Aphinia Terms of Service
Updated on: May 2, 2020
Welcome to Aphinia!
Please read these Terms of Service (these “Terms”) carefully as they are a binding agreement by and between Aphinia, Inc. (together, except in any instance where the Terms expressly state otherwise, with each of its direct and indirect subsidiaries, “Aphinia”, “us”, or “we”) and each member of or applicant for Membership in Aphinia or (if you are not a Aphinia member or have not applied to become one) each visitor to and/or unregistered user (“you” or “your ” being interpreted accordingly) of Aphinia’s Services (defined below). Each of Aphinia and you may be referred to as a “Party” and, collectively, as the “Parties”. PLEASE NOTE THAT THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED IN ORDER TO RESOLVE DISPUTES.
If you do not agree with all of the provisions of these Terms, do not submit an application to become a Member, or, if already a Member, do not continue to use your Membership, and otherwise do not access, use or continue to use any of Aphinia’s Services (defined below) including any part of the Platform or any Aphinia Materials.
1.1. What Is Governed By These Terms. These Terms set forth the terms and conditions governing your access to and use of the Platform, your Membership, and your access to, use of, and participation in Aphinia’s services, Events, and the Aphinia Materials (as defined below) (collectively, the “Services”).
1.2. Additional Terms. Your use of some components, portions or features of the Services may be subject to additional terms and conditions as specified by us from time to time. Such additional terms and conditions shall be deemed incorporated in their entirety into these Terms by reference. This includes any additional terms and conditions with regard to specific Membership benefits, features or limitations that may be described through the Platform. In the event of a conflict between any such additional terms and conditions, or other any agreement between you and Aphinia, and any provision in these Terms, such additional terms or other agreement shall govern, but only with respect to the portion of the Platform to which such additional terms or other agreement applies.
1.3. Using the Services on Behalf of a Legal Entity. In the event you are taking any action or engaging in any conduct governed by these Terms at the direction of or on behalf of a legal entity (including using any of the Services through any sort of account created by and/or for such legal entity), “you” will refer to both you as the individual engaging in that action or action and the particular legal entity you are acting at the direction of or on behalf of.
1.5. Right to Become a Member or to Use the Services.
1.5.1. Aphinia only approves the Membership of those individuals meeting our specific criteria and you acknowledge and agree that you may only become a Member if Aphinia, in its sole discretion, approves of your Membership application. In addition, we may, in our sole discretion, refuse to offer Membership or access or use of the Services to any Person and we may likewise change our eligibility criteria for Membership at any time.
1.5.2. If you are under age 18, you may not, under any circumstances or for any reason, become a Member or use any part of the Services, whether for your own use or on behalf of a legal entity.
1.5.3. You are solely responsible for ensuring that your Membership, your accessing or use of the Services, and these Terms are in compliance with all laws, rules, regulations, and orders of any court or other Governmental Authority applicable to you. Your right to be a Member or to access or use any part of the Services shall be automatically and without notice from us revoked where these Terms, your Membership or use of any part of the Services is prohibited by any law, rule, regulation or order of a court or other Governmental Authority applicable to you. Further, unless you and Aphinia expressly agree otherwise in writing, your Membership and the Services are made available only for your use and benefit and not for the use or benefit of any other party.
1.5.4. FOR THE AVOIDANCE OF DOUBT, APHINIA RETAINS THE RIGHT IN ITS SOLE DISCRETION TO DENY USE OR ACCESS TO ANYONE TO ALL OR ANY PART OF THE SERVICES AT ANY TIME AND FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, FOR VIOLATION OF THESE TERMS.
2. AUTHORIZATION; RESTRICTIONS ON USE.
2.1. Authorization to Use the Services, the Aphinia Materials, and the Aphinia Platform. Aphinia hereby provides you with a limited, non-transferable, non-sublicensable royalty-free authorization to access and use the Services, including accessing and using the Platform and the Aphinia Materials, provided that any such access and/or use is in complete compliance with these Terms.
2.2. Intellectual Property Rights. You understand, acknowledge, and agree that any and all Intellectual Property (including all Intellectual Property Rights therein) and other proprietary elements of the Services, including the Platform and all Aphinia Materials, are and shall remain the sole and exclusive property of Aphinia and its licensors, or other providers of such services and materials and are protected by United States and international copyright, trademark, patent, trade secret, and other Intellectual Property-related and other proprietary rights-related Applicable Laws. All rights not expressly granted to you herein are reserved to Aphinia and its licensors and other providers.
