SigmaMD Terms of Service
Updated May 15, 2023
Important notice regarding arbitration for U.S. customers: when you agree to these terms you are agreeing (with limited exception) to resolve any dispute between you and Sigmoid through binding, individual arbitration rather than in court. Please review carefully Section 21 “Dispute Resolution” below for details regarding arbitration.
Use of the Services is not for emergencies. If you think you have a medical emergency, call 911 or go to the nearest open clinic or emergency room. The Services might not be appropriate for all medical conditions or concerns.
1. Our Services
Our Services provide a variety of care management services, which are subject to availability (including availability of third-party websites, content, materials or other resources) and may include, without limitation:
- Connecting you to patient portals to retrieve and download your health data and health insurance data.
- Assisting with the entry of your health data.
- Accessing patient education materials and preventive information.
- Providing a directory listing of physicians and other licensed professionals who are registered with Sigmoid and utilize our Services to deliver in-person care and telehealth services to their patients (“Clinicians”).
- Providing price comparison and cost of care estimation tools for services offered by Clinicians and other physicians and other licensed professionals, lab services, medications, imaging, and other clinical products or services.
- Conducting patient intake assessments through questionnaires to facilitate symptom-based triage, utilizing patient-provided responses.
- Facilitating chat-based and video-based communication with Clinicians.
- Assisting with the generation of diagnostic orders and retrieval of results, e-prescriptions, and referrals to Clinicians.
- Collection and processing of payments on behalf of Clinicians and other providers registered with Sigmoid for clinical products and services rendered to or on behalf of patients.
Sigmoid does not guarantee the availability of any feature, function, price, product, or service of the Services. We may from time to time add new features to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one or any part of the existing Services. Under no circumstances will Sigmoid be liable for any suspension or discontinuation of any of the Services or portion thereof, and any use of new features or services will be governed by these Terms.
2. Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
4. Changes to these Terms or the Services
We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site or the App, or sending other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
5. Who May Use the App?
You may use the App only if you are 18 years or older (or the age of majority where you’re located). You may download and install the App through an invitation from your Clinician or by downloading the App from an App Store. To use the App, you’ll need to create an account and provide certain basic information about yourself (including your mobile number, email, address, demographic information and medical history). We may also require identification verification. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account.
6. Your Relationship with Sigmoid
Sigmoid is a technology company that makes available the Site and App to help you manage your health information and communicate with Clinicians. In connection with the Services, Sigmoid provides certain technological and other administrative support for professional practices (“Practices”) that employ or contract with Clinicians.
Sigmoid acts solely as a technology platform to provide you with the Services, including connecting you with Practices and the Clinicians. We do not control or interfere with the practice of medicine or other licensed professional services by Practices or any Clinicians, each of whom is solely responsible for the medical care and treatment he or she provides to you, whether or not provided through the Site or App. We have no control over, and cannot guarantee the availability of, any Clinician at any particular time. We will not be liable for timeliness of chat response, cancelled or otherwise unfulfilled appointments, diagnosis or treatment provided, the quality of care, the cost of care, or any other injury or loss resulting or arising from, or related to, your use of the Services.
By accepting these Terms, you acknowledge and agree that Sigmoid is not a healthcare provider and that by using the Services, you are not entering into a doctor-patient or other healthcare provider-patient relationship with Sigmoid. By connecting with a Clinician through the Services, you may, however, be entering into a doctor-patient or other health care provider-patient relationship with a Practice or one or more Clinicians. Practices and Clinicians may require that you enter into a separate agreement between you and the Practice or Clinician (as the case may be), which such agreement may be presented through the Services or accessible through the Services via links to third-party websites or other resources. Any terms, conditions and policies of the Practices and Clinicians are between you and the applicable Practice or Clinician (as the case may be), and are additional to, and do not replace or supersede, these Terms.
By accepting the Terms, you understand that Practices and Clinicians may send you messages, reports, and emails outside or inside the Services regarding your diagnosis or treatment. You further understand and agree that it is your responsibility to monitor and respond to these messages, reports, and emails and that Sigmoid, the Practices, and the Clinicians are not responsible in any way for, and you will not hold Sigmoid, any Practice, or any Clinician liable for, any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages, reports, and emails or for your failure to comply with any treatment information or instructions from the Practice or your Clinician(s). Delivery of messages, reports, and emails is subject to effective transmission from your network operator and appropriate selection of your notification settings; accordingly, you understand and agree that Sigmoid is not liable for delayed or undelivered messages, reports, and emails.
