Updated January 1, 2021
The website located at acusmart.com (the “Site”) belongs to AcuSmarty LLC, (“We”, “Us’). As provided below, AcuSmart grants you the right to use the Site, our software applications, including without limitation AcuSmart App (collectively “Software” or “App”), and services provided through the Site or Software (together, the “AcuSmart Service”), subject to the terms and conditions of use (“Terms of Service” or “Terms”) set forth below. The term “you” refers to the person visiting the Site.
THE ACUSMART SERVICE IS INTENDED ONLY TO RECORD, DISPLAY, STORE, AND TRANSMIT ELECTRICAL SKIN RESISTANCE DATA (“RYODORAKU DATA”) YOU, AS THE USER OF THE ACUSMART SERVICE, ARE RESPONSIBLE FOR THE RYODORAKU DATA RECORDED AND STORED WITH THE ACUSMART SERVICE. THE ACUSMART SERVICE IS NOT INTENDED TO DIAGNOSE ANY HEALTH CONDITION OR TO ALERT ANY HEALTHCARE PROFESSIONALS OR PATIENTS, AUTOMATICALLY OR OTHERWISE, TO A MINOR OR POTENTIALLY SERIOUS HEALTH CONDITION OR ABNORMAL HEALTH CIRCUMSTANCE. THE ACUSMART SERVICE IS NOT INTENDED TO CONTINUOUSLY MONITOR YOUR HEALTH AND WE DO NOT GUARANTEE A RESPONSE BY ANY PHYSICIAN OR OTHER HEALTH CARE PROVIDER TO MESSAGES POSTED OR MEDICAL EVENTS REPORTED THROUGH THE ACUSMART SERVICE. ALTHOUGH ACUSMART MAY ENABLE YOU TO USE AN OPTIONAL HEALTH CONSULTING SERVICE OR ACCESS TO HEALTH FORUM INFORMATION AND FEEDBACK, ACUSMART DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE ACUSMART SERVICE. IT IS YOUR RESPONSIBLITY TO PRESENT YOUR MEDICAL DATA TO YOUR PHYSICIAN / HEALTH CARE PROVIDER FOR PROPER ANALYSIS AND DIAGNOSIS.
Unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution, these Terms provide that all disputes between you and ACUSMART will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE 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, and your claims cannot be brought as a class action. Please review Section 24 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with AcuSmart.
1. Use of AcuSmart Service. The AcuSmart Service is intended only to allow you to upload, view, share data, and use certain data pertaining to you as made available by the AcuSmart Service. You may not access or use the service for any other purpose. You may use the AcuSmart service, including any data presented to you on or by the AcuSmart Service, or otherwise hosted or stored by AcuSmart for you, only for lawful and appropriate purposes on your behalf or your immediate families behalf, and subject to your full compliance with these Terms and any other guidelines and policies applicable to the AcuSmart Service which AcuSmart may post from time to time.
2. Eligibility. You must be at least 18 years of age to sign up to use the AcuSmart Service. By agreeing to these Terms, you represent and warrant to us that:
1. You are at least 18 years of age
2. You have not previously been suspended or removed from AcuSmart Service
3. Your registration and your use of the AcuSmart Service is in compliance with all applicable laws and regulations in your local jurisdiction.
4. If you are using the AcuSmart Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Accounts and Registration. To access most features of the AcuSmart Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself including personal information such as your name., email address, password, gender, birthdate. You may choose to provide additional information to us. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-dale at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. if you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. Your account may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.
