FUTURE GENESIS TERMS OF SERVICE
Last Updated: March 5, 2014
At Future Genesis (FGen), we are committed to helping you combat disease through DNA banking and storage. We want to help you to learn, safeguard, and invest in your future health. We understand the importance of safeguarding your DNA fingerprint and helping you to learn about your congenital and ancestral health conditions. Our company is here to encourage you to understand your options. We want you to have resources to learn more about DNA banking and storage to support you and your loved ones; now and in the future.
These Terms of Service provide that all disputes between you and FGen will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Service (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause for the details regarding your agreement to arbitrate any disputes with FGen.
FGen is committed to bringing you a wealth of information on cellular replication technology and congenital health conditions thereby helping you to gain access to information from advanced research institutions doing cellular replication research from all over the World. But you know, nobody's perfect. While we attempt to ensure the accuracy of the information provided on the FGen website (the "Site"), we cannot guarantee that it is always correct or up-to-date. The Site and Services provided by FGen are designed for educational and informational purposes only. Please do not rely on this Site or Services to make lifestyle, healthcare provider or medical decisions. These decisions are personal to you and should be made in consultation with your individual healthcare providers. FGen does not dispense medical, diagnosis or treatment advice.
As in all relationships, there are rules. There are things that you can and can't do, things we do and don't do, and promises we make and those you make to us. We have captured them in these terms of service (“Terms of Service”), which governs your use of this Site, both as a visitor and a registered user. Please read them carefully.
About Our Site & Services
FGen is an online platform dedicated to DNA Banking, Repository, and Storage services for your unique DNA fingerprint. All tools and services offered by us on this Site are referred to as "the Services" for purposes of these Terms of Service.
The information contained on this Site and the Services offered are for educational and informational purposes only and should not be substituted for professional medical advice, treatment or diagnosis. Always seek advice of a qualified medical provider with any specific questions you may have about your health.
This Site and the Services are not intended or designed to be used by children under the age of 13. You may not use the Site or Services if you are under the age of 13.
In order to register as a member, you will provide some basic information to us about yourself, such as your name and email address; and answer a few questions so that we can personalize your experience. During registration you will provide an email address and password. You will also select a “User I.D.” which will be your "nickname" on the Site. These are your credentials for accessing members-only portions of the Site and Services. Display names that are vulgar, attempt to impersonate another person or violate the rights of others are not allowed. There may be various levels of Services available to you. You must be legally competent to enter into contracts to register with our Site.
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Service or in violation of applicable law.
You may not use any scraper, spider, robot or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
Violations of system or network security may result in civil or criminal liability. FGen will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.
Typographical Errors; Pricing
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit or debit card account in the amount of the incorrect price.
Online Purchases and Payments
You can purchase products and/or services on the Site. We accept credit cards issued by U.S. banks. If a credit card account is being used for a transaction, FGen may obtain pre-approval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
You are responsible for taking reasonable steps to ensure that no unauthorized persons have access to your User ID or password. If your password, User ID or other activation codes you may obtain from this Site or the Services are compromised, it is your sole responsibility to immediately inform FGen of any need to deactivate your password or User ID. You grant FGen and all other persons or entities involved in the operation of this Site and the Services the right to transmit, monitor, store, retrieve and use information in connection with operating this Site and the Services. You may use this Site and the Services for lawful purposes only. You may not attempt to gain unauthorized access to any Services, user accounts, computer systems or networks, through hacking, password mining or any other means. You may not use the Site in any way that may interfere with any other party's use and enjoyment of the Site, including but not limited to using the Site or Services in any manner that could overburden our servers or impair, damage, or disable, our networks or servers. We may take any legal and technical remedies to prevent the violation of this provision and to enforce these Terms of Service.
You agree not to, and represent and warrant that you will not, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you.
Though we strive to enforce the rules relating to content with all of our users, you may be exposed through the Site or Services to content that violates our policies or is otherwise offensive. You access the Site and Services at your own risk. We may, but are not obligated to terminate your membership and/or remove content from the Site if we determine or suspect that your or any component of information you submit to us or post on the Site violates the terms of these Terms of Services. We take no responsibility for your exposure to content on the Site or through the Services whether it violates our content policies or not.
