is for your personal use.

3. Mobile Applications.

3.1 Apple- and Google-Enabled Software Applications.  As part of the Service, Noteworth may offer mobile applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”, and such apps, “Apple-Enabled Software”) or third parties that operate using the Android operating system, which is owned by Google Inc. (“Google” which, together with Apple, is referred to herein as the “Marketplace Provider”; such software together with the Apple-Enabled Software, the “Marketplace-Enabled Software”).  With respect to the Marketplace Enabled Software, in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:

a) Noteworth and you acknowledge that these Terms of Service are concluded between Noteworth and you only, and not with the Marketplace Provider, and that as between Noteworth and the Marketplace Provider, Noteworth, not the Marketplace Provider, is solely responsible for the Marketplace-Enabled Software and the content thereof.

b) You may not use the Marketplace-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Marketplace-Enabled Software in, or otherwise be in conflict with, the applicable market place terms of service (the “App Store Terms of Service”).

c) Your license to use the Marketplace-Enabled Software is limited to a non-transferable license to use the Marketplace-Enabled Software on an iOS Product or Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.

d) The Marketplace Provider has no obligation whatsoever to provide any maintenance or support services with respect to the Marketplace-Enabled Software.

e) The Marketplace Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Noteworth’ sole responsibility, to the extent it cannot be disclaimed under applicable law.

f) Noteworth and you acknowledge that Noteworth, not the Marketplace Provider, is responsible for addressing any claims of you or any third party relating to the Marketplace-Enabled Software or your possession and/or use of that Marketplace-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Marketplace-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. 

g) In the event of any third-party claim that the Marketplace-Enabled Software or the end-user’s possession and use of that Marketplace-Enabled Software infringes that third party’s intellectual property rights, as between Noteworth and the Marketplace Provider, Noteworth, not the Marketplace Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

h) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

i) If you have any questions, complaints or claims with respect to the Marketplace-Enabled Software, they should be directed to Noteworth.

j) Noteworth and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to any Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.

The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/android-developer-policies.html). The Google Play Market Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.

3.2 App Updates.  You acknowledge and agree that we may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of our mobile app(s) and the Service. You consent to these updates and agree such updates may be automatically installed without providing any additional notice or receiving any additional consent from you. If you do not want such updates, your remedy is to stop using the applicable app. You acknowledge that you may be required to install updates to use our apps, and you agree to promptly install any updates Noteworth provides if the update does not automatically install. By continuing to use an app after an update, you renew your agreement to these Terms of Service.

3.3 Push Messaging Express Consents.  By consenting to receive content-related messages from Noteworth when you register for a Noteworth account, you expressly agree that we may communicate with you regarding an applicable app or the Service generally by push notification directed to your mobile device and that certain information about your usage of the app may be communicated to us. 

3.4 Electronic Notices.   By using the Service, you agree that we may communicate with you electronically via email regarding security, privacy and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please notify us at hello@noteworth.com.

4. Intellectual Property Rights.

4.1 Service Content.  The Service contains material, including but not limited to text, graphics, images and the Software (collectively referred to as the “Service Content”), that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. We may own the Service Content or portions of the Service Content may be made available to us through arrangements that we have with third parties. Unauthorized use of the Service Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Service Content, and you will not use, copy or display the Service Content except as permitted under these Terms of Service. You must retain all copyright and other proprietary notices contained in the original Service Content on any copy you make of the Service Content. You will not to sell, transfer, assign, license, sublicense, or modify the Service Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service Content in any way for any public or commercial purpose. The use or posting of any of the Service Content on any other platform, service or in a networked computer environment for any purpose is expressly prohibited.  You will not frame or scrape the Service or the Service Content, in whole or in part, and you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods.  No other use of the Service Content is permitted without our prior written consent, and any rights not expressly granted in these Terms of Service are reserved by Noteworth. If you violate any part of these Terms of Service, your right to access and/or use the Service Content and the Service will automatically terminate and you will immediately destroy any copies you have made of the Service Content.  None of the Service Content may be retransmitted without the express written consent from Noteworth for each and every instance.

4.2 Trademarks.  The trademarks, service marks, and logos of Noteworth (the “Noteworth Trademarks”) used and displayed on this Service are registered and unregistered trademarks or service marks of Noteworth. Other Noteworth product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Noteworth Trademarks, the “Trademarks”). Nothing on the Service or in these Terms of Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without the prior written consent of Noteworth specific for each such use. The Trademarks may not be used to disparage Noteworth or the applicable third party, Noteworth’s or the applicable third party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any Service is prohibited without Noteworth’s prior written consent. All goodwill generated from the use of any Noteworth Trademark will inure to our exclusive benefit.

