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Website Terms of Use

Date: August 2, 2023

The following terms and conditions (“Website Terms of Use”) apply to your access and use of the website located at https://www.activtrak.com (or any successor links) and all associated web pages, websites, and social media pages (“Site”). By accessing or using this Site, you agree to these Website Terms of Use, including the Acceptable Use Policy, together which shall constitute a legally binding agreement between you and Birch Grove Software, Inc. dba ActivTrak (“ActivTrak”, “we”, “our”, or “us”). You should review these Website Terms of Use regularly as they may change at any time at our sole discretion. If you do not agree to any term or condition, you should not access or otherwise use this Site. In connection with your use of and/or access to Content contained in certain areas of this Site, it may be necessary for you to consent to policies or other terms and conditions in addition to the Terms set forth herein.

BY AGREEING TO THESE WEBSITE TERMS OF USE, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 18, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND ACTIVTRAK WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL.

  1. We Provide Our Website For Your Convenience Only Our Site is provided to you without charge as a convenience and for your information only. The Site, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by ActivTrak or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Website Terms of Use, all rights in and to the Site, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Website Terms of Use you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Site for internal use. Any use of the Site other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
  2. Accounts You may designate authorized individuals to use our Site (“Users”). Users may create accounts in order to use our Site. You will ensure that users: (a) do not share their account credentials, (b) provide accurate account information and promptly update this information if it changes, and (c) use a strong password for their account that is unique to our Site and not used in any other website or online service. You will maintain the security of any accounts created by your Users. If you discover or suspect that someone has accessed the account of one of your Users without permission, you will promptly notify us. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.
  3. We Provide Our Website “As Is” and Disclaim All Warranties YOUR USE OF OUR SITE AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH IS AT YOUR SOLE RISK. OUR SITE, INCLUDING ALL CONTENT, SOFTWARE AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OUR SITE, IS PROVIDED “AS AVAILABLE” AND ON AN “AS IS, WHERE IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND ANY SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE CONTENT, SOFTWARE OR FUNCTIONS ACCESSED THROUGH OUR SITE, FOR ANY PRODUCTS OR SERVICES OR LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH OUR SITE OR ANY LINKED SITE. WE AND ANY SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, QUIET ENJOYMENT, QUALITY OF INFORMATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA OR PROFIT ARISING OUT OF THE USE OR THE INABILITY TO USE THE CONTENT OF THIS WEBSITE, EVEN IF ONE OF OUR REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF YOUR DAMAGES. WE DO NOT WARRANT THAT ANY CONTENT, SOFTWARE OR THE FUNCTIONS ACCESSED THROUGH OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT YOUR ACCESS WILL BE UNINTERRUPTED. WE AND ANY SUBSIDIARIES AND AFFILIATES WILL NOT BE LIABLE FOR DIRECT, INDIRECT, PUNITIVE OR SPECIAL DAMAGES RELATED TO YOUR USE OF THE SITE. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND ANY CONTENT PROVIDED THEREIN OR THEREWITH. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE WEBSITE TERMS OF USE) ARE MADE FOR THE BENEFIT OF ACTIVTRAK, AND ACTIVTRAK’S RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  4. We Do Not Have Responsibility For Links To Third Party Content Our Site may interoperate with third-party products and services, including, without limitation, hyperlinks or pointers to other websites maintained by third parties or third party content on our Site by framing or other methods. The links to third party websites are provided for your convenience and information only. The content in any linked websites is not under our control so we are not responsible for the content, including any further links in a third party site. If you decide to access any of the third party sites linked to our website, you do this entirely at your own risk. It is up to you to take precautions to ensure that the third party you link to for your use is free of computer viruses, worms, trojan horses and other items of a destructive nature.
  5. If We Provide a Link, We Do Not Necessarily Endorse a Third Party We reserve the right to terminate a link to a third party website at any time. The fact that we provide a link to a third party website does not mean that we endorse, adopt, authorize or sponsor that website. It also does not mean that we are affiliated with the third party website’s owners or sponsors.
  6. If a Third Party Links to Our Site, It Is Not an Endorsement If a third party links to our Site, it is not necessarily an indication of an endorsement, adoption, authorization, sponsorship, affiliation, joint venture or partnership by or with us. In most cases, we are not aware that a third party has linked to our Site. A website that links to our Site:
    1. May link to, but not replicate, our content;
    2. May not create a browser, border environment or frame our content;
    3. May not imply that we are endorsing it or its products;
    4. Should not misrepresent its relationship with us;
    5. Should not present false information about our products or services; and
    6. Should not contain content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for all age groups.
  7. If You Transmit or Provide Data or Content to Us, It Is Non-Confidential We do not want to receive confidential or proprietary information from you through our Site. If you transmit to or post on our Site any material, data, information, content or idea by any means (“User Information”), it will be treated as non-confidential and non-proprietary and ActivTrak shall be free to reproduce, publish, or otherwise use such information for any purposes whatsoever including, without limitation, the research, development, manufacture, use or sale of products incorporating such information. You retain all rights in and to your User Information, excluding any portion of the Services included in or associated with your User Information. You hereby grant us a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Information and any name, username or likeness provided in connection with your User Information in all media formats and channels now known or later developed without compensation of any kind to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Information that you may have under any applicable law or under any legal theory. The sender of any User Information to ActivTrak is fully responsible for such User Information, including its truthfulness, accuracy, and its non-infringement of any other person, organization, or entity’s proprietary rights. Personal data provided to us will be handled in accordance with our Privacy Policy.
  8. Your Prohibited Conduct You will not use our Site if you are not eligible to use our Site in accordance with these Website Terms of Use and will not use our Site other than for their intended purpose. Further, you will not, in connection with our Site:
    1. Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
    2. Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
    3. Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Site, except as expressly permitted by us or our licensors;
    4. Modify our Site, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Site;
    5. Use our Site in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Site or that could damage, disable, overburden, or impair the functioning of our Site in any manner;
    6. Reverse engineer any aspect of our Site or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Site;
    7. Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Site except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that ActivTrak grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. ActivTrak reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
    8. Develop or use any applications or software that interact with our Site without our prior written consent;
    9. Use our Site for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Website Terms of Use.

