Terms of Service
Because we all gotta know.
Because we all gotta know.
Welcome, and thank you for your interest in AriAscend Corporation (“AriAscend,” “we,” or “us”) and our web site at www.ariascend.com (the “Site”), and our related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), Device (as defined below), and other services provided by us and on which a link to these Terms of Service is displayed (together with the Site, our “Service”). These Terms of Service are a legally binding contract between you and AriAscend regarding your use of the Service.
These Terms provide that all disputes between you and AriAscend will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with AriAscend.
THE SERVICE IS NOT INTENDED TO FULFILL THE “DETECT AND AVOID” COLLISION AVOIDANCE FUNCTIONALITY RULES OF CHAPTER 14 OF THE UNITED STATES CODE OF FEDERAL REGULATIONS OR ANY OTHER LAW APPLICABLE TO THE OPERATION OF UNMANNED AIRCRAFT IN ANY JURISDICTION. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU COMPLY WITH ALL APPLICABLE LEGAL REQUIREMENTS FOR THE OPERATION OF ANY AIRCRAFT, INCLUDING ANY REQUIREMENT THAT YOU DETECT AND AVOID OTHER AIRCRAFT. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
1. AriAscend Services Overview
AriAscend provides agricultural services using unmanned aerial devices (“Drones”) to agricultural customers (“Customers”). AriAscend trains or certifies Drone operators (“Operators”) and ensures that they have the appropriate licenses and insurance. AriAscend connects Customers and Operators via a web-based platform to schedule aerial surveys of agricultural crops. Operators then conduct aerial surveys using Drones and data is transmitted to AriAscend. AriAscend then processes the data and provides Customers with the resulting data and analysis.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; (c) you are not a member of any military or armed forces organization; (d) you have not previously been convicted of a crime or violated any FAA or other aviation regulation; and (e) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Accounts and Registration
In order to use the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@AriAscend.com.
4. Payment and Cancellation
Access to the Service may require you to pay our automatically recurring monthly access fees. Access to certain features of the Service may require you to pay additional fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. If AriAscend changes the fees for the Service, including by adding additional fees or charges, AriAscend will provide you advance notice of those changes. If you do not accept the changes, AriAscend has the right to discontinue providing the Service to you. AriAscend will charge the payment method you specify at the time of purchase. You authorize AriAscend to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, AriAscend may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize AriAscend to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums.
4.2 Cancellation of Automatic Payments
To cancel recurring automatic payment and terminate your subscription, AriAscend must receive your cancellation by email to support@AriAscend.com at least ten business days before the beginning of your new billing cycle (which may not be at the end of a calendar month). If we receive your cancellation notice within 10 business days before the beginning of the new billing cycle, Drone Deploy will charge you for the next billing cycle and cancel your subscription at the end of that billing cycle. Subject to these Terms, you will continue to have access to the Service during that period.
Subject to your payment of all applicable fees and approval of your order, we will provide you with the number of Drones that you order via the Site. AriAscend may accept or reject all orders for any or no reason, including for failure to meet the eligibility criteria set forth in Section 2. You must properly install and set up the Drone and communication devices before you can use the Service with that Drone. AriAscend may remotely disable a Device without liability to you, for instance to enforce the provisions of these Terms or to prevent activity that is dangerous or otherwise harmful to AriAscend or others, in AriAscend’s sole discretion.
5.1 Your Responsibilities
You are responsible for obtaining and maintaining all hardware and other communications equipment needed to access or utilize the Services, including Drones. You will ensure that: (a) each Drone will only be used in a careful and proper manner and in accordance with all written instructions made available by us (“Device Documentation”); (b) each Drone will be used and maintained with due care and will not be defaced, modified, or used or operated in any illegal manner or for any illegal purpose in violation of any applicable international or U.S. federal, state, or local law or regulation; (c) any regulatory or certification markers affixed to a Device will not be removed, defaced, or otherwise obstructed; and (d) each Device will only be repaired subject to AriAscend’s express written authorization and in accordance with AriAscend’s instructions and requirements.
6. Software License
All software made available to you by AriAscend (including hosted software, firmware or other software on Devices, and any downloadable software) (the “Software”) is licensed and is not sold. Unless we provide specific different terms with any particular Software, all Software that you are permitted to use is provided to you subject to a limited, individual, revocable, non-exclusive, non-transferrable, and non-assignable personal license to use the Software to use the Service in accordance with these Terms. If you do not use the Software in accordance with these Terms, you do not have a license to any Software, and any license that was previously granted to you is automatically revoked. The Software license is granted subject to your compliance with the following prohibitions, and you agree not to: (a) grant any third-party any right in or to the Software except as permitted by Third Party Terms (defined below); (b) modify, reverse-engineer, disassemble, or attempt to derive any Software source code, except to the extent that we may not restrict this activity under applicable law or Third Party Terms; or (c) resell, distribute, transfer, rent, loan, or otherwise provide anyone access to any portion of the Software, Device, or Service. We may update the Software automatically, and you agree that we may update the Software.