4.3 Third-Party Content.  Under no circumstances will NOTEWORTH be liable in any way for any content or materials of any third parties, including without limitation any content or materials made available in connection with the Integrated Services, or for any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content.  You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

4.4 User Content.  In addition to information that is made available on the Service through your use of the Integrated Services, you may be able to directly input or submit certain information regarding your health, fitness and activities (“User Content”) directly into the Service through text fields, drop-down menus or similar means. For example, if you are using the Service to track your caloric intake, you may enter information about your meals and snacks into the Service. You hereby grant and will grant to Noteworth and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to (a) copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service and (b) use your User Content in aggregated and/or anonymized format in connection with (i) the promotion, advertising or marketing of the Service or (ii) other services we provide to our customers and business partners.  You represent and warrantthat you have the rights to upload, input or submit the User Content to the Service and grant the foregoing license. Noteworth is not obligated to pre-screen or review User Content, but Noteworth reserves the right to do so to ensure your compliance with these Terms of Service. Noteworth will also have the right (but not the obligation) in its sole discretion to disable access to or delete any User Content that it considers to violate these Terms of Service or be otherwise illegal.  Noteworth may share User Content with Providers and Clarity Partners, as well as otherwise described in the Privacy Policy

4.5 Feedback.  You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Feedback”), provided by you to Noteworth are non-confidential and Noteworth will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.  You further acknowledge and agree that Noteworth may preserve content (including User Content) and may also disclose such content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Noteworth, its users and the public. You understand that the technical processing and transmission of the Service, including your information, data or content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

5. Third-Party Websites and Services.  The Service contains links to and may otherwise be integrated with third-party websites and services, including, without limitation, the Integrated Services (“Third-Party Services”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such Third-Party Services. You should contact the service administrator or webmaster for a Third-Party Service if you have concerns regarding any links or content located on such Third-Party Service.  We are not responsible for and have no control over the content of any linked Third-Party Services and do not make any representations regarding the content or accuracy of any materials on such Third-Party Services. You should take precautions when downloading files from all Third-Party Services to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Services, you do so at your own risk.  You agree that Noteworth will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on Third-Party Services. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Noteworth is not liable for any loss or claim that you may have against any such third party.

6. Disclaimers.

YOU UNDERSTAND AND AGREE THAT (A) NOTEWORTH IS NOT ENGAGED IN THE PRACTICE OF MEDICINE OR THE PROVISION OF HEALTHCARE SERVICES OR PROFESSIONAL OR MEDICAL ADVICE AND (B) THE SERVICE IS NOT A REAL-TIME SAFETY MONITOR. THE SERVICE IS DESIGNED SOLELY FOR THE PURPOSE OF FACILITATING INTERACTIONS BETWEEN YOU AND YOUR PROVIDER AND CLARITY PARTNERS AND IS NOT INTENDED TO BE USED TO TREAT OR CURE ANY DISEASE. NOTEWORTH, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “NOTEWORTH PARTIES”) MAKE NO WARRANTY REGARDING THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH OR IN CONNECTION WITH YOUR USE OF THE SERVICE WILL MEET YOUR EXPECTATIONS.

THE NOTEWORTH PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR SECURITY. THE NOTEWORTH PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER VIA THE SERVICE OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SERVICE AND THE SERVICE CONTENT AT YOUR OWN RISK.THE NOTEWORTH PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE OR THAT THE SERVICE, ITS SERVER OR THE SERVICE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR THE SERVICE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO NOTEWORTH PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.

THE SERVICE AND THE SERVICE CONTENT ARE PROVIDED ON A STRICTLY “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE NOTEWORTH PARTIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

NOTEWORTH is not responsible for the accuracy, availability or reliability of any information, content, products, data, opinions, advice or statements made available in connection with the Integrated Services. As such, NOTEWORTH will not be liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Integrated Service.

IF YOU ARE A NEW JERSEY RESIDENT, THIS SECTION 6 (DISCLAIMERS) IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

7. Limitation of Liability.

IN NO EVENT WILL ANY NOTEWORTH PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, THE SERVICE CONTENT OR USER CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH NOTEWORTH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY, AND THE LIABILITY OF ANY OTHER NOTEWORTH PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.

