POPULATION EXPLORER, INC.
TERMS OF SERVICE
THESE TERMS OF SERVICE (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN POPULATION EXPLORER, INC., WITH AN ADDRESS OF 80 GARDEN CENTER A-368, BROOMFIELD, CO 80020 (“WE” OR “PE”) AND YOU, EITHER AS AN INDIVIDUAL OR AN ENTITY (“YOU” OR “SUBSCRIBER”), REGARDING THE SERVICE OR SERVICES (AS DEFINED BELOW).
BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICE, YOU EXPRESSLY (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICE.
IF A SUBSCRIBER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY, COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (EACH AN “ENTITY”), SUCH SUBSCRIBER IS ENTERING INTO THIS AGREEMENT FOR THAT ENTITY AND HEREBY REPRESENTS TO PE THAT SUCH SUBSCRIBER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “SUBSCRIBER” AS USED HEREIN WILL REFER TO SUCH ENTITY AND ITS AFFILIATES.
1. DESCRIPTION OF SERVICE
PE provides an array of services for online data analysis, data management and decision support (“Service” or “Services”). You may connect to the Services using any Internet browser and PE mobile applications. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your PE account and if You choose to do so, You can download and share such content.
Subject to your compliance with the terms of this Agreement, PE grants You a personal, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Service during the term of this Agreement, whether accessed via an Internet browser, smartphone, tablet or other device, (a) solely in object code form, and (b) solely via a device that meets the minimum technical requirements necessary to run the Service (as determined by PE). PE, in its sole discretion, may make updates, upgrades or other new releases of the Service available to You.
PE will employ reasonable measures to provide You with access to the Service. However, there will be occasions when the Service will be interrupted for maintenance, upgrades for emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond PE’s control. When possible, PE will take reasonable steps to minimize such disruptions within PE’s control.
4. MODIFICATION OF SERVICE
PE may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Service, or suspend or discontinue the Service or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to You or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Service, PE will use reasonable efforts to provide You with actual notice, rather than merely constructive notice, as soon as commercially practicable under the circumstances). You agree that PE shall not be liable to You for any modification, suspension or discontinuance of the Service or any features or functions thereof.
5. SEPARATELY LICENSED SOFTWARE
The Service may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other third party software or materials, which in each case is embedded in the Service or provided by PE in connection with the Service (“Separately Licensed Software”). Your use of Separately Licensed Software is governed by the separate license terms specified by PE. This Agreement does not apply to Separately Licensed Software, and PE hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to You or any third party based on any claims arising out of use of Separately Licensed Software. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement.
6. THIRD-PARTY SERVICES
PE allows You to access and view a variety of content (including, for example, map and population data) provided by third parties. Map data and population data, geocoding and related third-party content are provided for display and planning purposes only. Map data may contain information which is outdated, incorrect or otherwise not accurate and therefore You should exercise extreme caution when using this data.
If You provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service to PE, You agree that PE and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Service, other related technologies and/or for any other purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual basis. PE will not be obligated to implement any Feedback or correct any defects, bugs or errors in the Service identified in the Feedback or otherwise.
9. PERMITTED USES AND RESTRICTIONS
You may use the Service solely for its intended purpose as set forth in the documentation for the Service. Without limiting the immediately preceding sentence, You may not (a) share your user name or password for the Service with any other individual or allow any third party to access or use the Service (except that You are permitted to engage with other individuals who also hold a valid subscription to the Service), (b) sell, resell, license, sublicense, distribute, rent or lease the Service, including the Service in a service bureau or outsourcing offering, or otherwise access or use the Service other than as expressly permitted hereunder, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights, (d) use the Service to store or transmit code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with, or disrupt the integrity or performance of, the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (h) copy the Service or any part, feature, function or user interface thereof, (i) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Service, (j) frame or mirror any part of the Service, other than framing on your own intranet or otherwise for your own internal business purposes or as permitted in the documentation for the Service, (k) access the Service in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, (l) “harvest” or collect information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis, (m) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, in whole or in part, except as and only to the extent such restriction is permitted by any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”), (n) integrate or link to any open source software or freeware with the Service, (o) remove any proprietary notices, labels or marks from the Service, or (p) permit third parties to do any of the foregoing.
In addition to all other terms and conditions of this Agreement, You shall not: (i) transfer or otherwise make available to any third party the Services; (ii) provide any service based on the Services without prior written permission; (iii) post links to third-party sites or use their logo, company name, etc. without their prior written permission; or (iv) use the Services for spamming and/or other illegal purposes.
