Last Updated: 10/1/2018
Changes to Terms or Site
We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them or you use the Site. If you continue to use the Site after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section “Effect of Changes on Arbitron,” you may not use the Site anymore. Because our Site and the Content (as defined below) are evolving over time we may change or discontinue all or any part of the Site, at any time and without notice, at our sole discretion.
Using the Site
You may use the Site only if you are 13 years or older and are not barred from using the Site under applicable law.
We welcome feedback, comments and suggestions for improvements to the Site (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback you transmit to us for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Site; and (ii) “User Content” means any Content that any person (including you) submits to, communicates or transmits through the Site or by electronic communication to Modis. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Modis does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Modis and its licensors exclusively own all right, title and interest in and to the Site and Content (other than User Content), including all associated intellectual property rights. You acknowledge that the Site and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Content.
Rights in User Content Granted by You
You agree you will not submit to the Site and will not communicate or transmit to Modis any information that you consider to be confidential or proprietary. By making any User Content available through the Site or by electronic communication, you hereby grant to Modis a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Site and Content. You agree that any information that you submit or communicate to Modis (other than personally identifiable information) will be treated by us as non-confidential and non-proprietary information.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content through the Site, nor any use of your User Content by Modis on or through the Site will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Be aware that we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Modis
Subject to your compliance with these Terms, Modis grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content (other than the User Content) solely in connection with your permitted use of the Site and solely for your personal and non-commercial purposes.
You agree not to do any of the following:
- Modify, created derivative work based upon, transmit, redistribute, publish the Content;
- Use the Site or Content, or any portion thereof, for any commercial purposes or for the benefit of any third party or in any manner not permitted by these Terms;
- Infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- Submit, communicate or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Site or any individual element within the Site, Modis’ name, any Modis trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Modis’ express written consent;
- Access, tamper with, or use non-public areas of the Site, Modis’ computer systems, or the technical delivery systems of Modis’ providers;
- Attempt to probe, scan or test the vulnerability of any Modis system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Modis or any of Modis’ providers or any other third party (including another user) to protect the Site or Content;
- Attempt to access or search the Site or Content or download Content from the Site through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Modis or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Modis trademark, logo URL or product name without Modis’ express written consent;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Content to send altered, deceptive or false source-identifying information;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
- Collect or store any personally identifiable information from the Site from other users of the Site without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Modis’ Enforcement Rights
Although we’re not obligated to monitor access to or use of the Site or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Site, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Site. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
No Professional Services or Advice; No Doctor-Patient Relationship
Modis provides the Site and Content for informational purposes only. THE SITE AND CONTENT DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, PROFESSIONAL OR MEDICAL ADVICE OR OPINION OF ANY KIND AND THE SITE AND CONTENT ARE NOT A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE OR OPINION OF ANY KIND. THE CONTENT MADE AVAILABLE ON OR THROUGH THE SITE SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. FOR MEDICAL ADVICE, YOU SHOULD CONSULT A MEDICAL PROFESSIONAL. YOUR USE OF THE SITE OR ANY COMMUNICATION WITH MODIS DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND MODIS. In addition, nothing contained in the Site shall be constructed as a promotion or solicitation of any product or medical device prohibited by United States laws.
Links to Third Party Websites or Resources
The Site may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Site and Content, at our sole discretion, if you violate these Terms.
The Site and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content. Content may become out of date and may include omissions or other errors.
You will indemnify and hold harmless Modis and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Site or Content, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability
NEITHER MODIS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MODIS OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL MODIS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100) . THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODIS AND YOU.
Governing Law and Forum Choice
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Modis are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Modis each waive any objection to jurisdiction and venue in such courts.
Mandatory Arbitration of Disputes
You and Modis each agrees that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Modis agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Modis are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions and Opt-out
As limited exceptions to the Section “Mandatory Arbitration of Disputes” above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org or by regular mail at 409 13th Street, Oakland, CA 94612 within thirty (30) days following the date you first agree to these Terms.
Conducting Arbitration and Arbitration Rules
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Class Action Waiver
YOU AND MODIS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Effect of Changes on Arbitration
Notwithstanding the provisions of Section “Changes to Terms or Site” above, if Modis changes any of the terms of this Section “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Modis’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Client in accordance with the terms of this Section “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
With the exception of any of the provisions in Section "Class Action Waiver", if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
These Terms constitute the entire and exclusive understanding and agreement between Modis and you regarding the Site and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Modis and you regarding the Site and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Modis’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Modis may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Modis under these Terms, including those regarding modifications to these Terms, will be given by posting to the Site.
Modis’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Modis. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Site, please contact Modis at:
Modis Therapeutics, Inc.
409 13th Street
Oakland, CA 94612