2.3. Services Are For Personal Use Only; Restrictions on Use. Unless Aphinia expressly states otherwise in writing, you may only use the Services for your personal, non-commercial use only. You shall not access or use, and shall use all commercially reasonable efforts to prevent any other Person from accessing, using or otherwise dealing with, the Services or any part thereof (including the Platform and any Aphinia Materials) except as permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as these Terms or as Aphinia otherwise expressly permits in writing:
2.3.1. access, use or otherwise deal with the Services or any part thereof (including the Platform and any Aphinia Materials) except solely for your own non-commercial purposes;
2.3.2. copy, modify or create derivative works or improvements of the Services or any part thereof (including the Platform and any Aphinia Materials);
2.3.3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any part of the Services to any other Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
2.3.4. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform in whole or in part;
2.3.5. bypass or breach any security device or protection used by the Platform or access or use the Services or any part thereof other than through the use of your valid user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services or part thereof.
2.3.6. knowingly input, upload, transmit or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any Viruses;
2.3.7. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or any part thereof (including the Platform and any Aphinia Materials) or Aphinia’s provision of the Services or any part thereof to any third party, in whole or in part;
2.3.8. remove, delete, alter or obscure any trademarks, Aphinia Materials, specifications for the Platform, warranties or disclaimers, or any notices regarding any copyright, trademark, patent or other Intellectual Property Rights or other proprietary rights from the Platform or any Aphinia Materials, including any copy thereof;
2.3.9. access or use the Services or any part thereof (including the Platform and any Aphinia Materials) in any manner that infringes, misappropriates or otherwise violates any Intellectual Property Right or other rights of Aphinia or any third party, or that violates any Applicable Law; or,
2.3.10. access or use the Services or any part thereof (including the Platform and any Aphinia Materials) for purposes of your or any other party’s development, provision or use of a competing software service, product or technology.
2.4. Responsibility for Users; Unauthorized Use. You are solely and fully responsible and liable for any and all activities done through or in connection with any login credentials or passwords associated with your Membership or other access or use of the Services, whether or not done by you or a third party, whether with your permission and/or knowledge or not. For the avoidance of doubt, this includes any and all use or other interactions with the Platform or any Aphinia Materials by any Person acting at your direction or on your behalf in each case as if such Person was your own employee. You shall employ all necessary commercially reasonable administrative, physical, and technical safeguards, consistent with industry-accepted methods and standards, to prevent the unauthorized access, use, and disclosure of the Services, including the Platform and any Aphinia Materials.
3 MEMBERSHIP; MEMBERSHIP FEES.
3.1. Services Are Only For Members. Except where Aphinia has expressly stated that a particular Service is available to non-Members, any use or access to the Services other than access to any part of the Platform or any Aphinia Materials is limited to Members in good standing only.
3.2. Your Membership Application and Other Information Related to your Membership.
3.2.1. You hereby represent, warrant, and covenant that any and all information that you have included in your Membership application or that you have otherwise previously or will in the future provide to Aphinia at any time was at the time of disclosure, and remains currently, true, correct, and without any material omission and you covenant to update that information in the event that it is no longer entirely true, correct and complete. You can always update any information you’ve included in your Membership application or that you have otherwise provided to us by submitting a Membership Information Update Form.
3.2.2. You acknowledge and agree that any login credentials and passwords associated with your Membership or you otherwise have in connection with any of the Services are for your use only. No other Person is permitted to use any of your login credentials or passwords to access or use any of the Services for any reason. You are responsible for maintaining the confidentiality of your personal Membership-related information and other Services-related information, including any login credentials and passwords associated with your Membership and or your access to and use of the Services.
3.3. Term of Membership; Cancelling Your Membership.
3.3.1. Your Membership, and your rights and obligations as a Member, shall continue until your Membership is terminated by either yourself or Aphinia.
3.3.2. You may cancel your Membership at any time by emailing Aphinia at firstname.lastname@example.org with a notice of your Membership cancellation. Unless you tell us otherwise, the cancellation will go into effect as soon as it is processed.
