THE KALIBER SERVICE IS AVAILABLE FOR REKAP USERS IN THE UNITED STATES OF AMERICA. HEALTHCARE PROVIDER USERS OF THE KALIBER SERVICE ARE RESPONSIBLE FOR THE DATA RECORDED AND STORED BY THE KALIBER SERVICE. PATIENT USERS ARE RESPONSIBLE FOR THE DATA THEY UPLOAD THAT IS RECORDED AND STORED BY THE KALIBER SERVICE. THE REKAP SERVICE IS NOT INTENDED TO DIAGNOSE ANY HEALTH CONDITION OR AUTOMATICALLY ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS HEALTH CONDITIONS. THE KALIBER SERVICE IS NOT INTENDED FOR CONTINUOUS MONITORING AND WE DO NOT GUARANTEE A RESPONSE BY ANY PHYSICIANS TO MESSAGES POSTED OR MEDICAL EVENTS REPORTED THROUGH THE KALIBER SERVICE. ALTHOUGH KALIBER SERVICE MAY ENABLE YOU TO CONNECT YOUR ACCOUNT TO YOUR HEALTHCARE PROVIDER THROUGH OUR REKAP SERVICE, KALIBER DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE REKAP SERVICE. IT IS YOUR RESPONSIBILITY TO PRESENT YOUR MEDICAL DATA TO YOUR PHYSICIAN 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 Kaliber 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 21 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Kaliber.
1. Use of the Kaliber [Rekap] Service. The Kaliber Service is intended only to allow the user (the patient or healthcare provider) to upload, view, share data with its healthcare professional or its patients, and use certain data as made available by the Kaliber Service. You may not access or use the Service for any other purpose. You may use the Kaliber Service, including any data presented to you on or by the Kaliber Service, or otherwise hosted or stored by Kaliber for you, only for lawful and appropriate purposes on your own behalf, and subject to your full compliance with these Terms and any other guidelines and policies applicable to the Kaliber Service which Kaliber may post from time to time.
2. Information Tool Only. The Software provides an information management tool only. The Software does not have the ability to diagnose disease, prescribe treatment, or perform any other tasks that constitute the practice of medicine or any other professional service. All practice management and patient care decisions made using the Software, and the consequences of such decisions, are the exclusive responsibility of the health care professionals who use the Software. Use of the Software and the data generated by the Software must never be a substitute for the health care professional’s personal knowledge of a patient, the patient’s medical history, and good clinical judgment.
3. Eligibility. You must be at least 16 years of age to use the Kaliber Service without parental or guardian consent. However, if you are under 18 years of age, and need parental or guardian consent for surgery, you will also need parental or guardian consent to use the Kaliber Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 16 years of age, (b) you have not previously been suspended or removed from the Kaliber Service, and (c) your registration and your use of the Kaliber Service is in compliance with all applicable laws and regulation in your local jurisdiction. If you are using the Kaliber 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.
5. License. Kaliber owns and operates the Kaliber Service. The documents and other information and content available on the Kaliber 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. Kaliber and its suppliers reserve all rights not granted in these Terms.
Subject to the restrictions set forth in these Terms, Kaliber grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Rekap on devices that you own or control, solely for use with the Kaliber Services.
6. User Representations and Warranties.
(A) You represent, warrant, and covenant to Kaliber that you are a resident of the USA.
(B) You represent, warrant and covenant to Kaliber 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 Kaliber Service on behalf of another entity, you are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms; (3) you will not access or use the Kaliber Service except as expressly permitted by these Terms and any additional instructions, guidelines, or policies issued by Kaliber, including those posted in the Kaliber Service; (4) you will access and use the Kaliber Service 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.
7. User Content.
(A) User Content Generally. Certain features of Kaliber Service may permit you, your healthcare provider, or other users to upload content to the Kaliber Service, including messages, images, data, text, location information and other types of information (“User Content”) and to publish User Content on the Kaliber 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 Kaliber Service; provided that if you choose to link your account to our Rekap service or information systems offered by your healthcare provider, any data provided to your healthcare provider may become part of your health record, and that copy of such data may be owned and/or controlled by your healthcare provider to the extent provided under applicable law.