4. Payment. Access to the AcuSmart Service, or to certain features of the AcuSmart Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, within the terms of the Policy and to the fullest extent permitted under applicable law. If AcuSmart changes the fees for the AcuSmart Service, including by adding additional fees or chargers, AcuSmart will provide you advance notice of those changes. If you do not accept the changes, AcuSmart may discontinue providing the AcuSmart Service to you. AcuSmart will charge the payment method you specify at the time of purchase. You authorize AcuSmart to charge all sums as described in these Terms, for the AcuSmart Service you select, to that payment method. If you pay any fees with a credit card, AcuSmart may seek preauthorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase. The AcuSmart Service may including functionality for activating, updating, canceling recurring payments for periodic charges. If you activate or update recurring payments through the AcuSmart Service, you authorize AcuSmart to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the AcuSmart Service to update or cancel an existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
5. License. AcuSmart owns and operates the AcuSmart Service. The documents and other information and content available on the AcuSmart Service (the “Site Content”) are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. AcuSmart and its suppliers reserve all rights not granted in these Terms. Subject to the restrictions set forth in these Terms, AcuSmart grants you a limited, non-exclusive, non-transferable, non sublicensable, revocable license to install and use the App in object code format on devices that you own or control, solely for use with the AcuSmart Services. By downloading or using our app(s), you:
1. Acknowledge that the App is licensed, not sold to you; and
2. Acknowledge that third party terms and fees may apply to the use and operation of your device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payments of any and all such fees.
6. Clinician Consulting Service.
1. General. AcuSmart arranges for medical professionals and other consultants to provide professional consulting services (“Clinical Review Services”) to you through the AcuSmart Service for additional fees. With your request and consent AcuSmart sends to, transmits to, allows access to the consultant/ professional for purposes of advising you concerning health and health issues.
2. Reports. You may use the AcuSmart Service to generate reports of algorithmic outputs from AcuSmart Ryodoraku based algorithms using your data. Any reports from AcuSmart Ryodoraku based algorithms or from the Clinical Consulting Service serve the same purpose: to provide you more information with which to improve your health. This information is not a substitute for consulting your healthcare professional and does not suggest a diagnosis. These reports are intended as information for you and to be used a tool for you to improve your health personally taking into account your entire medical history. Diagnosis of your health conditions can only be accomplished by your physician. It is your responsibility to seek medical / health advice from your physician for proper examination, diagnosis and treatment.
3. Graphs. You have the option to obtain AcuSmart Ryodoraku testing graphs from the App at any time. Your AcuSmart Ryodoraku testing graphs are subject to multiple factors related to your health and activities. AcuSmart makes no guarantees of the accuracy or clinical significance of the interpretation of your data.
4. Restrictions. Due to telemedicine restrictions, your local jurisdiction may restrict your ability to use the Clinical Review Service. Since you are using a mobile device to collect your data, it is your responsibility to ensure the Clinical Review Service is legal according to your local telemedicine laws.
8. User Representations and Warranties.
1. AcuSmart users represent, warrant, and covenant to AcuSmart that you are in a jurisdiction that allows the use of the AcuSmart Service.
2. All users represent, warrant and covenant to AcuSmart that:
1. These Terms have been executed and delivered by you and constitute a valid and binding agreement with you, enforceable against you in accordance with their terms.
2. If you are using the AcuSmart Service on behalf of another entity, you are an authorized representative of that entity and have the authority and agree to bind the entity to these Terms;
3. You will not access or use the AcuSmart Service except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by AcuSmart, including those posted in the AcuSmart Service;
4. You will access and use the AcuSmart Services in full compliance with applicable law; and
5. All of the information, data and other materials provided by you in support of your account registration are accurate and truthful in all respects.
9. User Content
1. User Content Generally. Certain features of the AcuSmart Service may permit you, or other users to upload content to the AcuSmart Service, including messages, images, data, text, location information, and other types of information (“User Content”) and to publish User Content on the AcuSmart Service. You retain the copyrights, including any moral rights, and any other proprietary rights that you may hold in the User Content that you post to the AcuSmart Service.
3. Limited License Grant to Other Users. By posting or sharing User Content with other users of the AcuSmart Service or connecting your account to other entities, you grant those users and or other entities a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the AcuSmart Service.