3.11. Changes to Memberships. Aphinia reserves the right to modify or discontinue any type of Membership and/or any required benefits, features and limitations at any time, at its sole discretion, by notifying a Member directly about any such modification or discontinuance or by announcing such modification or discontinuance through the Platform (each, a “Membership Change”). IF YOU DO NOT AGREE TO ANY MEMBERSHIP CHANGE, YOUR SOLE REMEDY IS TO CANCEL YOUR MEMBERSHIP AND TO IMMEDIATELY DISCONTINUE ANY ACCESS TO OR USE OF ANY OF THE SERVICES.
4. CODE OF CONDUCT; EVENTS; INTERACTIVE FEATURES; MEMBER CONTRIBUTIONS.
4.1. Code of Conduct. You agree that your involvement in all Events, all other aspects of the Aphinia community, and all Member Contributions (defined below) that you may make shall adhere to guidelines set out in Aphinia’s Code of Conduct.
4.2. Interactive Features. The Services may include message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, interactive instant messaging channels or groups, interactive real-time audio and/or video conversation platforms, and other interactive features that allow Members to post, submit, publish, display, or transmit to other Members or other Persons (hereinafter, “post“) content or materials on or through the Platform. For the avoidance of doubt, any such interactive features shall be deemed part of the Platform.
4.3. Definition of “Member Contribution.” “Member Contribution” means anything that you express or do (or omit to express or do) in connection with the Aphinia community including in connection with any other Member or other Person accessing or using any of the Services and including your actions (i.e. anything you say or do) at any Event or any content or materials you post, upload to or link to through the Platform.
4.4.1. You own or control all rights in and to all your Member Contributions and have the right to grant the license set forth above to us, our licensees, and our service providers or other vendors, and each of our and their respective licensees, successors, and assigns;
4.4.2. All of your Member Contributions do and will comply with these Terms (including the Code of Conduct); and,
4.4.3. You understand and acknowledge that you are responsible for any Member Contributions you make, submit or contribute, and you, not Aphinia, have full responsibility for any such Member Contribution, including its legality, reliability, accuracy, and appropriateness.
4.5. Enforcement of Terms Regarding Member Contributions. Aphinia has the right to:
4.5.1. Remove from or refuse to post to the Platform any Member Contributions for any or no reason in our sole discretion;
4.5.2. Take any action with respect to any Member Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such Member Contribution violates the Terms, including the Code of Conduct, infringes any Intellectual Property Rights or other rights of any Person, threatens the personal safety of another Member, user of the Services or other Person, or could create any liability for Aphinia; and,
4.5.3. Disclose your identity or other information about you to any third party who claims that any Member Contribution made or posted by you violates their rights, including their Intellectual Property Rights or their right to privacy. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone making or posting any Member Contribution. YOU WAIVE AND HOLD HARMLESS APHINIA, ITS PERSONNEL, LICENSEES, SERVICE PROVIDERS AND OTHER VENDORS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY ANY SUCH PARTY, ANY LAW ENFORCEMENT AGENCY OR OTHER GOVERNMENTAL AUTHORITY.
4.6. No Prior Review of Member Contributions; No Liability. Aphinia does not undertake to review Member Contributions before they are made (whether at an Event or posted on or through any part of the Platform) and cannot ensure prompt removal of any objectionable Member Contribution after it has been made or posted. Accordingly, we assume no liability for any action or inaction regarding any Member Contributions, any violation of the Code of Conduct, or any other transmissions, communications, or content provided by any Member, other user or any third party. We have no liability or responsibility to anyone for the performance or nonperformance of the activities described in this Section by you, any other Member.
4.7. Copyright Infringement. If you believe that any Member Contribution violates your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of Aphinia to terminate the Memberships and other rights to access and use the Services of repeat infringers.
4.8. No Reliance on Information and Materials Shared with You.
4.8.1. You acknowledge and agree that, except where Aphinia expressly states otherwise, any information or materials, including any Aphinia Materials, any Member Contributions made or posted by any other Members or any content provided by another third party, that is presented or shared with you on or through the Services or otherwise in connection with any Aphinia activities is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of any such information or materials. Any reliance you place on such information or materials is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information or materials by you, any other Member or any other Person using or accessing any part of the Services, or by anyone who may be informed of any of their contents.
