Terms of Service

EFFECTIVE DATE: JANUARY 1, 2024

Epigenetic Data Sciences, Inc. (“EDS,” “we,” “our”), creators of VivoTrackAI, offers a variety of productivity, collaboration, and organizational tools available online, including via a mobile application (collectively, the “Service”), and websites, including but not limited to www.epigeneticds.com, www.vivotrackai.com, vtaiapp.com and subdomains (the “Websites”) to you, your organization, and/or employer (collectively, the “Customer”).

EDS has three different types of users depending on the EDS products used:

  • We call users of our Websites “Site Visitors.”
  • We call users who use the free version of the Service “Free Users.” While Free Users can access and use the Service, they may have access to a more limited set of Service features and functionality for a more limited timeframe than Subscribers.
  • We call users who use the Service as part of a paid subscription plan for our Service (regardless of the subscription tier) “Subscribers.”

We refer to these three types of users collectively as “Users” or “you” for purposes of these User Terms of Service (the “Terms”). Regardless of what type of User you are, these Terms create a legal agreement directly between you and EDS and explain the rules governing use of the Service and Websites. By accessing or using the Service and Websites, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms and our Privacy Policy. If you do not agree to these Terms, please do not access or use the Service and Websites.

IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SERVICE AND WEBSITES PROVIDED BY EDS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.

We may, from time to time, modify these Terms. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Service and Websites. The updated Terms will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Service and Websites after any such update constitutes your acceptance of such changes.

1. ELIGIBILITY AND SCOPE

General. To use the Service and Websites you must be, and represent and warrant that you are, at least 18 years of age and competent to agree to these Terms. If EDS has previously prohibited you from accessing or using the Service and Websites, you are not permitted to access or use the Service and Websites.

2. ACCOUNT REGISTRATION AND USE
  1. Account Registration and Confidentiality. To access the Service and Websites, you must register for an EDS account by creating a user name and password. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a Customer (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the Customer and agree that EDS is entitled to rely on your instructions.
  2. Unauthorized Account Use. You are responsible for notifying us at [email protected] if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. EDS will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by EDS or a third party due to someone else using your account. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, EDS reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
3. OUR PROPRIETARY RIGHTS

The Service and Websites are owned and operated by EDS and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by EDS and its partners, as well as other sources, and are protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service and Websites are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service and Websites. You acknowledge that the Service and Websites have been developed, compiled, prepared, revised, selected, and arranged by EDS and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of EDS and such others. You agree to protect the proprietary rights of EDS and all others having rights in the Service and Websites during and after the term of these Terms and to comply with all written requests made by EDS or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Service and Websites. You agree to notify EDS immediately upon becoming aware of any claim that the Service and Websites infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service and Websites shall, as between you and EDS, at all times be and remain the sole and exclusive property of EDS. Any unauthorized use of any material contained on or through the Service and Websites may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.

4. USER CONTENT AND FEEDBACK
  1. User Content and Submissions on the Service. The Service allows you to create tasks and submit associated information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available to the Service is subject to the following terms:
    1. Free User Content. Free Users maintain ownership of the User Content that they submit to the Service (“Free User Content”). By submitting Free User Content, Free Users grant EDS a license to access, use, copy, reproduce, process, adapt, publish, transmit, and display that Free User Content, as permitted by EDS’s Privacy Policy, including if required to do so by law or in good faith to comply with legal process. We reserve the right to remove any Free User Content on the Service that violates these Terms or that is otherwise objectionable in EDS’ sole discretion.
    2. Subscriber User Content on the Service. Content submitted to the Service by Subscribers (“Subscriber User Content”) is owned and controlled by the Customer as set forth in the introduction to these Terms and the Customer Agreement, except with respect to Subscriber User Content submitted by students pursuant to a Customer Agreement with an educational institution (“Student Content”). Such Student Content is owned by the student and not the educational institution. EDS maintains a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display Subscriber User Content for the following limited purposes: (i) to maintain, provide and improve the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Subscriber User Content is in violation of the Customer Agreement or these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process that meets the requirements of the Customer Agreement; and (v) as otherwise set forth in our Customer Agreement or as expressly permitted in writing by the Customer.
  2. Feedback on the Websites. The Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to EDS and share such Feedback with other users, or the public. By submitting Feedback through the Websites, you grant EDS a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other marketing materials and where required to do so by law or in good faith to comply with legal process.). We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.
  3. User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that EDS does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless EDS for all claims resulting from User Content or Feedback you submit through the Service and/or Websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
5. LICENSE AND ACCEPTABLE USE
  1. Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to access and use the Service and Websites only for your own internal use (or, for Subscribers, uses authorized by the Customer), and only in a manner that complies with all legal requirements that apply to you or your use of the Service and Websites, including the EDS Privacy Policy and these Terms. EDS may revoke this license at any time, in its sole discretion.
  2. Acceptable Use. All Users must comply with the following rules regarding acceptable use of the Service and Websites.Disruption of the Service. You may not:
    • access, tamper with, or use non-public areas of the Service and Websites, EDS’s computer systems, or the technical delivery systems of EDS’s providers;
    • probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
    • access or search the Service and Websites by any means other than EDS’s publicly supported interfaces (for example, “scraping”);
    • attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
    • interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service and Websites, or by scripting the creation of User Content in such a manner as to interfere with or create an undue burden on the Service and Websites.