4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content you affirm, represent and warrant that:
1. You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize AcuSmart and users of the AcuSmart Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by AcuSmart, the AcuSmart Service, and these Terms; and
2. Your User Content, and the use of your User Content as contemplate by these Terms, does not and will not:
1. infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
2. slander, defame, libel, or invade the right of privacy, publicity or other property right of any other person; or
3. cause AcuSmart to violate any law or regulation. You agree to pay for any and all royalties, fees, or other monies owing any person by reason of User Content you post on or through the AcuSmart Service.
1. User Content Disclaimer. AcuSmart is under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. AcuSmart may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the AcuSmart Service you will be exposed to User Content from a variety or sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against AcuSmart with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Term, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
2. Procedure for Unlawful User Content. If you believe that any User Content does not conform to these Terms, please notify us. We comply with the provisions of the comply with the Digital Millennium Copyright Act (The “DMCA”) applicable to our operations (17 U.S.C. 512 as amended). If you have an intellectual property rights-related complaint about material posted on the AcuSmart Service, you may contact us at:
Attn: Copyright Notification
1583 Main Dr.
Fayetteville, AR 72704
Please note that under applicable law, if you knowingly give false, misleading or inaccurate information that User Content is infringing, you may be subject to civil or criminal penalty.
Any notice under the Digital Millennium Copyright Act (the “DMCA”) alleging that materials hosted by or distribute through the AcuSmart Service infringe intellectual properly rights must include information required by the DMCA for such notices.
“Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the AcuSmart Service at least three times.
10. Prohibited Conduct. BY USING THE AcuSmart SERVICE YOU AGREE NOT TO:
A. Use or access the AcuSmart Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national or international law;
B. Conduct activities that may be harmful to others or that could damage AcuSmart’s reputation;
C. Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or disclosing personal information about another person;
D. Post, upload, or distribute marketing or advertising links or content, or any other User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
E. Use scrapers, robots, or other data gathering devices on or through the AcuSmart Service, or frame or otherwise provide the AcuSmart Service to third parties without AcuSmart’s permission.
F. Interfere with security-related features of the AcuSmart Service, including: (a) disabling or circumventing features that prevent or limit use or copying of any contents; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the App(s), except to the extent that such activity is expressly permitted by applicable law not withstanding this restriction;
G. Interfere with the operation of the AcuSmart Service or any user’s enjoyment of the AcuSmart Service, including by: (a) unloading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the AcuSmart Service; (c) attempting to collect personal information, including without limitation Ryodoraku analysis data or other health information, about another user or third party without their consent; or (d) interfering with or distributing any network, equipment, or server connected to or used to provide the user with restricted or unlawful information or content.
H. Perform any fraudulent activity including impersonating any person or entity, claiming false affiliation, accessing any other AcuSmart Service or account without permission, or falsifying your account registration information;
I. Modify, translate, or create derivative works, adaptations, or compilations of, or based on, the AcuSmart Service or part thereof, or use, copy or reproduce the AcuSmart Service or any part thereof other an as expressly permitted in these Terms;
J. Assign, sublicense, lease, grant a security interest in, or otherwise transfer the access granted under these Terms or any Material (as defined in Section 15) or any right or ability to view access, or use any Material; or
K. Attempt to do any of the acts described in this Section 10, or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Third-Party Services and Linked Websites. The Site may contain links to other web sites operated by third parties. Such third-party web sites are not under the control of AcuSmart and we are not responsible for the content fo any third party web site or any link contained in the third party web site.
12. Termination of Use; Discontinuation and Modification of the Service. You may terminate you account at any time by following the procedures detailed on the AcuSmart website or contacting customer service at email@example.com. If you violate any provision of these Terms, your permission from us to use the AcuSmart Service will terminate automatically. In addition, AcuSmart may in its sole discretion terminate your user account on the AcuSmart Service or suspend or terminate your access to the AcuSmart Service at any time if you violate any provision of these Terms, if we no longer provide any part of the AcuSmart Services or for any other reason with or without notice. We also reserve the right to modify or discontinue he AcuSmart Service at any time (including by limiting or discontinuing certain features of the AcuSmart Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we il have no liability on account of any change to the AcuSmart Service or any suspension or termination of your access to or use of the AcuSmart Service, provided that if AcuSmart ceases to operate the AcuSmart Service and terminates your acmes to the AcuSmart Service accordingly, then you will be entitled to a prorated refund of any prepaid fees that you have paid to AcuSmart for use of the AcuSmart Service. Upon termination of your account or this agreement for any reason, AcuSmart may at its option delete any data associated with your account.