4.8.2. In addition to the Member Contributions, the Services may include content provided by other third parties, including materials provided by other users, bloggers, journalists, subject-area experts, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in any such materials, and all Member Contributions, other articles and responses to questions and other content, other than content or responses authored by or at the direction of Aphinia itself, are solely the opinions and the responsibility of the Person providing those materials. These materials do not necessarily reflect the opinion of Aphinia. We are not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.
4.9. Linking to the Platform. You may link to our homepage provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
5. THIRD-PARTY PLATFORMS AND SERVICES.
5.1. Aphinia may use certain third-party websites, services or other resources on the Internet to help provide certain Services (for example, a third-party service that allows for online video conversations between Members). In other instances, Aphinia may provide links to third-party websites, services or other resources including our partners and social media networks. Collectively, these third-party websites, services, and other resources are referred to in these Terms as “External Platforms”.
5.2. Any links to any External Platforms or any arrangements between Aphinia and an External Platform to help make certain Services available to you are provided solely as a convenience to you and not as an endorsement by Aphinia of any content on such External Platforms that is not solely provided by or at the direction of Aphinia. We are not responsible for the content of any linked External Platforms and do not make any representations regarding the content or accuracy of any materials on such External Platforms except those that are solely provided by or at the direction of Aphinia. You should take precautions when downloading files from all External Platforms to protect your computer from Viruses. If you decide to access any External Platform, including in connection with accessing or using any Services, you do so at your own risk. You acknowledge and agree that Aphinia shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, technology, goods, products or services available on or through any External Platforms, whether that use or reliance is related to your accessing or using any Services or not.
5.3. In the event that you use any External Platform to access or use any of the Services, you agree to follow all terms, conditions, and notices applicable to accessing or using such External Platform. If you are not willing to accept all of an External Platform’s terms and conditions, you are not permitted to use that External Platform to access or use any of the Services.
6. MAINTENANCE AND AVAILABILITY OF THE SERVICES. Aphinia may take offline or otherwise make unavailable the Services (including any part of the Platform or any Aphinia Materials) or any portion thereof because of any scheduled or emergency maintenance, events of force majeure, malicious attacks on the Platform, issues associated with your computing devices, local area networks or internet service provider connections, internal organizational matters or for any other reasons.
7. MODIFICATIONS TO THE SERVICES. Aphinia reserves the right to add, remove, amend, modify and/or update any part of the Services, including the Platform and the Aphinia Materials, or any component, feature or selection thereof at any time as it sees fit in its sole discretion. Aphinia also reserves the right to charge a separate or additional fee or charge for any part of the Services that was previously provided free of any additional charge at any time.
9. FEEDBACK. You may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to Aphinia regarding all or part of the Services or any other matter or subject related thereto (“Feedback”). All Feedback shall be owned solely by Aphinia (including all Intellectual Property Rights therein and thereto) and, if provided in a private or confidential setting or context, shall also be Aphinia’s Confidential Information. You shall and hereby do make all assignments necessary for Aphinia to achieve such ownership.
10. YOUR OBLIGATIONS WITH REGARDS TO THE PLATFORM. You shall be solely responsible for (a) obtaining and maintaining all computer hardware, software, and communications equipment you need to access the Platform including any Interactive Features and any Aphinia Materials provided on or through the Platform, (b) paying all third-party access, usage or service charges or fees incurred while using the Platform, and (c) implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against Viruses. You shall (i) abide by all Applicable Laws in connection with these Terms and the Platform, (ii) use the Platform or any portion thereof only for those legal purposes permitted herein, and (iii) comply with all regulations, policies, and procedures of any networks and telecommunications providers involved in accessing or using the Platform.
11. CONFIDENTIALITY. “Confidential Information” includes any private or confidential information about Aphinia, the Services or any part thereof, Aphinia’s past, present or future business, operations, products, services, partners, Personnel, vendors, customers or technology, and any agreement, arrangement or understanding that Aphinia and you are both parties to. To the extent that you receive or otherwise obtain any Confidential Information, you shall hold that Confidential Information in confidence, not share or transfer it to any other Person, and use it only as expressly permitted by Aphinia. For the avoidance of doubt, any information that Aphinia shares generally with, or with a large group of, its Members shall be deemed not to be Confidential Information. At any time at which Aphinia so requests, or automatically and immediately in the event that your Membership and/or any other rights you may have to access or use the Services are terminated, you shall return (if tangible copies) or permanently destroy (if digital or otherwise intangible copies) all copies of any Confidential Information you possess or otherwise have control of.