IF YOU ARE A NEW JERSEY RESIDENT, THIS SECTION 7 (LIMITATION OF LIABILITY) IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH IN SECTIONS 6, 7 AND 8 MAY NOT APPLY TO OR BE ENFORCEABLE WITH RESPECT TO YOU IF YOU ARE A RESIDENT OF SUCH JURISDICTIONS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

8. Indemnification and Release.

You agree to release, indemnify and hold harmless the Noteworth Parties from any losses, damages, expenses (including reasonable legal fees) claims, actions of any kind and injury (including death) arising out of or resulting from (a) your breach of these Terms of Service, (b) your access to, use or misuse of the Service Content or Service, (c) User Content or (d) your violation of any rights of another. Noteworth will provide notice to you of any such claim, suit, or proceeding. Noteworth reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Noteworth’s defense of such matter.

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

IF YOU ARE A NEW JERSEY RESIDENT, YOUR OBLIGATIONS UNDER THIS SECTION 8 (INDEMNIFICATION AND RELEASE) ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

9. Termination of the Agreement. 

Noteworth reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of the Service, the Service Content or User Content at any time and for any reason without prior notice or liability. Noteworth reserves the right to change, suspend, or discontinue all or any part of the Service or the Service Content at any time without prior notice or liability.  You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Noteworth may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Noteworth will not be liable to you or any third party for any termination of your access to the Service.  You may terminate your account at any time and for any reason by notifying us via email at help@noteworth.com.

10. U.S. Government Restricted Rights.

The Service is provided with “RESTRICTED RIGHTS.”  Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Service by the Government constitutes acknowledgement of our proprietary rights in the Service.

11. Dispute Resolution By Binding Arbitration.

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

11.1 Agreement to Arbitrate. This Section entitled “Dispute Resolution By Binding Arbitration” is referred to in these Terms of Service as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and Noteworth, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify.  Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf.  You agree that, by entering into these Terms of Service, you and Noteworth are each waiving the right to a trial by jury or to participate in a class action.  Your rights will be determined by a neutral arbitrator, not a judge or jury.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

11.2 Prohibition of Class and Representative Actions and Non-Individualized Relief.  YOU AND NOTEWORTH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  UNLESS BOTH YOU AND NOTEWORTH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.  ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).  

11.3 Pre-Arbitration Dispute Resolution.  Noteworth is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at help@noteworth.com.  If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice to Noteworth should be sent to Data Minded Solutions, Inc. at 70 Hudson Street, 4th Fl, Hoboken, NJ 07030 (“Notice Address”).  The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought.  If Noteworth and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Noteworth may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Noteworth or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Noteworth is entitled.

11.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement.  For information on the AAA, please visit its website, http://www.adr.org.  Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration.  If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  The arbitrator must also follow the provisions of these Terms of Service as a court would.  All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement.  Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Noteworth and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, the determination shall be made by AAA.  If your claim is for $10,000 or less, Noteworth agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules.  If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

 

11.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  If the value of the relief sought is $25,000 or less, at your request, Noteworth will pay all Arbitration Fees.  If the value of relief sought is more than $25,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Noteworth will pay your portion of such fees.  In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Noteworth will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  Any payment of attorneys’ fees will be governed by the AAA Rules.

11.6 Confidentiality.  All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

11.7 Severability.  Without limiting the severability provision below in these Terms of Service, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court or the arbitrator decides that any of the provisions of Section (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void.  The remainder of the Terms of Service will continue to apply.

11.8 Future Changes to Arbitration Agreement.  Notwithstanding any provision in these Terms of Service to the contrary, Noteworth agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Noteworth written notice within thirty (30) calendar days of the change to the Notice Address provided above.  By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.

12. Miscellaneous.

These Terms of Service constitute the entire agreement between you and Noteworth and govern your use of the Service, superseding any prior agreements between you and Noteworth with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Noteworth agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York.  The failure of Noteworth to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service 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 the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Noteworth, but Noteworth may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

13. Your Privacy.

Noteworth respects the privacy of our users. For details, please see the Privacy Policy. By using the Service, you consent to our collection and use of your data as outlined therein.

14. Questions?  Concerns?  Suggestions?

 Please contact us at hello@noteworth.com with any questions, concerns or suggestions related to Noteworth, these Terms of Service or the Service.