Effective Date: August 26, 2020 Last Updated: August 26, 2020
1. Types of Personal Information Collected
We collect a range of Personal Information. “Personal Information” is information that identifies, relates to, describes, or is reasonably capable of being associated with or linked to an individual. When we combine Personal Information with other information (i.e. information that does not, on its own, identify you), we treat the combined information as Personal Information.
Contact Information – If you register for an account, sign up to receive information from us, or submit an inquiry, then we may collect your contact and mailing information. This may include your email name, address, and phone number.
Demographic Information – As part of our registration process and through the course of our services, we may also collect demographic information, such as which could include your age, gender, and ethnicity, among other pieces of information.
Account Information – If you create an account with us, you will create and provide us with a username and password, and may upload other personal information through our customer portal. We may also collect your purchase information.
Employment Information – If you apply for employment with MS Pen, we will collect your employment and work history, as well as personal information related to your potential employment. This may include your education and employment history, address and contact information, demographic information, and any other information included in your resume or application.
Location Data – While navigating our Platform your mobile device or browser may share you’re your location data, both through WiFi and GPS. MS Pen will collect this information based on the settings of your phone and browser.
Usage Information – We may also collect usage and device information when you visit our Platform. This may include information about the browser, operating system, and/or device identifier for the device you are using, your ISP and IP information, your navigation activity on the Platform, as well as the websites that you came from and the site you visit when you leave.
2. Method of Information Collection
We collect personal information in a variety of ways. We collect information directly from you; for example, when you register an account on the Platform, submit a job application, or correspond with us through the Platform.
We also collect information from third parties. For example, we work with business partners, subcontractors in technical and delivery services, advertising networks, analytics providers, and search information providers.
We also collect information from you passively. Our Platform uses tracking tools like cookies, pixels, and Bluetooth Beacons. We do this both on our Platform and in emails that we send to you. Through these tools we collect information about users over time when you use our Platform. This collection includes usage and browser information. We may also have third parties collect Personal Information in this way. For more information about the trackers that we use, please see Section 6 of this Policy. Additionally, if you enable location data on your device, this data will be collected passively based on the location settings on your device.
3. Combining Information
We may combine Personal Information we obtain. For example, we may combine information that we have collected online with information that we have collected offline, for instance during calls between you and our support team. We may also combine information that we have collected across other third-party sites or from other third parties with information we already have. Finally, we combine information across devices.
4. How We Use Personal Information
We may also use your Personal Information to improve our Platform, products, and services. This may include using your information to customize your experience with us. We may also use your Personal Information for the security of the Platform and our company, our customers, and other third parties. We may also use your Personal Information to protect against fraud and other malicious activity.
We may also your information for marketing purposes. For example, we may send you information about new features on the Platform, new services we offer, and special offers. When legally permitted, this may also include using your information to serve you ads and to tell you about products or offers available through third parties we think you might find interesting. These might be our own offers, or third party offers, or products we think you might find interesting.
Finally, we may use your information for other purposes, as permitted by law.
5. Sharing Personal Information
We may share your Personal Information in the following circumstances:
Within MS Pen – We may share your Personal Information within our family of companies.
Service providers – When we hire a service provider to help operate the Platform or our business, we may give access to Personal Information as necessary to perform the service for MS Pen. This may include service providers that operate our website, send our communications, or run our promotions.
Business Partners – MS Pen may share Personal Information to our trusted business partners. For example, we may share your Personal Information with a company when we co-sponsor a promotion or service. These partners may use your information to, among other things, send you information or contact you about their services and products.
Merger or sale - If and when MS Pen is involved in a merger, acquisition, or any form of transfer or sale of some or all of its business, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding. Personal Information may be transferred along with the business. Where legally required we will give you prior notice and if you have a legal right to do so, an opportunity to object to this transfer.
Purposes described to you – We may share your Personal Information for other purposes, as we describe to you.
6. Cookies and Other Technologies
We collect information about users over time on the Platform by using several common types of cookies and other tracking technologies including web beacons, pixels, and flash cookies. We also have third parties that collect information in this way on our behalf and for their own purposes. Cookies are small files that download when you access certain websites. For more information about cookies visit: http://www.allaboutcookies.org/. Web beacons, pixels, and other tracking technologies operate independent of cookies.
To assist us with analyzing our website traffic through cookies and similar technologies, we use analytics services such as Google Analytics. For more information on Google Analytics’ processing of your information, please see "How Google uses data when you use our partners' Platforms or apps." You can opt out of Google Analytics by installing Google’s opt-out browser add-on.