10. SUBSCRIBER OBLIGATIONS
You are responsible for (a) information submitted to the Service under your user name and password (“Registration Data”), (b) treating your user name and/or password as confidential, and not disclosing it to any third party, (c) ensuring that the computer or device on which You access the Service has the required minimum Internet bandwidth (upload and download) and is in compliance with any other minimum requirements set forth in the documentation for the Service, (d) the accuracy, quality and legality of all Registration Data You submit to the Service and the means by which You acquired such Registration Data, (e) using commercially-reasonable efforts to prevent unauthorized access to or use of the Service, (f) promptly notifying PE in the event of any unauthorized use of or access to the Service, and (g) providing reasonable assistance to PE in investigating and preventing the recurrence of such unauthorized use or access.
11. SUBSCRIBER GENERATED REGISTRATION DATA
Any content that You may receive from other users of the Services is provided to You “AS IS” for your information and personal use only, and You agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if You come across any content with copyright notice(s) or any copy protection feature(s), You agree not to remove such copyright notice(s) or disable such copy protection feature(s), as the case may be. By making any copyrighted/copyrightable content available on any of the Services, You affirm that You have the consent, authorization or permission, as the case may be, from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, You expressly agree that PE will have the right to block access to or remove such content made available by You, if PE receives complaints concerning any illegality or infringement of third-party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, You expressly consent to determination of questions of illegality or infringement of third-party rights in such content by the agent designated by PE for this purpose.
12. PAYMENT PLAN AND TERMS
a. Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). You may change your subscription term at any time by contacting PE using one of the methods set forth in below. The subscription fee will be charged to the credit card last used by you, and your credit card will be charged once a month for monthly subscriptions and annually for annual subscriptions (the “Subscription Fees”). If your credit card cannot be charged, PE will notify You and You will need to update your payment information. In the event You do not update your payment information within three (3) days of PE’s notice, your access to the Service may be suspended and You will need to update your card information in order to resume use of the Service.
b. If You would like the payment for the renewal to be made through a different credit card or alternative payment process or if You do not wish to renew the subscription, You agree to inform PE at least seven (7) days prior to the renewal date.
c. All Subscription Fees are nonrefundable. Without limiting the foregoing, no refunds or credits will be issued for partial periods of Service or refunds for periods unused with an active subscription.
d. The Subscription Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties. Subscriber will be billed, and payments will be made, in U.S. dollars. If Subscriber believes the bill is incorrect, the Subscriber must contact PE in writing within fifteen (15) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
e. In addition to any other rights granted to PE herein, PE reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent and is uncured for a period of fifteen (15) days. Delinquent invoices are subject to interest of one and one-half percent (1.5%) per month on any outstanding balance or the maximum permitted by Law, whichever is less, from the date due, plus all expenses of collection. Subscriber will continue to be charged for Subscription Fees during any period of Service suspension.
f. PE may increase the Subscription Fees from time to time, and any increase during the term of your subscription will be applicable at the time of renewal of your subscription to the Service. In addition, PE reserves the right to charge for use of Services that are currently available free of charge. You will not be charged for using any Service unless You have opted for a paid subscription plan.
13. TERM AND TERMINATION
a. This Agreement will remain in effect until (i) PE terminates your rights under this Agreement, which it may do immediately, without notice or liability, if You fail to comply with any term(s) of this Agreement, or (ii) the Subscriber cancels the subscription, whichever occurs first. Subscriber may terminate the subscription through the cancellation button on the user profile web page.
b. You acknowledge that if You breach this Agreement, PE may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond. Upon any termination of this Agreement, (i) You agree to immediately cease using the Service, and (ii) your access to the Service will be automatically terminated and your user name and password will be removed. Upon cancellation or termination of this Agreement, PE may immediately delete or destroy all Registration Data that You have uploaded, submitted or entered into the Service, subject to requirements of Law. Upon the termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except that provisions which by their nature should survive termination will survive, including use restrictions, indemnity obligations, warranty disclaimers, and limitations of liability.
14. INACTIVE SUBSCRIBER ACCOUNTS POLICY
PE reserves the right to terminate unpaid accounts that are inactive for a continuous period of thirty (30) days. In the event of such termination, all data associated with such account will be deleted. PE will provide You prior notice of such termination and backup of your data by email. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
15. CHANGES AND SUSPENSION
a. Changes to the Services. PE reserves the right to make changes to the Services or any portion thereof, for any reason. Subscriber agrees that PE will not be liable to Subscriber or third party for any such change.