    Enforcement of this Section 6 is solely at our discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances

  9. By Providing Content, We Do Not Allow You to Use Our Trademarks The trademarks, service marks, trade names and logos used and displayed on our Site are our registered and unregistered trademarks. Nothing on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, without our written permission. We aggressively enforce our intellectual property rights. The name “ActivTrak”, our logo, and our product names may not be used in any way, including in advertising or publicity pertaining to distribution of materials on our Site, without prior written permission. You may not use any metatags or any other “hidden text” utilizing ActivTrak’s name or trademarks without the express written consent of ActivTrak. You are not authorized to use our logo as a hyperlink to our Site unless you obtain our written permission in advance.
    ALL OTHER TRADEMARKS, SERVICE MARKS, AND TRADE NAMES ARE THE PROPERTY OF THEIR RESPECTIVE COMPANIES. ACTIVTRAK DISAVOWS ANY PROPRIETARY INTEREST OR CLAIMS IN THE MARKS OF OTHER COMPANIES OR CORPORATIONS.
  10. Feedback You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about us or our Site (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to improve or develop new products, services, or the Site in our sole discretion. We will exclusively own all improvements to, or new, our products, services, or Site based on any Feedback. You understand that we may treat Feedback as nonconfidential.
  11. All Content on Our Website Is Copyrighted All content included on this Site, including any materials, documents, text, designs, graphics, logos, images, audio and video (“Content”) is the property of ActivTrak or its affiliates and suppliers, and is protected by United States and international copyright laws. The compilation of all Content on this Site is the exclusive property of ActivTrak and protected by U.S. and international copyright laws. You may not inline, frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) without our prior express written permission.
  12. You Must Obey Local Laws in Accessing Our Site This Site is controlled by us from our offices within the United States of America. We make no representation that content or materials on the Site are appropriate or available for use in other jurisdictions. Access to our Site content or materials from jurisdictions where such access is illegal is prohibited. If you choose to access this Site from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. We are not responsible for any violations of law. You may not use or export the materials on this Site in violation of U.S. export laws and regulations. Any claims relating to our Site and its content and materials shall be governed by the laws of the State of Massachusetts without giving effect to any principles of conflicts of laws.
  13. You Are Bound by Changes in these Website Terms of Use We may at any time revise these Website Terms of Use by updating this posting. By using our Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Website Terms of Use to which you are bound. Certain provisions of these Website Terms of Use may be superseded by other legal notices or terms located on parts of our Site.
  14. You Agree to Indemnify Us for Using Our Site To the fullest extent permitted by applicable law you hereby jointly and severally agree to indemnify, defend, and hold us and our suppliers or affiliates, and any of our or their respective officers, directors, owners, agents, employees, information providers, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all actions, losses, liabilities, claims, demands, damages, expenses, and costs (“Actions”), including, without limitation, attorneys’ fees and costs incurred by the Indemnified Parties in connection with your use of our Site, your User Information or Feedback, or any breach by you of these Website Terms of Use. If the indemnity provided in this paragraph is not available or is insufficient to hold harmless the Indemnified Parties for any reason, you agree to contribute to the aggregate losses, claims and liabilities to which the Indemnified Parties may be subject in such proportion as appropriate to reflect the relative fault by you and the Indemnified Parties with respect to the activity giving rise to the indemnity claim. You will cooperate as fully as reasonably required in the defense of any claim. You will promptly notify us of any Actions, cooperate with us in defending such Actions, and pay all fees, costs, and expenses associated with defending such Actions (including attorneys’ fees). This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and us. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you will not in any event settle any such matter without our written consent.
  15. Limitation of Liability To the fullest extent permitted by applicable law, we do not assume any liability for these matters under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if we have been advised of the possibility of such damages. In other words, you use our Site at your own risk. Under no circumstances, including, but not limited to, negligence, will we be liable for any direct or indirect, special, incidental or consequential damages. This includes loss of data or profit arising out of the use or the inability to use the content of this Site, even if one of our representatives has been advised of the possibility of your damages. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
  16. Release To the fullest extent permitted by applicable law, you release us from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
  17. Third Parties May Have Rights Under This Agreement Some of the provisions of this agreement are for the benefit of ActivTrak and its affiliates, officers, directors, employees, agents, licensors and suppliers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
  18. Dispute Resolution; Binding Arbitration PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND ACTIVTRAK TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND ACTIVTRAK FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND ACTIVTRAK AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING ACTIVTRAK AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
    For any dispute or claim that you have against us, that we has against you, or that you have or ActivTrak has arising from or relating to these Website Terms of Use, our Site, or any aspect of the relationship between you and ActivTrak as relates to these Website Terms of Use, our Site, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and ActivTrak agree to attempt to first resolve the Claim informally via the following process:

    • If you assert a Claim against ActivTrak, you will first contact ActivTrak by sending a written notice of your Claim (“Claimant Notice”) to ActivTrak by certified mail addressed to 1501 South MoPac Expressway, Suite 155, Austin, TX 78746 or by email to [email protected]. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
    • If ActivTrak asserts a Claim against you, ActivTrak will first contact you by sending a written notice of ActivTrak’s Claim (“ActivTrak Notice”), and each of a Claimant Notice and ActivTrak Notice, (a “Notice”) to you via email to the primary email address associated with your account. The ActivTrak Notice must (i) include the name of a ActivTrak contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
    • If you and ActivTrak cannot reach an agreement to resolve the Claim within thirty (30) days after you or ActivTrak receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or ActivTrak first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.

    Except for individual disputes that qualify for small claims court, all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that are not resolved in accordance with this Section 18 will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

    These Website Terms of Use affect interstate commerce, and the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Website Terms of Use, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.

    All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA.

    If you are a “Business” the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Website Terms of Use as follows, will apply to any arbitration between you and ActivTrak:

    • YOU AND ACTIVTRAK AGREE THAT ANY ARBITRATION UNDER THESE WEBSITE TERMS OF USE WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND ACTIVTRAK ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against ActivTrak or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
    • Any in-person appearances will be held in the County of Travis, Texas.
    • You and ActivTrak agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and ActivTrak agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
    • The arbitrator’s decision will follow these Website Terms of Use and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Website Terms of Use, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Website Terms of Use will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
    • The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against ActivTrak or against you by the same or coordinated counsel or are otherwise coordinated.
      • In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and ActivTrak understand and agree that when twenty-five (25) or more similar claims are asserted against ActivTrak or you by the same or coordinated counsel or are otherwise coordinated resolution of your or ActivTrak’s Claim might be delayed.
      • For such coordinated actions, you and ActivTrak also agree to the following coordinated bellwether process. Counsel for claimants and counsel for ActivTrak shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
      • A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
      • This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
      • The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or ActivTrak’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
      • A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against ActivTrak or you.

    To the extent permitted by law, any Claim by you or ActivTrak relating in any way to these Website Terms of Use, our Site, or any aspect of the relationship between you and ActivTrak as relates to these Website Terms of Use or our Site, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and ActivTrak will not have the right to assert the Claim.

    You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Website Terms of Use by providing us with notice of your decision to opt-out via email at [email protected] or by certified mail addressed to Legal, 1501 South MoPac Expressway, Suite 155, Austin, TX 78746. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 20.

    You may reject any change we make to Section 18 (except address changes) by personally signing and sending us notice within 30 days of the change via email at [email protected] or by certified mail addressed to Legal, 1501 South MoPac Expressway, Suite 155, Austin, TX 78746. If you do, the most recent version of Section 18 before the change you rejected will apply.

    If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Website Terms of Use; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.

  19. How This Agreement May Be Terminated This agreement may be terminated by either party without notice at any time for any reason; provided that you may no longer use our Site after you have terminated this agreement. Provisions 3, 4, 5, 6, 7, 10,11, 14, 15, 16, 18, 19, and 20 of these Website Terms of Use shall survive any termination.
  20. Governing Law These Website Terms of Use shall be construed in accordance with the laws of the State of Texas without regard to its conflict of laws rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Website Terms of Use or your use of this Site shall be filed only in the state or federal courts located in the State of Texas, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
  21. Miscellaneous Our failure to insist upon or enforce strict performance of any provision of these Website Terms of Use shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Website Terms of Use. We may change, suspend or discontinue any aspect of our Site or service at any time. ActivTrak reserves the right to change system configurations, product specifications, upgrades, pricing, layouts, options and any other specifications at any time without notice. We may also impose limits or restrictions on certain services, features or content or restrict your access to parts or all of our Site without notice or liability. We welcome your questions and comments regarding these Website Terms of Use and anything else on this Site. Please email us at [email protected].
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