    Misuse of the Service and Websites. You may not utilize the Service and Websites to carry out, promote or support:

    • any unlawful or fraudulent activities;
    • the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
    • activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
    • the publishing or posting of other people’s private or personal information without their express authorization and permission;
    • the sending of unsolicited communications, promotions advertisements, or spam;
    • the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
    • the promotion or advertisement of products or services other than your own without appropriate authorization.

    User Content Standards Within the Service and Websites. You may not post any User Content on the Service or Websites that:

    • violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
    • is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
    • contains any personal information of minors;
    • contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without EDS’s prior written consent granted as part of a Customer Agreement;
    • contains viruses, bots, worms, or similar harmful materials; or
    • contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.

    Violations of this Section 5. In addition to any other remedies that may be available to us, EDS reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Service or Websites, upon notice and without liability for EDS should you fail to abide by the rules in this Section 5 or if, in EDS’s sole discretion, such action is necessary to prevent disruption of the Service or Websites for other users. If you are a Subscriber, EDS reserves the right to notify the Customer’s Account Administrator(s) or other Customer representative(s) of any violations of these Terms.

6. PRIVACY

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms.

7. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY

THE SERVICE AND WEBSITES AND USER CONTENT, WHETHER PROVIDED BY EDS, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE AND WEBSITES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, EDS DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICE AND WEBSITES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF USER CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICE AND WEBSITES OR THE SERVER(S) THAT MAKE THE SERVICE AND WEBSITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL EDS OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE AND WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE AND WEBSITES, WHETHER OR NOT EDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE OR WEBSITES TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100. EDS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE AND WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE AND WEBSITES, AND EDS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICE AND WEBSITES. EDS WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.

8. EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 7. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 7 specifically do apply to you.

9. INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD EDS AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, CONTRACTORS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICE AND WEBSITES, YOUR CONNECTION TO THE SERVICE AND WEBSITES, YOUR VIOLATION OF THE TERMS OR EDS’S PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICE AND WEBSITES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER INDIVIDUAL OR ENTITY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

10. THIRD-PARTY LINKS AND SERVICE AND WEBSITES

The Service and Websites may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. EDS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that EDS 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 use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

11. MODIFICATION

EDS reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and Websites (or any part thereof), with or without notice. You agree that EDS shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service and Websites.

12. MANDATORY ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND EDS HAVE AGAINST EACH OTHER ARE RESOLVED.

This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and EDS agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.

We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms and Conditions, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Web Site, (ii) any purchases or other transactions or relationships with EDS including in connection with EDS Content, or (iii) any data or information you may provide to EDS or that EDS may gather in connection with such use, interaction or transaction (collectively, “EDS Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the WebSites, or engaging in any other EDS Transactions or Relationships with us, you agree to binding arbitration as provided below.

