Terms and Conditions
Effective Date: 12/01/2017
Last updated: 12/01/2017
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE "TERMS") CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF COMPANY, ITS AFFILIATES OR AGENTS ("LYTMUS") WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE "WEBSITE") IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A "SERVICE" AND COLLECTIVELY, THE "SERVICES"), CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH LYTMUS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM "YOU" REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
THE TERMS OF SERVICE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Lytmus has developed a skills assessment platform (the "Lytmus Platform") that allows individuals to demonstrate their skills in a realistic setting, so that potential employers can obtain information to evaluate them. Companies that subscribe to Lytmus services ("Employers") are able to access the Lytmus Platform to invite applicants for employment (a "Candidate") to complete a Take-Home (each, a "Take-Home"), after which Lytmus will evaluate the Candidate Take-Homes using its proprietary technology and provide the Employer with reports that rank the Candidates based on their performance in the Take-Home. Individual Employers who create an account on the Website ("Employers") may also access a remote interview tool to interact with employment candidates ("Candidates") via the Lytmus Platform through a virtual machine ("Remote Interview"). Candidates together with Employers and other users of the Website and the Services, are referred to as "Users." Take-Homes and Remote Interviews are referred to collectively as "Sessions."
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY LYTMUS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Lytmus will make a new copy of the Terms of Service available at the Website. We will also update the "Last Updated" date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below). Lytmus may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Use of the Services and Lytmus Properties. The Website, the Software, the Services, and the information and content available on the Website and the Services (as these terms are defined in these Terms) (collectively, the "Lytmus Properties") are protected by copyright laws throughout the world. Subject to the Terms, Lytmus grants you a limited license to reproduce portions of Lytmus Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Lytmus in a separate license, your right to use any Lytmus Properties is subject to the Terms.
- Lytmus Software. Use of the Lytmus Platform and of any other software and associated documentation that is made available via the Website or the Services ("Software") is governed by these Terms. At no time will Lytmus provide you with any tangible copy of our Software. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. Subject to your compliance with the Terms, Lytmus grants you a non-assignable, non-transferable, non- sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
- Updates. You understand that Lytmus Properties are evolving. As a result, Lytmus may require you to accept updates to Lytmus Properties that you have installed on your computer. You acknowledge and agree that Lytmus may update Lytmus Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use Lytmus Properties.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Lytmus Properties or any portion of Lytmus Properties, including the Website, (b) you shall not use any metatags or other "hidden text" using Lytmus's name or trademarks; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Lytmus Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (e) you shall not access Lytmus Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of Lytmus Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Lytmus Properties. Any future release, update or other addition to Lytmus Properties shall be subject to the Terms. Lytmus, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Lytmus Properties terminates the licenses granted by Lytmus pursuant to the Terms.
- Third-Party Materials. As a part of Lytmus Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Lytmus to monitor such materials and that you access these materials at your own risk.
- Registering your Account. In order to participate in a Take-Home or use our Remote Interview tool, you will be required to become a Registered User. For purposes of the Terms, a "Registered User" is a User who has registered an account on the Website ("Account").
- Registration Data. You agree to (1) provide true, accurate, current and complete information about yourself (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Lytmus Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Lytmus immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. You represent and warrant that, in participating in a Take-Home, you will not impersonate any person or falsely state or otherwise misrepresent your affiliation with any person or entity, or allow any third party to participate in a Take-Home under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Lytmus has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Lytmus has the right to suspend or terminate your Account and refuse any and all current or future use of Lytmus Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Lytmus reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party's rights. You agree not to create an Account or use Lytmus Properties if you have been previously removed by Lytmus, or if you have been previously banned from any of Lytmus Properties.
Responsibility for Content.
- Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Lytmus Properties, including Lytmus Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Lytmus, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through Lytmus Properties ("Your Content"), and that you and other Users of Lytmus Properties, and not Lytmus, are similarly responsible for all Content they Make Available through Lytmus Properties ("User Content").