b. Suspension of Access. PE may suspend Subscriber’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (i) PE receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires PE to do so; (ii) PE believes, in its good faith and reasonable discretion, that Subscriber has violated the provisions of this Agreement; or (iii) Subscriber fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Subscriber from its obligation to make the payment(s) contemplated under the Agreement to PE. If PE suspends the Service, PE shall promptly restore Subscriber’s access to and use of the Service after the event giving rise to the suspension has been resolved to PE’s satisfaction. PE may terminate the suspended account after fifteen (15) days from the first day Subscriber’s account was suspended. We will also terminate your suspended account upon your written request by emailing PE at email@example.com. Termination of your account in accordance with this Section will include denial of access to all Services, deletion of your account information such as your e-mail ID and Password, and deletion of all Registration Data.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS
You hereby represent, warrant and covenant that (a) You have the requisite power and authority to enter into this Agreement and perform your obligations hereunder, (b) You have all rights and licenses necessary with respect to your submission and the use of any Registration Data in connection with the Service, (c) your submission and the use of any Registration Data in connection with the Service will be in compliance with Law, and (d) You will not submit any Registration Data to the Service that is unlawful, offensive, threatening, libelous, defamatory, obscene, or otherwise violates any third party’s rights, including intellectual property rights and/or privacy rights, or that violates this Agreement.
17. COLLECTION AND USE OF DATA AND OTHER INFORMATION
PE may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Service in aggregated form to create statistical analyses and for research and development purposes ((a) and (b) collectively, “Service Analyses”). PE may make Service Analyses publicly available and use Service Analyses for its business purposes; however, Service Analyses shall not incorporate Registration Data in a form that could serve to identify Subscriber or any individual. Service Analyses do not constitute Registration Data, and PE shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto. “Intellectual Property Right” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
18. RECORD RETENTION
During and after the term of this Agreement, PE may (a) collect, retain and use any Registration Data submitted to the Service, including usage history, in order to provide and administer the Service; however, PE is not responsible for maintaining such Registration Data, except as required by Law; and (b) access, read, preserve, and disclose any Registration Data submitted to the Service that PE reasonably believes is necessary to (i) satisfy any Law, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to a support request, or (v) protect its rights, property or safety, and that of its users and the public.
a. As between You and PE, all title and Intellectual Property Rights in and to the Service are owned exclusively by PE. You are a Subscriber to the Service; the Service is not sold to you. No title to or ownership of the Service, or any proprietary rights related to the Service, is transferred under or by virtue of this Agreement. PE reserves all rights in and to the Service not expressly granted to You under this Agreement. Further, this Agreement does not authorize You to use any name, trademark or logo of PE. The Service is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property.
b. As between the Parties, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Registration Data, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to PE. Subscriber hereby grants to PE a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to process the Registration Data in order to provide the Service to Subscriber.
20. SAMPLE FILES AND APPLICATIONS
PE may provide sample files and applications for the purpose of demonstrating the possibility of using the Services effectively for specific purposes. The information contained in any such sample files and applications consists of random data. PE makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the information or the sample files and applications.
21. DISCLAIMER OF WARRANTIES
a. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. PE EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
b. PE DOES NOT WARRANT THAT THE SERVICE WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. PE SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICE, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICE, FAILURE OF THE SERVICE, OR OTHERWISE RELATING TO THE SERVICE.
c. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM PE, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
22. LIMITATION OF LIABILITY
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY, INCLUDING DAMAGES FOR COMPUTER MALFUNCTION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, AND/OR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR SERVICES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SERVICE, HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF PE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID TO PE FOR YOUR LICENSE TO THE SERVICE DURING THE LAST MONTH PRECEDING THE DATE THE CLAIM AROSE, OR PRORATED IF PAID ANNUALLY, OR U.S. $1.00. THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER AN ACTION IS IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICE, THIS AGREEMENT OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to indemnify, hold harmless and defend PE, including its licensees and their subsidiaries, affiliates, officers, directors, agents, employees, successors and assigns, from and against any and all costs, expenses, liabilities, fines, penalties, and damages, including attorneys’ fees, incurred in connection with any and all third-party claims arising out of (a) your use of the Service, (b) violation of the terms of this Agreement, or (c) an allegation that your use of the Service infringes, misappropriates or otherwise violates a third party’s Intellectual Property Rights or violates applicable Law.
If You are contacted by (or otherwise become aware of) a third party claiming rights in any portion of the Service, or claiming that use of the Service infringes any right of that third party, You must immediately notify PE and, at PE’s request, immediately cease use of the Service as directed by PE. If PE determines in its sole discretion that it cannot or should not otherwise allow You to continue using the Service because of such claim, PE may terminate this Agreement immediately by delivering notice to You without any resulting obligation or liability to You by reason of such termination.
