Effective as of October 7th 2020
PRIMARI Analytics Corp. TERMS OF SERVICE
PRIMARI Analytics Corp. (“PRIMARI,” “we,” “us,” “our“) provides its services (described below) to you through its website located at www.primari.ai (the “Site“) and through its applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)“), subject to the following Terms of Service (as amended from time to time, the “Terms of Service“).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST PRIMARI ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Service
Services Description: The Service is designed to facilitate and accelerate user’s business tasks completion.
Eligibility: This is a contract between you and PRIMARI. You must read and agree to these terms before using the Service. If you do not agree to the terms and conditions of this Agreement, you do not have our permission to use the Service. You may use the Service only if you can form a binding contract with PRIMARI, and only in compliance with this Agreement and any and all applicable local, state, national, and international laws, rules and regulations. Any use or access of the Service by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by PRIMARI.
Limited License: Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. PRIMARI reserves all rights not expressly granted herein in the Service and the PRIMARI Content (as defined under “Our Proprietary Rights” section). PRIMARI may terminate this license at any time for any reason or no reason.
Accounts: Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity; and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another User’s User Account without permission. Your User Account is tied to a unique Uniform Resource Locator (“URL”) that is provided to your company email provided to us by your employer (“User URL”). You are solely responsible for the activity that occurs on your User Account, so you must keep your unique User URL protected. We encourage you to take “strong” security precautions with your User Account and User URL, including (without limitation) restricting access to your company email and to your User URL. You must notify PRIMARI immediately of any breach of security or unauthorized use of your User Account. PRIMARI will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing PRIMARI your and your employees’ email addresses you consent to our using the email address to send you and your employees Service-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences at any time in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Security of your email: You agree (a) to immediately notify PRIMARI of any breach of security and (b) that PRIMARI is not responsible for any electronic communications and/or content (as defined below) which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by PRIMARI. PRIMARI will not be liable for any loss or damage arising from your failure to comply with this Section.
Access to the Service: You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, email servers, email services, web servers, web services, long distance and local telephone service (collectively, “Equipment”). You are responsible for ensuring that such Equipment and services are compatible with the Service (and, to the extent applicable, the Software (as defined below)) and complies with all configurations and specifications set forth in PRIMARI’s published policies then in effect.
General Practices Regarding Use and Storage : You acknowledge that PRIMARI may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on PRIMARI’s servers on your behalf. You agree that PRIMARI has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that PRIMARI reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that PRIMARI reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to and through the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through the service on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Modifications to the Service: PRIMARI reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that PRIMARI will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Service Rules and Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content“) that you upload, post, publish, display, transmit or email (collectively, “transmit“) or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by PRIMARI. PRIMARI reserves the right to investigate and take appropriate legal action against anyone who, in PRIMARI’s sole discretion, violates this provision, including without limitation, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- a) email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” or “spam,” (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (vii) in the sole judgment of PRIMARI, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose PRIMARI or its users to any harm or liability of any type;
- b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- c) violate any applicable local, state, national or international law, or any regulations having the force of law;
- d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- e) solicit personal information from anyone under the age of 18;
- f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- g) submit to PRIMARI referrals or Personal Data relating to third parties without the consent of such third parties;
- h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Paid Services, Cancelations, Downgrades, Terminations, Refunds and Price Modification
Freemium: Free users are not required to provide a credit card number or use any payment service.
Paid Services: Optional paid services are available as an “Upgrade”. By selecting an Upgrade Service you agree to pay PRIMARI the monthly or annual subscription fees indicated for that service and you will be required to select a payment plan and provide PRIMARI information regarding your credit card or other payment instrument. Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a monthly or annual subscription period as indicated. You hereby authorize PRIMARI to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred.
You represent and warrant to PRIMARI that payment related information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay PRIMARI the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service.
You acknowledge that all information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Cancelations and Downgrades:
Professional Version users may cancel your User Account at any time.
Unless you notify PRIMARI before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize PRIMARI to collect the then-applicable annual or monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you.
Upgrades can be cancelled at any time from your PRIMARI Account page. Downgrading your Service may cause the loss of content, features, or capacity of the Service. PRIMARI does not accept any liability for such loss.
Enterprise Version Clients – This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for so long as there is a binding order in effect between the parties. If this Agreement has not terminated early, at least forty-five (45) days prior to the expiration of a Service Term, PRIMARI shall provide Client with a detailed renewal estimate and at least thirty (30) days prior to the expiration of a Service Term, Client will, subject to this section, either: (a) renew the Service Term for a renewal Service Term equal in duration to the then-current Service Term, at PRIMARI’s then-current fees or such other fees as the parties may mutually agree (provided that PRIMARI continues to make the applicable Service modules available); or (b) allow the Service Term to expire. In the event that Client fails to elect either (a) or (b), then (a) will apply unless any Service has been discontinued, in which case, the Service Term will expire at the end of the then current Service Term. Either party may terminate this Agreement (or any binding agreement) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, the cure period is five (5) days. Client agrees that PRIMARI reserves the right to modify, or discontinue offering, the Service effective as of the conclusion of Client’s then-current Service Term, and that PRIMARI will not be liable to Client or to any third party claiming through Client, for any such modification of the Service.