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our Web Site, you agree that any complaint, dispute, or disagreement you may have against EDS, and any claim that EDS may have against you, arising out of, relating to, or connected in any way with these Terms and Conditions, our Privacy Statement, or any EDS Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by Judicial Arbitration and Mediation Services, Inc. or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (“AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). Furthermore, this Section shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You agree with us that:

  1. Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and EDS (the “Arbitrator”);
  2. Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and Conditions and/or these arbitration provisions in this Section hereof, including but not limited to any claim that all or any part of these Terms and Conditions is void or voidable;
  3. Location of Arbitration. The Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and EDS; or (iii) at the election of either party by videoconference, telephone or by written submission.
  4. Governing Law. The Arbitrator i) shall apply internal laws of the Maryland consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Maryland or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
  5. No Class Relief. The Arbitration can resolve only your and/or EDS’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
  6. Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
  7. Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, EDS will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith in which case you shall be liable if the arbitrator so determines, for EDS’ reasonable costs and expenses including professional and attorney’s fees;
  8. Reasonable Attorney’s Fees. In the event you recover an Award greater than EDS’s last written settlement offer, the Arbitrator shall also have the right to include in the Award EDS’s reimbursement of your reasonable and actual out-of-pocket attorney’s fees associated with the Arbitration, but EDS shall in all events bear its own attorney’s fees; and
  9. Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor EDS shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
  10. Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Service and Websites.
  11. Changes to This Section. EDS will provide thirty (30) days’ notice of any changes to this section by posting on the Service and Websites. Amendments will become effective thirty (30) days after they are posted on the Service and Websites or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Service and Websites.
13. SERVICE DURATION, CANCELLATIONS, REFUNDS AND DATA RETENTION

Service Duration, Account Cancellation or Expiration

Notwithstanding of any of the above, access to the service will continue until the expiration of your subscription (subject to any renewals). Once the subscription has expired, EDS will maintain your account in a disabled state for 90 days. At the conclusion of this 90 day period (data retention period), your data will be permanently deleted.

Monthly Subscriptions:
When cancelling a monthly subscription, all future charges associated with future months of your subscription will be cancelled. You may notify us of your intent to cancel at any time; your cancellation will become effective at the end of your current monthly billing period. You will not receive a refund; however your subscription access and/or delivery and accompanying subscriber benefits will continue for the remainder of the current monthly billing period.

Annual Subscriptions:
When cancelling an annual subscription, all future charges associated with future years of your subscription will be cancelled. You may notify us of your intent to cancel at any time; your cancellation will become effective at the end of your current annual billing period. You will not receive a refund, prorated or otherwise, for the remainder of the annual term. However, your subscription access and/or delivery and accompanying subscriber benefits will continue for the remainder of the current annual billing period.

Reducing Seat License Count:
Reducing the amount of seat licenses for your subscription will only affect future billings. To keep full availability of the subscription, only reduce seat licenses at the end of your billing cycle.

Cancelling subscriptions and/or adding/reducing seat licenses can be performed through the ‘Client Portal’ section of the website or by clicking this link: https://www.staging3.vivotrackai.com/client-portal/

14. DATA STORAGE LIMITS AND ADDITIONAL CHARGES

Each account user is allocated 5GB (Gigabytes) of account storage for documents and images. Trial data including numeric results are not calculated into this total. If the storage allocation is exceeded, the original payment on file will be automatically charged $0.50 per additional GB per month. This amount is in addition to the normal subscription fees and is subject to change with 90 days notice to the User.

Example: If an account has purchased 4 seat licenses, 20GB (5GB per user) of storage will be allocated at no additional charge. If the sum of storage required is 23GB, the account will be charged an additional $1.50 ($0.50 per additional GB) per month.

15. CONTROLLING LAW AND SEVERABILITY

These Terms shall be construed in accordance with and governed by the laws of Maryland notwithstanding its conflicts of law principles. Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Baltimore County, Maryland, and you and EDS consent to the exclusive jurisdiction of such courts.

16. GENERAL TERMS
  1. Force Majeure. Under no circumstances shall EDS or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
  2. No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of EDS to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
  3. Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
  4. Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service and Websites and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
  5. Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and EDS and govern your use of the Service and Websites, and supersede any prior agreements between you and EDS on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by EDS without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of EDS. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Service and Websites for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
  6. Notices. We may deliver notice to you by e-mail, posting a notice on the Service and Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: [email protected].
17. QUESTIONS

If you have any questions about these Terms, please contact us at [email protected]