B. Additional Terms. You use of the AcuSmart Service is subject to all additional terms, policies, rules, or guidelines applicable to the AcuSmart Service or certain features of the AcuSmart Service that may post on or link from the AcuSmart Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules hat are applicable to a particular feature or content on the AcuSmart Service, subject to Section 14. All Additional Terms are incorporated by this reference into, and made part of these Terms.
14. Modification to these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your right and obligations (“Material Modifications”), we will notify you of the modified Terms by email to the address you provided in your user profile. Material Modifications will be effective upon your acceptance of such modified. immaterial modifications are effective upon publications. Disputes arising under these Terms will be resolved in accordance with the versos of the Terms that was in affect at the time the dispute arose. Your sole and exclusive remedy if you do not agree with any modification to these Terms is to cancel your account. You may not amend or modify these Terms under any circumstances.
15. Ownership; Proprietary Rights. The AcuSmart Service is owned and operated by AcuSmart. the visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products software, services and all other elements of the AcuSmart Service (“Materials”) provided by AcuSmart are protected by intellectual property and other laws. All Materials included in the AcuSmart Service are the property of AcuSmart or out third-party licensors. Except as expressly authorized by AcuSmart, you may not make use of Materials. AcuSmart reserves all rights to the Materials not granted expressly in these Terms.
16. Subcontractors. You hereby consent to AcuSmart’s engagement of third parties (including AcuSmart affiliates) to perform, or support the performance of, all or any portion of the AcuSmart Service or the AcuSmart website.
17. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the AcuSmart Service (“Feedback”), then you hereby grant AcuSmart an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the AcuSmart Service and create other products and services.
18. Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the AcuSmart Service, and you will indemnify, hold harmless, and if so directed by AcuSmart, defend AcuSmart and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “AcuSmart Entities”) from and against every claim, liability, damage, loss, and expense including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of the AcuSmart Service; (b) your violation of any portions of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or public, confidentiality, other property, or privacy rigth; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties. THE AcuSmart SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE AcuSmart SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED. THE AcuSmart ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE AcuSmart SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROGH THE AcuSmart SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE AcuSmart SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALIN, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE RYODORAKU SKIN RESISTANCE DATA, HEALTH QUESTIONNAIRE DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE AcuSmart SERVICE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT AcuSmart IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE AcuSmart SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE AcuSmart ENTITIES DO NOT WARRANT HAT THE AcuSmart SERVCIE OR ANY PORTION OF THE AcuSmart SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE AcuSmart SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE AcuSmart SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE AcuSmart SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AcuSmart ENTITIES OR THE AcuSmart SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM THE USE OF OR ACCESS TO THE AcuSmart SITE, AcuSmart APP OR AcuSmart SERVICE. AS A RESULT OF USING THE AcuSmart SERVICE YOU ACKNOWLEDGE THAT YOU ARE SOLEY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE AcuSmart SERVICE, OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE AcuSmart SERVICE OR THE DOWNLOAD OR USE OF RELATED MATERIAL OR CONTENT. THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, SUCH AS LEGAL GUARANTEES OF CONFORMITY FOR GOODS OFFERED TO CONSUMERS IN CERTAIN JURISDICTIONS, AND YOU MAY HAVE RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability. IN NO EVENT WILL THE AcuSmart ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE AcuSmart SERVICE OR ANY MATERIALS OR CONTENT ON THE AcuSmart SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY AcuSmart ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT, LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. EXCEPT AS PROVIDED IN SECTION 241,E, IF AcuSmart CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE AcuSmart ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE AcuSmart SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE AcuSmart SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU THE THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Force Majeure. AcuSmart will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a results of a Force Majeure Event. To the fullest extent permitted under applicable law, for purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, divil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes, (5) telecommunications, network, computer, server or Internet downtime; (6) unauthorized access to AcuSmart’s information technology systems by third parties; or (7) other causes beyond the reasonable control of AcuSmart.