7. Disclosures Regarding Content and Clinicians
- The content on the Services is provided for informational and educational purposes only, and may be generated through Sigmoid’s or its third-party licensors’ algorithms (for example, price comparison and cost of care estimates) or artificial intelligence (conversational and generative tools) used in connection with providing the Services (for example, automated responses to intake questionnaire responses, automated notes generation, automated post-encounter follow-ups for adherence to the care plan, etc.). Price comparison and cost of care estimates provided by the Services may not be current or accurate, and actual costs may vary. Any content on the Services is not marketed, promoted or otherwise intended to be used to diagnose any disease or other condition, or to cure, mitigate, treat, or prevent any disease. For example, the content on the App may include artificial intelligence-based suggestions, preventive information, and searchable educational articles and videos on various health topics. Such content is not a replacement or substitute for medical care or specific professional advice, recommendation, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding your health. Never disregard professional medical advice or delay in seeking it because of information provided through the Services. Sigmoid does not refer, recommend or endorse any particular Practice, Clinician, test, procedure, treatment, opinion, or other information that may appear through the Services. Reliance on any content provided through the Services by Sigmoid or other third-party content providers is at your own risk and may be subject to additional terms, conditions, and policies of the third-party content provider.
- You are expected to seek follow-up or emergency care as needed or recommended by a Clinician, and you should continue to consult with your Clinician and any other health care providers as needed or recommended. Additionally, unexpected events (including unavailability of third-party services incorporated in, used by, or accessible through the Services) may disrupt our electronic communication with you and we may not be able to contact you as quickly as we would like to due to uncontrollable circumstances. Moreover, please be aware that Clinicians tailor their response to your specific situation, taking into account the information you have shared, and their response may not be appropriate for other similarly situated patients.
- Sigmoid or its designee takes certain limited steps at the time of their registration to verify that Clinicians that register with Sigmoid hold licenses or certifications applicable to provide care to you through the Services, but Sigmoid does not actively monitor the status of such licenses or certifications. Sigmoid does not ensure that Clinicians (i) possess all valid, unexpired, unrevoked and unrestricted licenses, authorizations, and certifications as may be required to provide care (including telehealth services) to you; (ii) have and maintain appropriate and applicable insurance coverages; and (iii) do not appear on a sanctioned or excluded party list as prepared by the U.S. Health and Human Services Office of Inspector General (OIG), the U.S. General Services Administration (GSA), or comparable state agencies, or are otherwise not excluded, debarred, suspended or otherwise ineligible to participate in federal or state health care programs. Any information or advice received from a Clinician comes from the Clinician or Practice and Sigmoid is not responsible for the quality and appropriateness of any care that the Clinician or Practice renders to you through the Services. While Sigmoid may facilitate your selection of and communications with the Clinician, it is the Clinician providing the professional services or clinical advice. You can report a complaint relating to any care services provided by a Clinician by contacting the applicable professional licensing board in your state, or by contacting Sigmoid directly. Any clinical records created as a result of your use of the Services will be maintained by Sigmoid or its service providers on behalf of the Clinician with whom you consult, for a period that is no less than the minimum number of years that such records are required to be maintained under applicable state and federal law.
- Sigmoid can facilitate chat-based or video-based communications between you and Clinicians in order for you to receive telehealth services from, or coordinate in-person visits with, Clinicians. The information exchanged between Clinicians and you may be used by the Clinicians for diagnosis, therapy, treatment, follow-up care, consultation, education, and care management, and by yourself for self-management of your health care.
- There are potential risks associated with care (including telehealth services) provided by Clinicians through the Services:
- Information available to the Clinicians may not be sufficient to make a correct diagnosis or other professional decisions. Information that can be obtained only by in-person, physical examination or by being physically present with the patient may not be available. In some cases, the Clinician may conclude that the information transmitted through the Services is not sufficient (e.g., poor resolution of images, delayed delivery of chat or other messages, incomplete health data, etc.) or that on some other basis the nature of your issue is such that it does not allow for the care to be provided appropriately by the Clinician without an in-person evaluation.
- Any technical failure or power outage could delay or disrupt communications and hinder, delay or erase the ability to assist you. These limitations could result in incorrect assessment or diagnosis, which in turn could lead to care that is not helpful, or that could be harmful or cause other problems. Clinicians communicating with you through the Services are aware of these limitations and take them into account in making professional decisions within the scope of their practice as a licensed clinician, but the risk of error nevertheless exists.