You agree not to take any of the following actions, any or all of which taken separately or together, constitutes a material breach of these Terms of Service:
Impersonating another user or allowing another user to use your personal identification;
Using this Site, its Services or any Public Areas for any purpose that violates any laws and/or regulations;
Engaging in viral messaging, distributing harmful computer code or chain mail;
SPAMMING or SPIMMING:
Continuing to disrupt dialogue or posting comments that are unrelated to a discussion topic after being warned against such activities;
Collecting data about others, including through web scraping or data harvesting, without their knowledge;
Advocating or encouraging illegal activity; or
Prohibiting or preventing others from their enjoyment and use of the Site and/or Services that, in FGen’s sole judgment, exposes or attempts to expose us or our licensors, users, customers or suppliers to any liability whatsoever.
FGEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS AND LICENSORS HAVE NO RESPONSIBILITY OR LIABILITY TO ANY USER OR THIRD-PARTY FOR ITS PERFORMANCE OR NON-PERFORMANCE OF ANY ACTIVITIES CONTAINED IN THIS SECTION.
Use of Content
You are authorized to view or download a single copy of materials contained on this Site solely for personal, noncommercial use so long as you include the following copyright notice: "Copyright FGen - All rights reserved" and any other copyright, trademarks or trade-names that may be contained in any downloaded or viewed content. The content contained on this Site and in the Services is and will remain the property of FGen and/or its licensors. Any other terms governing certain software and other Services accessible on the Site may be included elsewhere on the Site and are incorporated in these terms of service. Any use of content that is not expressly permitted by these terms of service shall be a breach of these terms of service and may violate copyright, trademark and other laws. All rights not expressly granted herein are reserved to FGen and its licensors.
Dealings you have with any advertisers or other third parties on the Site or within a Service are between you and the advertiser or applicable third party. You agree and acknowledge that FGen and its affiliates are not liable for any loss or claim you may have against an advertiser or any other third party.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements feedback or other information related to the Site or the Services, including any information you may be permitted to post at the Site (collectively “Feedback”), you agree we may use the Feedback to modify our Services or create new Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise. You further agree not to provide any Feedback that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component.
You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms of Service grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to these Terms of Service. Furthermore, nothing in these Terms of Service will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology.
You may not use, or allow others to use, contact information provided by our users, or harvest information for the purpose of sending, or to facilitate the sending, of unsolicited bulk communications such as SPAM (unsolicited email) or SPIM (unsolicited instant messages). We may terminate your account immediately and take other legal action if you or anyone using your account violates these provisions.
Linking to Us
Unless you have a written agreement with us that specifies how you may link to the Site, following are the rules for adding a link to the Site from your website:
The link must be a text-only link clearly marked "www.FGen.org"
The link must "point" to www.FGen.org and not to other pages within the Site
The appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with FGen’s good name and trademarks
The appearance, position and other aspects of the link may not create the false impression that an entity is associated with, sponsored by, or endorsed by FGen.
The link, when activated by a user, must display the Website full-screen and not within a "frame" on the linking website and linking must not trigger any interstitial or pop-up or pop-under windows
The link will not be used in connection with or appear on a website that a reasonable person may consider offensive, obscene, defamatory or otherwise malicious. FGen, in its sole discretion, may immediately remove or disable any links that violate this provision and shall have no liability whatsoever to any third-party who uses the link
We reserve the right to revoke consent to the link at any time in our sole discretion. If we revoke such consent, you agree to immediately remove and disable any and all of your links to the Site
Any links to other sites that are found on our Site are provided for your convenience only and does mean that FGen endorses these linked sites or the products or services they provide. You agree and acknowledge that FGen and its affiliates are not responsible or liable for the accuracy or content of these linked sites
We Do Not Provide Medical Advice
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. THIS SITE AND THE SERVICES ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, OR REPLACEMENT OF, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THIS SITE. THE USE OF ANY INFORMATION PROVIDED ON THIS SITE IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THIS SITE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
Your access or use of this Site does not create in any way a physician-patient relationship, any sort of confidential relationship, or any other relationship that would give rise to any duties on our part. We do not recommend or endorse any specific tests, physicians, procedures, opinions, or other information that may appear on the Site. If you rely on any of the information provided by this Site, its employees, or its guests or visitors, you do so solely at your own risk.
We Make No Warranties
We provide the Site and the Services "as is", "with all faults" and "as available." We and our suppliers make no express or implied warranties or guarantees about the Services. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THIS SITE WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE MAKE NO WARRANTY THAT THE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. WE ALSO DO NOT GUARANTEE THE SATISFACTION OF GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY. You may have additional consumer rights under your local laws that this contract cannot change. You use the Site and the Services at your own risk.