- Storage. Unless expressly agreed to by Lytmus in writing elsewhere, Lytmus has no obligation to store any of Your Content that you Make Available on Lytmus Properties. Lytmus has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Lytmus Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Lytmus retains the right to create reasonable limits on Lytmus's use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Lytmus in its sole discretion.
- Lytmus Properties. Except with respect to Your Content and User Content, you agree that Lytmus and its suppliers own all rights, title and interest in Lytmus Properties (including but not limited to, any computer code). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Lytmus Properties.
- Trademarks. LYTMUS and other related graphics, logos, service marks and trade names used on or in connection with Lytmus Properties are the trademarks of Lytmus and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Lytmus Properties are the property of their respective owners.
- Your Content. Lytmus does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Lytmus Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
- License to Your Content. Subject to any applicable account settings that you select, you grant Lytmus a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Lytmus Properties to you and to our other Users. You agree that you, not Lytmus, are responsible for all of Your Content that you Make Available on or in Lytmus Properties.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Lytmus through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Lytmus has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Lytmus a fully paid, royalty- free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Lytmus Properties.
- User Conduct. As a condition of use, you agree not to use Lytmus Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) to take any action or (b) Make Available any content on or through Lytmus Properties that: (i) interferes with or attempts to interfere with the proper functioning of Lytmus Properties or uses Lytmus Properties in any way not expressly permitted by the Terms; or (ii) to attempt or engage in, any potentially harmful acts that are directed against Lytmus Properties, including but not limited to violating or attempting to violate any security features of Lytmus Properties, using manual or automated software or other means to access, "scrape", "crawl" or "spider" any pages contained in Lytmus Properties, introducing viruses, worms, or similar harmful code into Lytmus Properties, or interfering or attempting to interfere with use of Lytmus Properties by any other user, host or network, including by means of overloading, "flooding," "spamming," "mailbombing," or "crashing" Lytmus Properties.
- Interactions with Other Users. Through your participation in Take-Home(s), you will interact with potential employers through the use of the Lytmus Properties. You are solely responsible for your interactions with any such employers. You agree that Lytmus will not be responsible for any liabilities incurred as the result of such interactions. You further acknowledge and agree that (a) Lytmus shall have the right to provide the recording of your performance in, and/or summaries of, (i) your Take-Home (ii) your Remote Interview(s) to employers and (b) Lytmus shall have the right to rank your performance against other Users who participated in the Take-Home(s) and to provide such ranking(s) to the entities and/or individuals specified above, depending on which such a Take-Home or a Remote Interview. Lytmus will not be responsible to you or any User for any liabilities incurred as the result of Lytmus's recording, summarizing or ranking of your performance and/or interactions in such Sessions.
- Indemnification. You agree to indemnify and hold Lytmus, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the "Lytmus Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content and your participation in any Sessions; (b) your use of, or inability to use, Lytmus Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any other User; or (e) your violation of any applicable laws, rules or regulations. Lytmus reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Lytmus in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to Lytmus Properties.
Disclaimer of Warranties.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF LYTMUS PROPERTIES IS AT YOUR SOLE RISK, AND LYTMUS PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. LYTMUS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LYTMUS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) LYTMUS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF LYTMUS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF LYTMUS PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN LYTMUS PROPERTIES WILL BE CORRECTED.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH LYTMUS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS LYTMUS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. LYTMUS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LYTMUS OR THROUGH LYTMUS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE LYTMUS PROPERTIES. YOU UNDERSTAND THAT LYTMUS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF LYTMUS PROPERTIES.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF LYTMUS PROPERTIES IS AT YOUR SOLE RISK, AND LYTMUS PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. LYTMUS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL LYTMUS PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH LYTMUS PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT LYTMUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF LYTMUS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE LYTMUS PROPERTIES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF ANY OTHER USERS OF THE LYTMUS PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO LYTMUS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL LYTMUS PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50) AS A RESULT OF YOUR USE OF LYTMUS PROPERTIES, INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION IN ANY SESSIONS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LYTMUS AND YOU.
Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Lytmus Properties, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used Lytmus Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Lytmus Properties (whichever is earlier) and will remain in full force and effect while you use Lytmus Properties, unless earlier terminated in accordance with the Terms.
- Termination of Services by Lytmus. Lytmus has the right to, immediately and without notice, suspend or terminate your access to the Lytmus Properties. Further, if you have materially breached any provision of the Terms, or if Lytmus is required to do so by law (e.g., where the provision of the Website, the Software or the Services is, or becomes unlawful), Lytmus has the right to, immediately and without notice, suspend or terminate your access to any or all of the Lytmus Properties. You agree that all terminations for cause shall be made in Lytmus's sole discretion and that Lytmus shall not be liable to you or any third-party for any termination of your Account.
- Termination of Services by You. If you want to terminate your Account with Lytmus, you may do so by notifying Lytmus at any time that you want to close your Account f. Your notice should be sent, in writing, to Lytmus's address set forth below.
- Effect of Termination. Termination of your Account includes removal of your access to some or all of the Lytmus Properties and barring of further use of the Services. Termination of your Account also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any your Account, your right to use the Lytmus Properties will automatically terminate immediately. You understand that any termination of your Account may involve deletion of Your Content associated therewith from our live databases. Lytmus will not have any liability whatsoever to you for any suspension or termination of your Account, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of your Account, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- Violations. If Lytmus becomes aware of any possible violations by you of the Terms, Lytmus reserves the right to investigate such violations. If, as a result of the investigation, Lytmus believes that criminal activity has occurred, Lytmus reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Lytmus is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Lytmus Properties, including Your Content, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; (5) protect the rights, property or personal safety of Lytmus, its Users or the public, or (6) in connection with all enforcement actions or to government officials, as Lytmus in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Lytmus determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Lytmus Properties, Lytmus reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to Lytmus) that you have violated the Terms;
- Delete any of Your Content provided by you or your agent(s) to Lytmus
- Discontinue your Account;
- Discontinue your use of any Services;
- Notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which Lytmus deems to be appropriate.
- No Subsequent Registration. If your Account with or ability to access Lytmus Properties is discontinued by Lytmus due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Lytmus Properties through use of a different name or otherwise. In the event that you violate the immediately preceding sentence, Lytmus reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- Electronic Communications. The communications between you and Lytmus use electronic means, whether you visit Lytmus Properties or send Lytmus e-mails, or whether Lytmus posts notices on Lytmus Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Lytmus in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Lytmus provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Lytmus Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Lytmus Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "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 must have materially affected his settlement with the debtor.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Lytmus's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Lytmus shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Compliance. If you believe that Lytmus has not adhered to the Terms, please contact Lytmus by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
- Limitations Period. YOU AND LYTMUS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, LYTMUS PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Arbitration Agreements.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Lytmus that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Lytmus, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Lytmus should be sent to: 225 Bush St., Suite 1820, San Francisco, CA 94104. After the Notice is received, you and Lytmus may attempt to resolve the claim or dispute informally. If you and Lytmus do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Lytmus made to you prior to the initiation of arbitration, Lytmus will pay you the greater of the award or $100. Each party shall bear its own costs (including attorney's fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non- appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Lytmus pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Lytmus, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Lytmus.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Lytmus in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND LYTMUS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Lytmus.
- Small Claims Court. Notwithstanding the foregoing, either you or Lytmus may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County, California, for such purpose.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
- Notice. Where Lytmus requires that you provide an e-mail address, you are responsible for providing Lytmus with your most current e-mail address. In the event that the last e-mail address you provided to Lytmus is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Lytmus's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Lytmus at the following address: 225 Bush St., Suite 1820 San Francisco, CA 94104. Such notice shall be deemed given when received by Lytmus by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control. You may not use, export, import, or transfer Lytmus Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Lytmus Properties, and any other applicable laws. In particular, but without limitation, Lytmus Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. You also will not use Lytmus Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Lytmus are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Lytmus products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.