- The network and software security protocols we use could fail, and there could be a breach of privacy of your health information. Unfortunately, the transmission of information via the internet is not completely secure. We cannot guarantee the security of your personal information transmitted to, or through, our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures employed by the Services.
- In some cases, applicable laws may prevent Clinicians from providing the care (including telehealth services) you desire through the Services. When that is the case, the Clinician will refer you to an appropriate provider who can provide the care you desire.
You are under no obligation, of course, to connect with a Clinician via the Services. You may obtain conventional, in-person care.
8. Limited Use and Availability
Our Services may be subject to state or federal regulations and may change from time to time due to changes in applicable regulatory requirements. In some cases, the Services may not be the most appropriate way for you to manage your health and wellness, or provide information to, communicate with or seek medical care and treatment from a healthcare provider. For example, certain medical conditions may require an in-person procedure or a healthcare provider other than your Clinician, or your Clinician may determine that your diagnosis or treatment requires an in-person office visit or is otherwise not appropriately addressed through use of the Services. In such a case, you may receive notification that you will be unable to use the Services for the particular issue you submitted and may be provided with additional information regarding next steps.
9. Transactions and Payments
The Services may collect and process payments on behalf of third-party service providers, including Clinicians and other providers of clinical products and services, allow you to make purchases for certain products and services provided by these Clinicians and other third-party service providers, and facilitate certain payment transactions for you in connection with such purchases (each, a “Clinician-Related Transaction”). The Services may also collect and process payments on behalf of Sigmoid, allow you to make purchases for certain products and services provided by Sigmoid that are not the subject of Clinician-Related Transactions, and facilitate certain payment transactions for you in connection with such purchases (each, a “Sigmoid-Related Transaction”; and together with Clinician-Related Transactions, “Transactions”). You expressly authorize us (or our third-party payment processor) to charge you for each of your Clinician-Related Transactions on behalf of the Clinician or other third-party service provider and for each of your Sigmoid-Related Transactions on behalf of Sigmoid. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable. All fees and applicable taxes, if any, are payable in United States dollars.
- Cancelling a Transaction.
UNLESS SPECIFIED OTHERWISE IN THE CANCELLATION POLICY PRESENTED THROUGH THE SERVICES AT THE TIME OF YOUR TRANSACTION, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE TRANSACTION OR RECEIVE A REFUND FOR YOUR TRANSACTION AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction.
We appreciate feedback, comments, testimonials, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you. Sigmoid will not publish your name or other identifying information in connection with any testimonial unless you have given us your prior approval. Sigmoid may republish any publicly available review, comment, or testimonial about Sigmoid or the Services on the Site or in other media.
11. Your Content
- User Content.
Our Services may allow you to submit, store, or share information, data, or content such as text (in posts or communications with Clinicians or others), files, assessments, self-report measures, lab samples, laboratory and imaging results, prescriptions and pharmaceutical documents, medical records and other health data (including any retrieved from any third-party websites or other resources accessible through the Services), documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content.” Sigmoid does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
- Permissions to Your User Content.
- Your Responsibility for User Content.
You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Sigmoid on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- Removal of User Content.
You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. Even upon termination of your account, Sigmoid may retain your medical records subject to applicable laws, which may not be removed from the Sigmoid system/platform. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
- Sigmoid’s Intellectual Property.
We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
12. Rights and Terms for the App
- App License.
If you comply with these Terms, Sigmoid grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to other users through any means.
- App Stores.
This Section applies to the App that you acquire from third-party application stores (e.g., the Apple App Store, Google Play App Store, or other third-party platform from which you download and install the App) (each, together with its provider, an “App Store”). The App Store has no obligation to furnish any maintenance and support with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store, and the App Store will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the App. The App Store is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The App Store is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. The App Store and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, the App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. 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. You must also comply with any applicable third-party terms of service when using the App.
13. Service Text Messages
If you change or deactivate the phone number you provided to Sigmoid, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Sigmoid’s standard SMS messages unless you also unsubscribe via the above procedures.