22. Governing Law and Competent Courts. To the fullest extent permitted pursuant to applicable law, these Terms are governed by the laws of the State of Arkansas without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under under these Terms, then you and AcuSmart agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Washington County, Arkansas for the purpose of litigating any dispute. We operate the AcuSmart Service from our office in the United States, and we make no representation that Materials included in the AcuSmart Service are appropriate or available for use in other locations.
24. Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
A. Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and AcuSmart in the most expedient and cost effective manner, you and AcuSmart agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are a consumer located in a jurisdiciton that prohibits the exclusive use of arbitration for dispute resolution. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in a court, and can be subject to very limited review by courts. Arbitration can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or related to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ACUSMART ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
B. Opt-Out of Agreement to Arbitrate. You can decline this agreement to by contacting firstname.lastname@example.org within 30 days of first accepting these Terms of Service and stating that you (including your first and last name, and email address used to register for the AcuSmart Service.) decline this arbitration agreement.
C. Exceptions. Despite the provisions of Section 24A, nothing in these Terms will be deemed to waive, preclude, or otherwise limits the right of either party to: (a) bring an individual action in small claims court; (b) pursue and enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
D. Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and AcuSmart will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available on line at www.adr.org. by calling the AAA at 1-800-778-7879, or by contracting AcuSmart.
E. Notice Process. A party who intends to seek arbitration must first send a written notice fo the dispute to the other party by credited U.S. Main or by Federal Express (signature required) or, only if such other party is not provided a current physical address, then by electronic mail (“Noitce”). AcuSmart’s address for notice is:
1583 Main Dr.
Fayetteville, AR 72704
The Notice must: (a) describe the nature and basis of the claim or dispute, and (b) set froth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or AcuSmart may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AcuSmart must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, AcuSmart will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by AcuSmart in settlement of the dispute prior to the arbitrator’s award; or (3) $1000.
F. Fees. If you commence arbitration in accordance with these Terms, AcuSmart will reimburse you for your payment of the filing fee, unless your claim is for more than #10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon, in Washington County, Arkansas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim of the relief sought n the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by AAA Rules. In that case, you agree to reimburse AcuSmart for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make ruling and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 day of the arbitrator’s ruling on merits.
G. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND AcuSmart AGREE THAT EACH MAY BRING CLAIMS AGAINST THE TOERH ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AcuSmart agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of representative or class proceeding, to the fullest extent permissible pursuant to applicable law.
H. Claims. The the fullest extent permitted under applicable law, no action arising out of, in connection with, related to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statues or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statue or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
I. Modifications to this Arbitration Provision. If AcuSmart makes any future change to this arbitration provision, other than a change to AcuSmart’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to AcuSmart’s address for Notice, in which case your account with AcuSmart will be immediately terminated and this arbitration provision, as in affect immediately prior to the change you rejected will survive.
J. Enforceability. If Section 24G is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms.
26. NOTICE REGARDING APPLE. You acknowledge that these Terms are between yo and AcuSmart only, not with Apple, and Apple is not responsible for the APP and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price of the App to you, if any; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever, with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App ro possession and/or use of the App, including, but not limited to (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for investigation, defense, settlement and discharge of any third-party terms, when using the App. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary of the Terms. You hereby represent and warrant that (1) 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 (3) you are not listed on any U.S. Government list of prohibited or restricted parties.
27. Contact Information. The AcuSmart Service is offered by AcuSmart. You may contact us by emailing us at email@example.com.
Last revised 1-8-2021