12. REPRESENTATIONS AND WARRANTIES. You represent and warrant that the following is accurate and true as of the date on which you apply for a Membership or, if you have not applied for Membership, the date on which you first use or access any of the Services, and you covenant that the following will remain accurate and true during the entire time you, or others at your direction or on your behalf, access or use any of the Services: (a) you are a natural Person with legal capacity over 18 years of age or you are legal entity properly incorporated, formed or organized (as the case may be) and existing under the laws of the jurisdictions of its incorporation, formation or organization; (b) you have the authority and capacity to enter into the agreement constituted by these Terms; (c) these Terms constitute a legal, valid, and binding obligation, enforceable against you according to its terms; (e) you are not under any restriction or obligation that it would be reasonable to conclude may affect your performance of your obligations under these Terms; and (f) your entry into the agreement constituted by these Terms and your performance of your obligations under these Terms will not breach or result in a default under (i) if you are a legal entity, your charter, articles, bylaws, limited liability company agreement or any other governing document or agreement to which you are subject, (ii) any Applicable Law to which you are subject, or (iii) any agreement to which you are a party or by which you are bound.
13. TERMINATION AND EXPIRATION.
13.1. Aphinia may, in our sole discretion, change, suspend or terminate all or any part of your Membership, your right to use or access all or any part of the Services (including all or any portion of the Platform or the Aphinia Materials), at any time and without prior notice or liability, if you breach these Terms or if Aphinia is unable to continue to offer all or any part of the Services. In the event you cancel your Membership or it is otherwise terminated, regardless of reason, you shall immediately and completely cease any and all accessing or use of the Services.
13.2. Notwithstanding the termination, for any or no reason, of your Membership, the agreement formed between the Parties by these Terms, and/or any other rights you may have to access or use the Services, you acknowledge and agree that Sections 1–11 and 13–18, as well as any other terms that by their nature are intended to survive the termination of your Membership, the agreement formed between the Parties by these Terms and/or any other rights you may have to access or use the Services, shall survive such termination.
14. INDEMNIFICATION. You shall indemnify, defend and hold harmless Aphinia and its Personnel (each such Person, an “Indemnitee”) from and against any and all Claims arising from, related to or otherwise occurring in connection with any actual or alleged (a) violation of these Terms by you or (b) a violation, infringement or misappropriation of any third party’s Intellectual Property Rights, proprietary rights, privacy or personality rights or other rights by you. For the avoidance of doubt, the remedies set forth in this Section are in addition to, not instead of, any other remedies available to an Indemnitee pursuant to these Terms or otherwise available to an Indemnitee under Applicable Law. Aphinia reserves the right to assume the exclusive defense and control (at your sole expense) of any matter that is subject to indemnification under this Section. In such case, you agree to cooperate (at your sole expense) with any reasonable requests assisting our defense of such matter.
15. DISCLAIMERS; LIMITATIONS OF LIABILITY.
15.1. Disclaimer of Warranties. APHINIA AND ITS PERSONNEL MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ERROR-FREE FUNCTIONING, VIRUS-FREE STATUS OR ACCURACY OF THE SERVICES, INCLUDING ANY EVENT, THE PLATFORM, THE APHINIA MATERIALS, OR ANY COMPONENT, FEATURE OR PORTION THEREOF OR ANY INFORMATION OR DATA MADE AVAILABLE FROM ANY OF THEM FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, ANY PORTION THEREOF, AND ANY INFORMATION, DATA OR MATERIALS (INCLUDING BUT NOT LIMITED TO THE APHINIA MATERIALS) MADE AVAILABLE FROM, ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. APHINIA DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, INCLUDING ALL EVENTS, THE PLATFORM, AND THE APHINIA MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT THAT APHINIA MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
15.2. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL APHINIA OR ANY OF ITS PERSONNEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, ARISING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY PART THEREOF, INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. IN THE EVENT THAT APHINIA OR ANY OF ITS PERSONNEL ARE DETERMINED TO HAVE ANY LIABILITY HEREUNDER, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF APHINIA OR ITS PERSONNEL WILL BE LIMITED TO THE LESSER OF TEN THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNT YOU HAVE ACTUALLY PAID TO APHINIA (FOR EXAMPLE, YOUR MEMBERSHIP FEES) IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, APHINIA WOULD NOT PROVIDE YOU WITH A MEMBERSHIP OR MAKE AVAILABLE ANY OF THE SERVICES TO YOU.