Terminations: You agree that PRIMARI, in its sole discretion, reserves the right to refuse service to anyone for any reason at any time and may suspend, deactivate or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if PRIMARI believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. PRIMARI may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that PRIMARI may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that PRIMARI will not be liable to you or any third party for any termination of your access to the Service.
In the event that PRIMARI suspends or terminates your User Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else.
Refunds: A refund is available only within 30 days of the original purchase date.
Modifications to the Service and Prices
- Prices of all Services are subject to change. Changes will be displayed on the PRIMARI website (www.primari.ai ) or the Service itself.
- PRIMARI shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Acknowledgements: YOU ACKNOWLEDGE AND AGREE THAT (A) PRIMARI (OR OUR PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS (E.G., MONTHLY OR YEARLY) FOR AS LONG AS YOUR SUBSCRIPTION TO THE SERVICE CONTINUES AND (B) YOUR SUBSCRIPTION WILL CONTINUE UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY EMAILING US AT Info@primari.ai ; PROVIDED, THAT, CANCELATION WILL NOT RESULT IN ANY REFUND OF PREPAID FEES (except as described under the Cancelation and Termination section). If you dispute any charges you must let PRIMARI know within sixty (60) days after the date that PRIMARI charges you. We reserve the right to change PRIMARI’s prices. If PRIMARI does change prices, PRIMARI will provide notice of the change through the Service or in email to you, at PRIMARI’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. PRIMARI may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by PRIMARI thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on PRIMARI’s net income.
Data Processing Addendum: To the extent we process any Customer Personal Data (as defined in the Addendum) that is subject to the GDPR (as defined in the Addendum) on your behalf, the terms of the data processing addendum at www.primari.ai/privacy-policy (“Addendum“), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
Security: PRIMARI uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
DMCA Notice: Since we respect artist and content owner rights, it is PRIMARI’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify PRIMARI’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit PRIMARI to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Company: PRIMARI Analytics Corp.
Address: 276 5th Avenue, Suite 704, New York, NY 10001.
Tel.: +1 (646) 883-5651
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying PRIMARI and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with PRIMARI’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, PRIMARI has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. PRIMARI may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Distribution Channels
PRIMARI offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels“). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- PRIMARI and you acknowledge that these Terms of Service are concluded between PRIMARI and you only, and not with Apple Inc. (“Apple”), and that as between PRIMARI and Apple, PRIMARI, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be PRIMARI’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- PRIMARI and you acknowledge that PRIMARI, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between PRIMARI and Apple, PRIMARI, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to PRIMARI as follows: firstname.lastname@example.org ; 276 5th Avenue, Suite 704, New York, NY 10001.
PRIMARI and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
As part of the Service, we may allow you to submit, store and access and we may collect certain Personal Data (as defined below), business data and other information related to your current and potential employees and contacts, including (without limitation) employees’ business email and your and your employees’ contacts personal and professional information made available on third-party services (collectively, “Employee Data”).
Use of Employee Data: By submitting Employee Data to PRIMARI, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Employee Data required for PRIMARI and its subcontractors and service providers to provide the Service. PRIMARI shall have no right to sublicense or resell Employee Data, except however, that you agree that PRIMARI may collect, analyze, and use data derived from Employee Data (including without limitation Personal Data) and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing the Service and any related services. If PRIMARI shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Employee Data, such data will be aggregated or anonymized such that a specific individual is no longer identifiable. You further agree that PRIMARI will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
Rights to Employee Data: You own all right, title and interest (including all Intellectual Property Rights) in and to Employee Data.
Security Incidents: In the event that Employee Data is disclosed to or accessed by an unauthorized party, PRIMARI will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Employee Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not PRIMARI) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not PRIMARI) bears sole responsibility for adequate security, protection and backup of Employee Data when in your or your representatives’ or agents’ possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Employee Data.
Our Intellectual Property Rights
Service Content Ownership, Software and Copyrights: You acknowledge and agree that the Service may contain content or features (“Service Content“) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. The technology and software underlying the Service or distributed in connection therewith are the property of PRIMARI, our affiliates and our partners (the “Software”). Except as expressly authorized by PRIMARI, you agree:
Not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload or transmit through the Service.
Not copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software.
Not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by PRIMARI from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
The look and feel of the Service is copyright (c) PRIMARI. All rights reserved.
The PRIMARI name and logos are trademarks and service marks of PRIMARI (collectively the “PRIMARI Trademarks“). Other PRIMARI, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to PRIMARI. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PRIMARI Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of PRIMARI Trademarks will inure to our exclusive benefit.
Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
Any rights not expressly granted herein are reserved by PRIMARI.
If PRIMARI discovers that you have used its copyrighted or other protected intellectual property in contravention of the terms described above, PRIMARI may bring legal proceedings against you, seeking monetary damages and an injunction against you. You could also be ordered to pay legal fees and costs.
Suggestions, Comments and Ideas: You may choose to, or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place PRIMARI under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, PRIMARI does not waive any rights to use similar or related ideas previously known to PRIMARI, or developed by its employees, or obtained from sources other than you.