Limitation of Liability
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR, OUR PARENT COMPANY, AFFILIATES AND OUR SUPPLIERS’ CUMULATIVE LIABILILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE AND SERVICES EXCEED THE GREATER OF (a) THE TOTAL AMOUNT OF SERVICE FEES, IF ANY, THAT YOU PAID DURING A ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE AT ISSUE or (b) $100.
WE, OUR PARENT COMPANY, AFFILIATES, AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OR RELIANCE ON MATERIALS CONTAINED IN THE SITE AND SERVICES OR INABILITY TO USE THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND SUPPLIERS, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless us and our parent and other affiliated companies, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including but not limited to, attorney's fees that arise from your use or misuse of the Site and the Services, or your violation of these Terms of Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Changes to These Terms of Service or the Services
From time to time, FGen may, in our sole discretion, change these Terms of Service or upgrade, enhance, change and modify the Services, including by discontinuing a Service or any aspect or feature thereto (collectively, “Modifications”). Any Modifications will be subject to these Terms of Service but we will use reasonable efforts to let you know ahead of time (by email if you have provided your email or by posting on the Site) of any updates that would be material to our relationship. If you disagree with the Modifications, simply discontinue your use of the applicable Services. Your ongoing use of any Service or of the Site after the changes take effect signifies your agreement to the Modifications.
We may assign this contract at any time without notice to you. You may not assign this contract to anyone else. Any attempted assignment or delegation by you is null and void.
We may cancel, suspend or block your use of the Site and Services (or a Partner of the Site or Service) and/or registration at any time, without cause and/or without notice. We may terminate and/or suspend your registration immediately, without notice, if there has been a violation of these Terms of Service and such other policies and terms posted on the Services. Your right to use the Services will end once your registration is terminated, and any data you have stored on such a Service may be unavailable later, unless we are required to retain it by law. You may terminate your registration at any time. We recommend that you transfer any medical records or other information stored on the Site prior to terminating registration. We are not responsible or liable for any records or information that is made unavailable to you as a result of your termination of registration, except where we are required by law to make those records available to you. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES. Any limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, content, Our Technology and the Services will survive the expiration or termination of these Terms of Service for any reason.
Notices and Agreement to Be Bound by Electronic Signature
Your affirmative act of using this Site, registering for membership and registering for any Service constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. You also agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, "Notices"). We can send you electronic Notices (1) to the e-mail address that you provided to us during registration, (2) to any e-mail account you open with a Service, or (3) by posting the Notice on the applicable Service or otherwise through the Site. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the applicable Service. You must give notice to us in writing via email to info@FGen.org or as otherwise expressly provided.
All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
Choice of Law and Jurisdiction
You are responsible for compliance with all applicable laws. You agree that the law of the District of Columbia governs this contract and any claim or dispute that you may have against us, without regard to the District's conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. Subject to and without limiting the mandatory arbitration of claims as set forth in Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause, below, You further agree consent to the personal jurisdiction of a court located in the District of Columbia.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF SERVICE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE DISTRICT OF COLUMBIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US RELATING TO OR ARISING OUT OF THE SITE, THE SERVICE OR THE AGREEMENT; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE DISTRICT OF COLUMBIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
Procedures for Notification of Copyright Infringement
If you believe that your copyrighted work has been copied and is accessible on this Site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information:
The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf.
A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
Identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published.
Identification of the URL or other specific location on this site where the material that you claim is infringing is located; you must include enough information to allow us to locate the material.
Your name, address, telephone number, and email address so that we may contact you.
You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
Our agent for notice of copyright infringement can be reached as follows:
3000 K Street, NW, Suite 305
Washington, DC 20007
This contact information is only for reporting copyright infringement. Please see the Contact Us section for contact information for other topics.
All trademarks appearing on the Services are the property of their respective owners. You are not authorized to use any such trademarks. Ownership of all such trademarks and the goodwill associated therewith remains with and will inure to us or those other entities.
This contract and any supplemental terms, policies, rules and guidelines posted on the Site and the Services constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms of Service, shown in boldface type, are included only to help make these Terms of Service easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. If you are a California resident, you waive California Civil Code §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.”
Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause.
All controversies, disputes, demands, counts, claims, or causes of action between you and FGen arising out of, under, or related to these Terms of Service or our privacy practices (including any action we take or authorize with respect to information about or provided by you) shall be settled exclusively through binding arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms of Service, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims 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 are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and FGen must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and FGen, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, FGen 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, (g) FGen also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or FGen shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/FGen customer; and (j) each side pays 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.
With the exception of subparts (d) and (e) in the paragraph above (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 Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor FGen shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and FGen shall be exclusively brought in the state or federal courts located in the District of Columbia.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.