15.3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF APHINIA AND ITS PERSONNEL SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTHING IN THESE TERMS SHALL AFFECT ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER ANY LOCAL LAW.
16. AMENDMENTS AND UPDATES. These Terms may be amended, modified, updated or terminated at any time by Aphinia, provided that Aphinia notifies you in advance of any material amendment, modification or update by posting an amended version of the Terms through the Platform (and the date of such posting shall be deemed the date of notification) or by notifying you of such change(s) in accordance with the notification provision included in these Terms. Any such amendment, modification or update shall go into effect on the tenth (10th) business day following the date of such notification (a “Terms Amendment Date”). Any use or accessing of the Services or any part thereof on or following the applicable Terms Amendment Date, except solely to the extent that may be required by you to terminate your Membership, shall be deemed to constitute your acceptance of such amendment, modification or update to these Terms.
17.1. Entire Agreement and Severability. Unless You and Aphinia expressly agree otherwise in writing, these Terms constitute the entire agreement between you and Aphinia with respect to the subject matter hereof and any transactions contemplated herein and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Aphinia with respect to the same. If any provision of these Terms is found to be unenforceable or invalid by a court or arbitrator, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
17.2. Amendment and Modification; Waiver. Unless done pursuant to Section 16, no amendment or update to, modification of or rescission, termination or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of your agreement with Aphinia constituted by these Terms, and is signed by an authorized representative each Party. No waiver by a Party of any of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17.3. Assignment. Neither your Membership, any other rights you have to access or use any of the Services, your agreement with Aphinia as constituted by these Terms or any of your obligations hereunder may be assigned, sublicensed or delegated, in whole or in part, by You without Aphinia’s prior written consent. Aphinia may assign, sublicense, transfer or delegate any of its rights and obligations herein without your consent. These Terms are binding upon and will inure to the benefit of both Parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. Any purported assignment, delegation or transfer in violation of this Section is null and void.
17.4. Relationship of the Parties. The relationship of the Parties is that of an independent contractor, and no agency, partnership, joint venture, or employment is created as a result of these Terms, and neither Party has any authority of any kind to bind the other Party in any respect.
17.5. Third-party Beneficiaries. The Parties agree that any Event Releasee and any Authorized Party shall be a third-party beneficiary of Section 3 and any Indemnitee shall be a third-party beneficiary of Section 14. Otherwise, these Terms are for the sole benefit of the Parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
17.6. Governing Law. These Terms, the rights, authorizations, and licenses granted hereunder or any of the transactions contemplated herein, any access or use of any of the Services by you or for which you shall be responsible for as stated herein shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
17.7. ARBITRATION CLAUSE & CLASS ACTION WAIVER.
17.7.1. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND APHINIA (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH APHINIA, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, THE RIGHTS, AUTHORIZATIONS, AND LICENSES GRANTED HEREUNDER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, ANY ACCESS OR USE OF THE SERVICES, INCLUDING THE PLATFORM, ANY EVENTS, AND THE APHINIA MATERIALS, BY YOU OR FOR WHICH YOU SHALL BE RESPONSIBLE AS STATED HEREIN, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND APHINIA HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE APHINIA’S INTELLECTUAL PROPERTY RIGHTS, APHINIA MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND APHINIA WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
17.7.2. As an alternative, you may bring your Claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring Claims only on your own behalf. Neither you nor Aphinia will participate in a class action or class-wide arbitration for any Claims covered by this agreement to arbitrate.
17.7.3. YOU AGREE THAT YOU ARE HEREBY GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST APHINIA INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in Claims brought in a private attorney general or representative capacity, or consolidated Claims involving another Person’s Membership, the Services (including their access to or use of the Services or any part thereof) or any other matter to Aphinia if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of Applicable Law notwithstanding, the arbitrator will not have the authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any Applicable Law to the contrary, any Claim arising out of, related to or connected with your Membership or your access to or use of the Services or any component thereof (including any matters related to your Membership Fees) or these Terms must be filed within one (1) year after such Claim arose or be forever banned.
17.7.4. If the prohibition against class actions and other Claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 7 will be null and void. This agreement to arbitration will survive the termination of your relationship with us.