If you submit suggestions to PRIMARI through feedback or otherwise, you acknowledge and agree that: (i) your suggestions do not contain confidential or proprietary information; (ii) PRIMARI is not under any obligation of confidentiality with respect to the suggestions; (iii) PRIMARI shall be entitled to use or disclose (or choose not to use or disclose) such suggestions; (iv) PRIMARI may have something similar to the suggestions already under consideration; (v) your suggestions become the property of PRIMARI without any obligation of PRIMARI to you; and (vi) you are not entitled to any compensation or reimbursement of any kind from PRIMARI under any circumstances.
Some areas of the Service allow Users to submit, provide, or otherwise make available content such as marketing materials, videos, images, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on the Service is referred to as “User Content”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS.
By submitting, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to PRIMARI a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and PRIMARI’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- PRIMARI may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
PRIMARI takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
User Content Transmitted Through the Service: By transmitting any User Content through the Service, you hereby grant and will grant PRIMARI and its affiliated companies a license to perform the actions necessary to deliver User Content to the intended recipients. You also acknowledge and agree that User Content does not include any System Data. System Data is owned by PRIMARI. “System Data” means aggregated and anonymous user and other data regarding the Services that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the Services. System Data does not include the contents, subject, senders, or recipients of emails you send or receive through the Service.
Third Party Material
Under no circumstances will PRIMARI be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that PRIMARI does not pre-screen content, but that PRIMARI and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Third Party Services
The Service may provide, or third parties may provide, links or other access to other sites, services, products, and resources on the Internet (“Third Party Services“). PRIMARI has no control over such Third Party Services and PRIMARI is not responsible for and does not endorse such Third Party Services. You further acknowledge and agree that PRIMARI will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Third Party Service. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that PRIMARI is not liable for any loss or claim that you may have against any such third party.
PRIMARI may offer information about other individuals with whom you communicate by email or otherwise interact through the Service, including photographs, job titles/descriptions, and locations (“Personal Insights“). PRIMARI relies on the individuals themselves and other third parties to create these Personal Insights. Accordingly, PRIMARI is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Personal Insights. As such, PRIMARI is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Personal Insights. PRIMARI enables Personal Insights merely as a convenience and the integration or inclusion of Personal Insights does not imply an endorsement or recommendation. You also acknowledge and agree that other PRIMARI users will have access to Personal Insights about you.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PRIMARI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
PRIMARI MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PRIMARI OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, PRIMARI, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, PRIMARI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PRIMARI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PRIMARI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, (EVEN IF PRIMARI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL PRIMARI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PRIMARI IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
UNDER NO CIRCUMSTANCES WILL PRIMARI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRIMARI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL PRIMARI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO PRIMARI HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PRIMARI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Important Note to New Jersey Consumers
IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THIS AGREEMENT DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING THE NEW JERSEY PRODUCTS LIABILITY ACT); (D) THE CALIFORNIA GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW); AND (E) THE REQUIREMENT THAT YOU INDEMNIFY PRIMARI (FOR EXAMPLE, TO THE EXTENT THE SCOPE OF SUCH INDEMNITY IS PROHIBITED UNDER NEW JERSEY LAW).
IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Indemnity and Release
You agree to release, indemnify and hold PRIMARI and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees“) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Service with your unique username, password or other appropriate security code, or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine
Governing Law, Dispute Resolution By Binding Arbitration, and Class Action/Jury Trial Waiver: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Governing Law: You agree that: (i) the Service shall be deemed solely based in New York law; and (ii) the Service shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and PRIMARI, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and PRIMARI are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND PRIMARI AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PRIMARI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution
PRIMARI is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com . If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice“). The Notice to PRIMARI should be sent to 276 5th Avenue New York, NY 10001 (“Notice Address“). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If PRIMARI and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or PRIMARI may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by PRIMARI or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or PRIMARI is entitled.
- Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration . If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless PRIMARI and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, PRIMARI agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, PRIMARI will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, PRIMARI will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, PRIMARI will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
This Agreement, together with any amendments and any additional agreements you may enter into with PRIMARI in connection with the Service, shall constitute the entire agreement between you and PRIMARI concerning the Service.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, PRIMARI agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending PRIMARI written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Class Action/Jury Trial Waiver: WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PRIMARI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Limitation of Claims: YOU AND PRIMARI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE AND/OR YOUR USE THEREOF MUST COMMENCE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and PRIMARI will have no liability or responsibility with respect thereto. PRIMARI reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and PRIMARI and govern your use of the Service, superseding any prior agreements between you and PRIMARI with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and PRIMARI agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of PRIMARI to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of PRIMARI, but PRIMARI may assign, sublicense, or transfer any or all of its rights and obligations under this Terms of Service without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at PRIMARI Analytics Corp. 276 5th Avenue, Suite 704, New York, NY 10001, or by telephone at (646) 883-5651.
Notification Procedures and Changes to the Agreement
PRIMARI may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by PRIMARI in our sole discretion. PRIMARI reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. PRIMARI is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top and bottom of this page the date these terms were last revised. We will notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately.
If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) the Service. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and PRIMARI’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.
Effective as of October 7th 2020