7. Open Source and Other Third Party Software
The Software may contain or be accompanied by software code provided by third parties (“Third Party Software”) that is subject to separate license terms (the “Third Party Terms”), and not any license contained in the Terms. Your use of the Third Party Software in conjunction with the Service in a manner consistent with the Terms is permitted. However, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third Party Software. You can find certain required notices and other information regarding Third Party Software here.
8. User Content
8.1 User Content Generally
Certain features of the Service may permit users to generate or post content, including messages, reviews, photos, video, images, maps, models, folders, data, text, and other types of works, including photographs, images, and data gathered by a Drone or Device, (collectively, “User Content”). Users may publicly post their User Content on the Service, including through discussion forums or shared maps. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to AriAscend
By using the Service, you grant AriAscend a non-exclusive, fully paid and royalty-free, transferable, sublicensable, worldwide license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your User Content: (a) to provide to you the features of the Service that you select; and (b) for AriAscend’s internal business purposes, including operating, managing, maintaining, and improving AriAscend’s products and services.
8.3 Limited License Grant to Other Users
By publicly sharing User Content, you hereby grant to other users of the Service a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
8.5 User Content Disclaimer
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. AriAscend may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Drone Deploy with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, AriAscend does not permit copyright-infringing activities on the Service.
9. Digital Millennium Copyright Act
9.1 DMCA Notification
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
PO Box 5046
Salem, OR 97304
9.2 Repeat Infringers
AriAscend will promptly terminate without notice the accounts of users that are determined by AriAscend to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
10. Your Responsibilities
10.1 Your Responsibilities Generally
You must at all times comply with all applicable local, state, national, and international laws and regulations related to the operation of unmanned aerial devices and your use of the Service in your territory of operation, including any applicable laws with regard to privacy. You will obtain and maintain all necessary licenses, consent, and authorizations of any kind.
10.2 Your Privacy Responsibilities
You understand that by using the Service, you are given access to drone imagery for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You are solely responsible for your own User Content and the consequences of posting your User Content on the Service, including your use of the Service that results in a violation of any individual’s or organization’s privacy rights.
11. Prohibited Conduct
IN USING THE SERVICE YOU AGREE NOT TO:
12. Third-Party Services
AriAscend may provide tools through the Service that enable you to export information, including data, to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information.
13. Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, AriAscend may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service, except that if we terminate these Terms and your account for our convenience, we will provide you a pro-rata refund of prepaid subscription fees. You may terminate your account at any time by contacting customer service at support@AriAscend.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
By using the Service, you grant to AriAscend a worldwide, perpetual, irrevocable, non-exclusive, royalty-free right and license (with the right to sublicense) to use and disclose, in an aggregated or anonymized format, any and all data that is derived or collected from your use of the Service, including your User Content, without any compensation to you, including for the purpose of generally improving the Service and to otherwise operate, manage, maintain, improve, or promote AriAscend’s products and services.
14.3 Additional Terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 15. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
15. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
16. Ownership; Proprietary Rights
The Service, including intellectual property rights in Drones but not individual units of Drones provided to you, is owned and operated by AriAscend. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by AriAscend are protected by intellectual property and other laws. All Materials contained in the Service are the property of AriAscend or our third-party licensors. Except as expressly authorized by AriAscend, you may not make use of the Materials. AriAscend reserves all rights to the Materials not granted expressly in these Terms. In addition, we will own any and all right, title, and interest in and to any feedback, suggestions, information, or materials you convey to us related to the Service in connection with your use of the Service (“Feedback”). You hereby assign to AriAscend all right, title, and interest in such Feedback and will execute any documents and take any additional actions AriAscend deems necessary to evidence, record, or perfect the foregoing assignment.