(C) Limited License Grant to Other Users. By posting or sharing User Content with other users of the Kaliber Service, or connecting your account to your healthcare provider through our Rekap service, you grant those users and/or healthcare providers a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Kaliber Service.
(D) 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:
(i) You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Kaliber and users of the Kaliber 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 Kaliber, the Kaliber Service, and these Terms; and
(ii) Your User Content, and the use of your User Content is contemplated by these Terms, does not and will not (i) 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, (ii) slander, defame, libel or invade the right of privacy, publicity or other property rights of any other person, or (iii) cause Kaliber 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 Kaliber Service.
(E) User Content Disclaimer. We are 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. Kaliber 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 Kaliber Service you will be exposed to User Content from a variety of 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 Kaliber with respect to User Content. We expressly disclaim any and all liability in connection with User Content, including all Rekap content (the Rekap report, videos, photos and other content), to the fullest extent permitted under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, 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.
(F) 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 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 Kaliber Service, you may contact our designated agent at the following address:
ATTN: Legal (Copyright Notification)
188 King Street
San Francisco, CA
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 distributed through the Kaliber Service infringe intellectual property rights must include all of the information required by the DMCA for such notices.
Repeat infringers: Kaliber may promptly terminate without notice the accounts of users that are determined by Kaliber to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Kaliber Service at least three times.
8. Prohibited Conduct. BY USING THE KALIBER SERVICE YOU AGREE NOT TO:
(A) Use or access the Kaliber Service (a) from a jurisdiction where such use or access is ot authorized, (b) for any illegal purposes, 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 Kaliber’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 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 Kaliber Service, or frame or otherwise provide the Kaliber Service to third parties without Kaliber’s permission;
(F) Interfere with security-related features of the Kaliber Service, including by (a) disabling or circumventing features that prevent or limit use or copying of any content; 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 notwithstanding this restriction;
(G) Interfere with the operation of the Kaliber Service or any user’s enjoyment of the Kaliber Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Kaliber Service; (c) attempting to collect personal information, including without limitation health information, about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Kaliber Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
(H) Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Kaliber 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 Kaliber Service, or part thereof, or use, copy, or reproduce the Kaliber Service or any part thereof other than as expressly permitted in these Terms;
(J) Assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Materials (as defined in section 12) 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.
9. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by following the procedures detailed on the Kaliber website or contacting customer service at email@example.com. If you violate any provision of these Terms, your permission from us to use the Kaliber Service will terminate automatically. In addition, Kaliber may in its sole discretion terminate your user account on the Kaliber Service or suspend or terminate your access to the Kaliber Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Kaliber Services or for any other reason, with or without notice. We also reserve the right to modify or discontinue the Kaliber Service at any time (including by limiting or discontinuing certain features of the Kaliber Service) temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Kaliber Service or any suspension or termination of your access to or use of the Kaliber Service, provided that if Kaliber ceases to operate the Kaliber Service and terminates your access to the Kaliber Service accordingly, then you will be entitled to a pro-rated refund of any prepaid fees that you have paid to Kaliber for use of the Kaliber Service. Upon the termination of your account or this agreement for any reason, Kaliber may at its option delete any data associated with your account.
10. Privacy; Additional Terms
(B) Additional Terms. Your use of the Kaliber Service is subject to all additional terms, policies, rules or guidelines applicable to the Kaliber Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Kaliber Service, subject to Section 11. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
(D) De-Identified Data. Kaliber may de-identify and aggregate data, including Protected Health Information (as such term is defined by HIPAA), and any other data provided in connection with this Agreement for any lawful purpose, including, but not limited to, for purposes of providing or enhancing product and services offerings to its customers, for analytical, statistical or benchmarking purposes and for purposes of extracting, obtaining and providing information related to the use of the Software, provided that such data is compiled and presented in a manner that does not permit identification of any individual and has been de-identified in accordance with Applicable law (collectively, “De-Identified Data”). All right, title and ownership of De-Identified Data (including all derivative works thereof) is and shall remain solely and exclusively vested in Kaliber Corporation, including all proprietary rights relating thereto.
11. Modifications to these Terms. We reserve the right, at our discretion, to change these Terms on an ongoing basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or 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 Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole and exclusive remedy if you do not agree with any modifications to these Terms is to cancel your account. You may not amend or modify these Terms under any circumstances.