14. General Prohibitions and Sigmoid’s Enforcement Rights.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content that: (i) constitutes health data or health insurance data of any individual other than yourself or infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Sigmoid’s name, the SigmaMD name or any other name used by Sigmoid, any Sigmoid trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sigmoid’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Sigmoid’s computer systems, or the technical delivery systems of Sigmoid’s providers;
- Attempt to probe, scan or test the vulnerability of any Sigmoid system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Sigmoid or any of Sigmoid’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and search agents provided by Sigmoid or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Sigmoid trademark, logo URL or product name without Sigmoid’s express written consent;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Stalk or harass any Sigmoid personnel or Clinician either through or outside your use of the Services;
- Report false or fictitious emergencies, whether relating to yourself or others;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Sigmoid is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
15. Third-Party Services
- The Services may allow you to access third-party websites, content, materials or other resources (including those made available by Practices and Clinicians). We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources. We may incorporate third party software or materials as part of certain of the Services, including without limitation open source third party software. Your use of such third-party software or materials is subject to any and all applicable additional terms and conditions governing such use provided by the third-party. Where applicable, additional notices relating to the third-party may be provided by us, which for example may contain attribution and disclaimer notices applicable to the third-party software or content.
- You acknowledge and agree that Sigmoid incorporates, connects to, or integrates with certain services provided by its third-party providers and licensors (“3P Providers”, and such services provided by them, as incorporated in, connected to, or integrated with the Services, the “3P Services”). You agree that the provisions set forth in Section 6, Section 7, and Section 17 apply with respect to the 3P Providers and the 3P Services. Each 3P Provider owns all right and title in and to the intellectual property comprising its 3P Services. You will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or services obtained from or through the 3P Services.
We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time via the account management page of the Site or the App, whereupon Sigmoid will remove your access to the Services, and Sigmoid will cease proactively contacting you. However, even upon termination of your account, Sigmoid may retain your medical records subject to applicable laws, which may not be removed from the Sigmoid system/platform.. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 6, 7, 8, 10, 11, and 14 through 22
17. Warranty Disclaimers
The Services are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any implied warranties of merchantability, fitness for particular purpose, quiet enjoyment and non-infringement, and any warranties arising out of course of dealing or usage of trade. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, relevance, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services. General advice and other content relayed through the Services is provided for informational and educational purposes only and is not intended to replace or substitute any medical care or specific professional advice, diagnosis or treatment. Sigmoid makes no representations or warranties regarding, and will have no responsibility for, diagnosis or treatment provided, the quality of care, the cost of care, or any other injury or loss resulting or arising from, or related to, your use of the Services.
You will indemnify and hold Sigmoid and its officers, directors, employees, contractors, service providers, licensors, and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
19. Limitation of Liability
- To the maximum extent permitted by law, neither Sigmoid nor its service providers involved in creating, producing, or delivering the Services, will be liable for any incidental, special, exemplary or consequential damages, or damages for lost profits, lost revenues, lost savings, lost business opportunity, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services of any kind arising out of or in connection with these Terms or from the use of or inability to use the Services, whether based on warranty, contract, tort (including negligence), product liability, professional malpractice or any other legal theory, and whether or not Sigmoid or its service providers have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
- To the maximum extent permitted by law, in no event will Sigmoid’s total liability arising out of or in connection with these Terms or from the use of or inability to use the Services exceed the amounts you have paid or are payable by you to Sigmoid for use of the Services or one hundred dollars ($100), if you have not had any payment obligations to Sigmoid, as applicable.
- The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Sigmoid and you.
20. Governing Law and Forum Choice
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 21 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Sigmoid are not required to arbitrate will be the state and federal courts located in Santa Clara County, and you and Sigmoid each waive any objection to jurisdiction and venue in such courts.
21. Dispute Resolution
- Mandatory Arbitration of Disputes.
We each agree that any dispute, claim or controversy arising out of or relating to the use of the Services, these Terms or the breach, termination, enforcement, interpretation or validity thereof (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Sigmoid agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Sigmoid are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
As limited exceptions to Section 21(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
- Conducting Arbitration and Arbitration Rules.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Injunctive and Declaratory Relief.
Except as provided in Section 21(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- Class Action Waiver.
You and Sigmoid agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
With the exception of any of the provisions in Section 21(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
22. General Terms
- Reservation of Rights.
Sigmoid and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
- Entire Agreement.
These Terms constitute the entire and exclusive understanding and agreement between Sigmoid and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Sigmoid and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Sigmoid’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Sigmoid may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Sigmoid under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
- Waiver of Rights.
Sigmoid’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sigmoid. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
- Limitation of Claims.
No action arising under or in connection with these Terms, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred.
23. Contact Information
If you have any questions about these Terms or the Services, please contact Sigmoid at email@example.com