You agree that you will be responsible for your use of the Service, including any personal injury, destruction of property, or violation of law that arises from your use of the Service, and you agree to defend and indemnify AriAscend and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “AriAscend Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
18. Notice Regarding Apple
If you download Software from Apple, Inc.’s App Store, your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. You acknowledge that these Terms are entered into solely between you and Second Avenue, and Apple is not responsible for the Service or its content. These Terms are not intended to provide for usage rules for the Service that are less restrictive than the Usage Rules set forth for Licensed Applications in, or that otherwise conflict with, the App Store Terms of Service as of the date that you accept the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that: (a) if any third party claims that your possession or use of the Software infringes a third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; (b) Apple has no responsibility for addressing any claims relating to the Software, including: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; (c) Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you; and (d) in the event of any failure of the Licensed Application to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Licensed Application to you, but Apple will have no other warranty obligation with respect to the Licensed Application. You further represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THSE TERMS WITH RESPECT TO DEVICES, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ARIASCEND ENTITIES DISCLAIM ALL WARRANTIES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; (C) ANY WARRANTY THAT THE USE OF THE SERVICE CONSITUTES COMPLIANCE WITH THE “VISUAL OBSERVER” RULES OF THE UAS INTERIM OPERATIONAL APPROVAL GUIDENCE OR SIMILAR RULES OR POLICIES, OR THAT THE SERVICE WILL IN ANY WAY FULFILL THE “DETECT AND AVOID” COLLISION AVOIDANCE FUNCTIONALITY RULES CHAPTER 14 OF THE UNITED STATES CODE OF FEDERAL REGULATIONS OR ANY OTHER LAW APPLICABLE TO THE OPERATION OF UNMANNED AIRCRAFT IN ANY JURISDICTION; AND (D) ANY WARRANTY THAT THE DEVICE WILL REMAIN CONNECTED TO THE SERVICE OR THAT DATA WILL BE COMPLETELY OR ACCURATELY TRANSMITTED FROM THE DEVICE TO THE SERVICE. THE ARIASCEND ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ARIASCEND ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. FOR EXAMPLE, THE SERVICE MAY INCLUDE A PRE-FLIGHT CHECK FEATURE THAT PROVIDES INFORMATION ON WHETHER THE DRONE PASSES CERTAIN DIAGNOSTIC TESTS. HOWEVER, THE RESULTS OF THE PRE-FLIGHT CHECK MAY NOT BE COMPLETE OR ACCURATE. NO INFORMATION PROVIDED IN CONNECTION WITH A PRE-FLIGHT CHECK WILL BE DEEMED A REPRESENTATION OR WARRANTY, FOR INSTANCE THAT THAT THE DRONE IS AIRWORTHY OR IS OTHERWISE SAFE TO FLY, AND WE DISCLAIM ANY LIABILITY ARISING FROM YOUR RELIANCE ON ANY PRE-FLIGHT CHECK.
YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR DRONES, COMPUTER SYSTEM, OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability
IN NO EVENT WILL THE ARIASCEND ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ARIASCEND ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE, INCLUDING DAMAGES RELATED TO PERSONAL INJURY, DESTRUCTION OF PROPERTY, OR VIOLATION OF LAW.
EXCEPT AS OTHERWISE SET FORTH IN SECTION 23.4, THE AGGREGATE LIABILITY OF THE ARIASCEND ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNT YOU HAVE PAID TO ARIASCEND FOR DEVICES AND ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Governing Law
These Terms are governed by the laws of the State of Oregon without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and AriAscend agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Multnomah County, Oregon for the purpose of litigating any dispute. We operate the Service from our offices in Oregon, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
23. Dispute Resolution and Arbitration
23. 1 Generally
In the interest of resolving disputes between you and AriAscend in the most expedient and cost effective manner, you and AriAscend agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AriAscend ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 22.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and AriAscend will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AriAscend.
23.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). AriAscend’s address for Notice is: AriAscend Corporation, PO Box 5046, Salem, Oregon 97304. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or AriAscend may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AriAscend must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, AriAscend will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AriAscend in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Terms, AriAscend will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Polk County, Oregon, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AriAscend for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.6 No Class Actions
YOU AND AriAscend AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AriAscend agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If AriAscend makes any future change to this arbitration provision (other than a change to AriAscend’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to AriAscend’s address for Notice, in which case your account with AriAscend will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
If Section 23.6 is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to these Terms.
24. Force Majeure
AriAscend will not be liable for any failure or delay in the availability of the Service or any other performance of its obligations under these Terms on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond AriAscend’s reasonable control, including any failure of wireless cellular services provided by any third party in connection with your use of the Service.
The Service, Software, Firmware, and Devices may be subject to U.S. export and re-export control laws and regulations, including the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations (ITAR) maintained by the Department of State. Additionally, Service, Software, and Device may be subject to foreign export controls. You agree to comply with all applicable export and re-export control laws and regulations, including both U.S. and foreign controls. Specifically, you warrant that you are: (a) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (b) not a denied party as specified in the regulations listed above. You also covenant that you will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from AriAscend to any destination, entity, or person prohibited by the laws or regulations of the United States or any other country from which the product is exported, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
26. Consent to Electronic Communications
27. Contact Information
The Service is offered by AriAscend, PO Box 5046, Salem, OR 97304. You may contact us by sending correspondence to that address or by emailing us at email@example.com.