12. Ownership; Proprietary Rights. The Kaliber Service is owned and operated by Kaliber. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Kaliber Service (“Materials”) provided by Kaliber are protected by intellectual property and other laws. All Materials included in the Kaliber Service are the property of Kaliber or our third party licensors. Except as expressly authorized by Kaliber, you may not make use of the Materials. Kaliber reserves all rights to the Materials not granted expressly in these Terms.
13. Subcontractors. You hereby consent to Kaliber’s engagement of third parties (including Kaliber’s affiliates) to perform, or support the performance of, all or any portion of the Kaliber Service or the Kaliber website.
14. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Kaliber Service (“Feedback”), then you hereby grant Kaliber 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 Kaliber Service and to create other products and services.
15. Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Kaliber Service, and you will indemnify, hold harmless, and, if so directed by Kaliber, defend Kaliber and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Kaliber 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 Kaliber Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement reference in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (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, Kaliber reserves 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 the matter), and in that case, you agree to cooperate with our defense of that claim.
16. Disclaimers; No Warranties. THE KALIBER SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KALIBER SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE KALIBER ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE KALIBER SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KALIBER SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE KALIBER 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 DEALING, USAGE, OR TRADE, AND (C) ANY WARRANTY AS TO WHETHER THE DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE KALIBER SERVICE IS TRUE, COMPLETE, OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT KALIBER 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 KALIBER SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE, THE KALIBER ENTITIES DO NOT WARRANT THAT THE KALIBER SERVICE OR ANY PORTION OF THE KALIBER SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE KALIBER 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 KALIBER SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KALIBER SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE KALIBER ENTITIES OR THE KALIBER SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE KALIBER SERVICE, YOUR DEALING WITH ANY OTHER KALIBER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KALIBER SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE KALIBER SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE KALIBER SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE KALIBER SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE KALIBER SERVICE OR THE DOWNLOAD OR USE OF THAT 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, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
17. Limitation of Liability. IN NO EVENT WILL THE KALIBER 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 OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE KALIBER SERVICE OR ANY MATERIALS OR CONTENT ON THE KALIBER SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY KALIBER 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 21(E), IF KALIBER CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE KALIBER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE KALIBER 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 KALIBER 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 TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMTS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATIONS 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.
18. Force Majeure. Kaliber 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 result 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, civil disorders or rebellion; (3) quarantines or embargoes; (4) labor strikes; (5) telecommunications, network, computer, server, or internet downtime; (6) unauthorized access to Kaliber’s information technology systems by third parties; or (7) other causes beyond the reasonable control of Kaliber.
19. 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 California without regard to conflicts of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Kaliber agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We operate the Kaliber Service from our offices in the United States, and we make no representation that Materials included in the Kaliber Service are appropriate or available for use in other locations.
21. Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT WILL REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF.
(A) Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and Kaliber in the most expedient and cost effective manner, you and Kaliber agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are a consumer located in a jurisdiction 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 court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating 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 KALIBER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
(C) Exceptions. Despite the provisions of Section 21(A), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state or local agency, if that action is available; or (c) 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 Kaliber 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 online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Kaliber.
(E) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address then by electronic mail (“Notice”). Kailber’s address for Notice is: Kaliber Labs, 188 King Street, San Francisco, CA 94107. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth 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 Kaliber may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kaliber must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
(F) Fees. If you commence arbitration in accordance with these Terms, Kaliber 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 San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration is conducted: (a) solely on the basis of documents, submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) through an in-person hearing as established by the AAA Rules in the County of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in 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 the AAA Rules. In that case, you agree to reimburse Kaliber 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 rulings 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 days of the arbitrator’s ruling on the merits.
(G) No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND KALIBER 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, unless both you and Kaliber agree otherwise, 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, the fullest extent permissible pursuant to applicable law.
(H) Claims.To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating 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 statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute 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 Kaliber makes any future change to this arbitration provision, other than a change to Kaliber’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Kaliber’s address for Notice, in which case your account with Kaliber will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected shall survive.
(J) Enforceability. If Section 21(G) is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void, and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
Last revised 8/30/2021.