25. EXPORT CONTROL LAWS
The Service is subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations. You agree to comply with such laws and regulations governing export, re-export, transfer and use of the Service, and You shall obtain all required U.S. and local authorizations, permits, or licenses. You 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.
26. U. S. GOVERNMENT END USERS
The Service is “commercial computer software” as defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense FAR Supplements (the “DFARS”). The Service was developed entirely at private expense and no part of the Service was first produced in the performance of a Government contract. If You are a U.S. Government agency, in accordance with FAR 12.212 and its successors or DFARS 227.7202 and its successors, as applicable, the Service is licensed to You subject to the terms of this Agreement.
a. This Agreement and all matters arising out of or relating to this Agreement shall be governed by, and is to be construed in accordance with, the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado.
b. In the event of any conflict or claim arising out of or relating to any provision of this Agreement or breach thereof, the parties shall make a good faith effort to settle such conflict amicably between themselves. Any such conflict which the parties are unable to resolve shall be settled in accordance with the rules of the American Arbitration Association, except as set forth herein. The award or decision shall be rendered by a single arbitrator. A single arbitrator shall be agreed upon by Subscriber and PE (the “Parties”) or, if the Parties cannot agree upon an arbitrator within thirty (30) days, then the Parties agree that a single arbitrator shall be appointed by the American Arbitration Association. Such arbitration proceedings shall be conducted in Broomfield, Colorado. The award or decision through arbitration shall be binding upon the Parties and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction. Any and all proceedings to resolve claims or conflicts will be conducted only on an individual basis and not in a class, consolidated or representative action, and Subscriber agrees to this limitation as a condition of using the Service. If, for any reason, a claim proceeds in court rather than in arbitration, Subscriber waives any right to a jury trial. The Federal Arbitration Act, federal arbitration law and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 apply to this Agreement and any arbitral award granted in connection with a claim. An arbitration decision may be confirmed by any court of competent jurisdiction. Notwithstanding anything to the contrary herein, Subscriber may opt out of the foregoing arbitration provision by notifying PE of Subscriber’s desire to opt out, which writing must be dated, signed and delivered by U.S. Mail or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Population Explorer, Inc., Attn: Legal, 80 Garden Center A-368, Broomfield, CO 80020, United States of America. In order to be effective, the writing must clearly indicate Subscriber’s intention to opt out of the foregoing arbitration provision, and the envelope containing the signed writing must be received (if delivered by hand) or postmarked within thirty (30) days of the date this Agreement is executed by You. Should Subscriber not opt out of the foregoing arbitration provision within such thirty (30) day period, Subscriber shall be bound by the terms of the foregoing arbitration provision. Subscriber has the right to consult with counsel of Subscriber’s choice concerning the foregoing arbitration provision.
28. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement binding between You and PE with respect to your use of the Service and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter.
29. MODIFICATIONS TO AGREEMENT
PE reserves the right, in its sole discretion, to modify this Agreement at any time upon notice to You, including by posting a revised version of this Agreement on the Service. Any such modified Agreement will be effective immediately upon being made available to You, and your continued use of the Service thereafter constitutes your affirmative acceptance of such modified Agreement. Otherwise, the terms of this Agreement may not be modified, in whole or in part, except by written agreement executed by an authorized signatory of PE. If You are dissatisfied with the terms of the Agreement or any modifications thereof, then You agree that your sole and exclusive remedy is to discontinue any use of the Service.
Communications from PE to You may be by electronic means. You hereby consent to receiving communications from PE in electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that PE provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any nonwaivable rights.
The Service may include certain communications from PE, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of PE’s policy to provide You total privacy, PE also provides You the option of opting out from receiving newsletters from us. However, You will not be able to opt-out from receiving service announcements and administrative messages.
Any remedy of PE set forth in this Agreement is in addition to any other remedy afforded to PE under applicable Law or otherwise. PE’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or by disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without PE’s prior written consent. Any purported assignment in violation of this Section shall be void. PE may freely assign or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall apply to, and be binding upon, the approved successors and permitted assigns of the parties hereto. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This Agreement does not and is not intended to confer any rights or remedies upon any person other than You and PE. For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation.
All notices, requests, approvals, and other communications required or permitted to be given by You hereunder must be in writing addressed to PE at the address indicated above and will be deemed delivered and effective: (a) when sent by overnight courier, one (1) business day after deposit with a nationally recognized overnight courier; or (b) when sent by registered or certified mail, postage prepaid, five (5) days after deposit with the U.S. Postal Service.
If You have any questions about this Agreement please contact PE at firstname.lastname@example.org, or write PE at Population Explorer, Inc., Attn: Legal, 80 Garden Center A-368, Broomfield, CO 80020, United States of America.