- 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.
- 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.
- 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.
- 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:
- May link to, but not replicate, our content;
- May not create a browser, border environment or frame our content;
- May not imply that we are endorsing it or its products;
- Should not misrepresent its relationship with us;
- Should not present false information about our products or services; and
- 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.
- Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
- Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
- Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Site, except as expressly permitted by us or our licensors;
- Modify our Site, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Site;
- 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;
- 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;
- 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;
- Develop or use any applications or software that interact with our Site without our prior written consent;
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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 1301 South Mopac Expressway, Suite LL25, 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.
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.
- 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 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.
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, 1301 South Mopac Expressway, Suite LL25, Austin, TX 78746. If you do, the most recent version of Section 18 before the change you rejected will apply.