Effective: September 1, 2017
NOTICE OF CLASS ACTION WAIVER: PLEASE NOTE THAT ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OR ARISING OUT OF YOUR USE OF THIS SITE MUST BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS, AND MAY NOT BE ARBITRATED OR OTHERWISE PURSUED AS A CLASS ACTION. PLEASE SEE SECTION 17 BELOW.
1. General. This Site is owned and operated by MemComputing, Inc. (“MemComputing,” “we” and “us”). MemComputing reserves the right to revise any of these Terms in our sole discretion at any time and without prior notice to you by updating this posting, such changes to be effective prospectively. Thus, you should visit this page periodically for changes. If you disagree with any of these Terms, your sole remedy is to discontinue your use of this Site. Your continued use of the Site after a change has been posted constitutes your acceptance of the change thereafter.
2. Applicability. These Terms govern your use of the Site, except as set forth in this Section 2. In addition to serving informational, marketing, and other purposes, this Site includes a portal through which our SaaS customers may log in and access our SaaS products, which are not generally available to all visitors of this Site. All references in these terms to “using this Site” (and similar terms) exclude any use of our SaaS products. Rather, all access to and use of our SaaS products by a customer shall be governed exclusively by the terms and conditions of the applicable SaaS agreement executed by MemComputing and such customer, not by these Terms.
3. Prohibited Activities. In using this Site, you must not:
• Send or otherwise transmit to or through this Site any unlawful, infringing, harmful, harassing, defamatory, threatening, vulgar or otherwise objectionable material of any kind;
• Misrepresent your identity or affiliation in any way;
• Violate any applicable laws or regulations; or
• Assist or permit any persons in engaging in any of the activities described above.
6. Copyright. This Site, and all content available hereon, is protected by copyright. No portion of this Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our prior written consent. Any such modification or use of the Site’s content for any purpose not authorized under these Terms is a violation of the copyrights and other proprietary rights of MemComputing. Permission for all uses of the Site other than as expressly authorized under these Terms, including reproducing and distributing multiple copies must be obtained from MemComputing in advance. Any such request should be submitted via an email to [[email protected]]. The use of this Site, or any content available hereon, on any other website or networked computer environment is prohibited. All design rights, compilation rights, and other intellectual property rights in and to this Site, in each case whether registered or unregistered, and related goodwill are proprietary to MemComputing.
7. Trademarks. All trademarks, service marks, logos and trade names on this Site, whether registered or unregistered, including but not limited to “MEMCOMPUTING”, are proprietary to MemComputing or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
8. Links to Other Websites. For your convenience, this Site may contain links to other websites. If you click on these links, you will leave this Site. Certain of these linked websites may make use of MemComputing’s intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from MemComputing. We are not responsible for the availability or content of these other websites or for any viruses or other damaging elements encountered in linking to a third-party website, whether or not MemComputing is affiliated with the owners of such websites. In addition, providing links to these websites should not be interpreted as endorsement or approval by MemComputing of the organizations sponsoring such third-party websites or their products or services. These Terms do not apply to any other website.
9. Jurisdictional Issues. This Site is controlled and operated by MemComputing from its offices within the State of California, in the United States of America. MemComputing makes no representation that materials available on the Site are appropriate or available for use in other locations. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent such laws are applicable. Access to this Site from jurisdictions where the contents of this Site are illegal or penalized is prohibited. Further, software on this Site may be subject to United States export controls. No information or software from this Site may be downloaded or otherwise re-exported (i) into or to a national or resident of any country to which the United States embargoes or sanctions goods, services or technology; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using information or software from this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
10. Termination. MemComputing may terminate your use of this Site at any time in our sole discretion. The provisions of these Terms concerning Site security, prohibited activities, copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, and jurisdictional issues shall survive any such termination.
11. Disclaimer. THE MATERIALS AND FUNCTIONALITIES AVAILABLE ON THIS SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MEMCOMPUTING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MEMCOMPUTING DOES NOT WARRANT THAT THE FUNCTIONS ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MEMCOMPUTING DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS OR FUNCTIONS ON THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL MEMCOMPUTING BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES RESULTING FROM THE USE OF, OR THE INABILITY TO USE, THIS SITE, EVEN IF MEMCOMPUTING OR AN AUTHORIZED REPRESENTATIVE OF MEMCOMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW SOME OR ALL OF THIS LIMITATION OF LIABILITY, SO IT MAY NOT APPLY TO YOU.
13. Site Security. You are prohibited from violating, or attempting to violate, the security of this Site, including without limitation to conduct a denial of service attack or other attack. Any such violations may result in criminal and/or civil penalties against you. MemComputing reserves the right to investigate any alleged or suspected violations and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.
14. Children. This Site is a general audience site. MemComputing does not seek through this Site to gather personal information from or about persons under the age of 13.
16. Governing Law. These Terms shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions.
17. Dispute Resolution; Class Action Waiver.
YOU SHOULD REVIEW THIS PROVISION CAREFULLY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS EXCEPT FOR MATTERS THAT YOU FILE IN SMALL CLAIMS COURT IN THE STATE OR MUNICIPALITY OF YOUR RESIDENCE WITHIN THE JURISDICTIONAL LIMITS OF THE SMALL CLAIMS COURT AND AS LONG AS SUCH MATTER IS ONLY PENDING IN THAT COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES MAY BE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. AN ARBITRATOR’S DECISION IS AS ENFORCEABLE AS ANY COURT ORDER AND IS SUBJECT TO VERY LIMITED REVIEW BY A COURT. YOU EXPRESSLY AGREE TO THIS PROVISION AS A CONDITION OF USING THIS SITE.
For any dispute or claim you have with or against MemComputing or these Terms (a “Dispute,”), you agree to first contact us at [email protected], and to attempt to resolve such Dispute with us informally. In the unlikely event that we are unable to resolve any Dispute you bring to our attention after sixty (60) days, and for any other Dispute we raise, you and MemComputing agree that, except where prohibited by law, all Disputes shall be resolved individually and exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator, all pursuant to the AAA Commercial Arbitration Rules as supplemented by AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”). For more information on the AAA, the AAA Rules, or the process for filing an arbitration claim, you may call the AAA at (800) 778-7879 or visit the AAA website at www.adr.org.
You and MemComputing agree to the following with respect to the arbitration of any Dispute hereunder: (a) ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) the arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we 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 as compared to the cost of litigation; (e) we reserve the right, in our sole discretion, to assume responsibility for any or all of the costs of the arbitration; (f) the arbitrator will honor claims of privilege and privacy recognized at law; (g) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (h) the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (i) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. ANY RIGHT TO A TRIAL BY JURY, WHETHER ON AN INDIVIDUAL OR A CLASS BASIS, IS HEREBY WAIVED.
This provision will survive termination of these Terms or your right to use this Site. With the exception of the subpart prohibiting arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the AAA Rules, then the balance of this provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the Dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence.
18. Other. If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the subject matter herein except as set forth in Section 2 above.
19. Questions. If you have any questions regarding these Terms, please submit your questions via an email to [email protected]. We will endeavor to respond to you promptly.