17.8. Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of the terms and conditions set forth in Sections 3 or 11 might cause Aphinia irreparable harm for which monetary damages might not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Aphinia will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available to Aphinia at law, in equity or otherwise.
17.9. Headings; Construction. Any section, subsection, and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
17.10.1. When you use the Platform or send communications to us through the Platform, you are communicating with us electronically. You consent to receive electronically any notices or other communications related to these Terms, any agreement between the Parties or the Services. Aphinia may communicate with you by email or by posting notices on the Platform. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from Aphinia intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us.
17.10.2. Any day-to-day communications from you to Aphinia regarding your Membership and/or your access to or use of the Services may be sent to email@example.com. Any other communications or notices, including any notice that Aphinia has breached these Terms, must be sent by personal delivery, nationally recognized courier or certified or registered mail (in each case, return receipt requested, postage prepaid) to Aphinia, Inc., 302 W 12th St, #14A, New York, NY 10014. Except as otherwise provided in these Terms, any communication or notice is effective only (a) on receipt by the receiving Party, and (b) only if the Party giving providing such communication or notice has complied with the requirements of this Section.
17.11. Force Majeure. Aphinia shall not be liable under these Terms for performance delays or for non-performance due to causes beyond its reasonable control.
17.12. Contacting Aphinia. Subject to Section 10, you may contact Aphinia about any matter by emailing us at firstname.lastname@example.org or by mail at Aphinia, Inc., 1623 3rd Ave, 5H, New York, NY 101028
18. ADDITIONAL DEFINITIONS; INTERPRETATION.
18.1. Additional Definitions. In addition to those capitalized terms defined elsewhere in these Terms, the terms below have the following meanings:
“Applicable Law” means any law (including common law), statute, regulation, ordinance, rule, guideline, directive, requirement, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any federal, state, provincial, local or foreign government, or any subdivision, agency, department, board, commission, instrumentality or authority of any thereof, including any court.
“Claim” means any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, including claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy, violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world.
“Event” means an event of any kind operated on and/or at the direction of Aphinia or which Aphinia has otherwise indicated shall be an event that Members can attend as a benefit of their Memberships. Events can be in-person, online, by telephone, videoconference, or otherwise or can be any combination of such means, methods, and formats.
“Governmental Authority” means any federal, state, local, or foreign (a) any federal, state, local, or foreign government, and any political subdivision of any of them, (b) agency or instrumentality of any such government or political subdivision, (c) self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), or (d) arbitrator, court or tribunal of competent jurisdiction.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (b) copyrights, including all applications and registrations related to the foregoing, (c) trade secrets and confidential know-how, (d) patents and patent applications, (e) websites and internet domain name registrations, and (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to Intellectual Property including any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Person” means (a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and (b) any individual.
“Personnel” means, in connection with a Party, the employees, officers, directors, managers, managing members, agents, subcontractors, vendors, equity holders, legal and financial representatives of such Party.
“Platform” means, collectively, Aphinia’s website located at www.aphinia.com and each other Aphinia website, mobile site, service, application, online platform or tool, any third-party platform, service or tool that Aphinia uses to provide any functionality to its Members or other users of the Services, any other part of Aphinia’s information technology infrastructure, including computers, software, hardware, architecture, and related systems, databases, electronic systems (including database management systems) and networks (and including code related thereto), if any, whether operated directly by Aphinia or through the use of third-party services, as well as any new versions, updates, revisions, improvements and modifications of any part of the Platform.
“Aphinia Materials” means any content, data or information of any kind (audio, video, digital, oral, written or otherwise) manuals, instructions or other documents or materials that Aphinia provides or makes available to you in any form or medium in connection with the Services or that is otherwise related to Aphinia, its business, Personnel, Members. For the avoidance of doubt, “Aphinia Materials” shall also include anything which describes the functionality, components, features or requirements of the Platform, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of any component thereof.
“Viruses” means any computer infections, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties or that otherwise prevents Aphinia, any of its Personnel, anyone acting on Aphinia’s direction, any Member or any other user of any of the Services to access or use all or any part of the Services.
18.2. Interpretation. When a reference is made in these Terms to a Section, such reference shall be to a Section of these Terms unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in these Terms, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in these Terms shall refer to these Terms as a whole and not to any particular provision of these Terms. The definitions contained in these Terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.