We may use a variety of cookies:
|Types of Cookies||Description|
Required cookies are essential for the Platform to function properly and for you to navigate our Site and use its features, such as accessing secure areas of the Platform and using our services.
These cookies collect information about how you use the Platform, including which pages you go to most often and if they receive error messages from certain pages. These cookies do not collect information that individually identifies you. All information these cookies collect is aggregated and anonymous. It is only used to improve how the Platform functions and performs.
Functionality cookies allow the Platform to remember information you have entered or choices you make (such as your username, language, or your region) and provide enhanced, more personal features. These cookies also enable you to optimize your use of the Platform after logging in. These cookies can also be used to remember changes you have made to text size, fonts and other parts of web pages that you can customize.
Targeting or Advertising
By way of example, as you visit the Platform, advertising cookies may be placed on your computer so that we can understand what you are interested in. Our advertising partners then enable us to present you with retargeted advertising on other sites based on your previous interaction with the Platform.
Third parties, with whom we partner to provide certain features on the Platform or to display advertising based upon your web browsing activity, use Flash cookies to collect and store information. Flash cookies are different from browser cookies because of the amount of, type of, and how data is stored.
You can control cookies and tracking tools. Some browsers have a “do not track” feature that prevents a website from tracking you, as well as additional cookie settings. Our Platform does not currently respond to these signals. If you choose to block cookies and other trackers, certain features of the Platform may not work. Blocking or rejecting cookies will not stop all of the tracking described in this Policy. These features and options are browser and device specific and are not uniform. You can usually find these settings in the options or preferences menu of your browser. To understand these settings, the following links for commonly used browsers may be helpful, or you can use the help option in your browser for more details:
To find out more on how to manage and delete cookies, visit aboutcookies.org. For more details on your choices regarding use of your web browsing activity for interest-based advertising you may visit the following sites:
On a mobile device, you may also be to adjust your settings to limit ad tracking.
7. Your Choices
You have certain choices about how we use your Personal Information. You can opt out-out of certain marketing. To opt-out of marketing communications, please email us at firstname.lastname@example.org or by following the instructions included in the email or text correspondence. Please note that, even if you unsubscribe from certain correspondences, we may still need to contact you with important transactional or administrative information, as permitted by law.
8. Children Under the Age of 13
The Platform is meant for adults and we will not knowingly collect personally identifiable information from any person under the age of 13 without permission from a parent or guardian. The Platform are not designed to attract the attention of persons under the age of 13. If you are a parent or legal guardian and think your child has given us information you can email us at email@example.com. You can also write to us at the address listed in the “Contact Us” section of this Policy. Please mark your inquiries “COPPA Inquiry.”
9. California Privacy Rights
Pursuant to California’s Shite the Light statute (Cal. Civ. Code Sec. 1798.83), you can control if we share information with third parties for their marketing purposes. To opt-out of us sharing your information with third parties for such promotional purposes, email us at firstname.lastname@example.org or write to us in the “Contact Us” section of this Policy and include “Marketing Opt-Out” in your request.
10. Storage, Security and Retention of Information
MS Pen has taken reasonable steps to protect the information users share with us, including, but not limited to, setup of processes, equipment and software to avoid unauthorized access or disclosure of this information. No transmission of information via the Internet can be entirely secure, however, so please always use caution when submitting Personal Information. We will retain your Personal Information in compliance with the uses described in this Policy, as well as to comply with our legal, financial reporting, or compliance obligations.
11. Links to Third Parties and their Sites
Our Platform may include third party content and links to third party websites and services that collect Personal Information. We do not control these third parties and this Policy does not apply to their privacy practices. We are not responsible for the practices of these third parties or how they use information you provide to them. Please read the third parties’ privacy policies carefully.
12. Contacting MS Pen
If you have any questions about this Policy, or the privacy practices of MS Pen, please email us at email@example.com or write to us at:
MS Pen Technologies, Inc.
Attention: Legal Department
2450 Holcombe Blvd., Suite J
Houston, TX 77021
Please note that this policy may be amended from time to time. Unless otherwise indicated, any changes to this Policy will apply immediately upon posting to the Platform so please check our site periodically for updates. You can see when this Policy was last updated by reviewing the “Last Updated” legend at the top of this page. We will provide notice of material changes by updating the Policy here, and communicating with you in the manner and format in which we typically communicate with you in our regular course of business, as required by applicable law.
Last Updated: August 26, 2020
Please carefully read these Terms of Service (this “Agreement”). This Agreement between you and MS Pen Technologies, Inc. as well as our affiliates and subsidiaries (collectively “MS Pen”, “us”, “our”, or “we”) governs your use of the websites, applications, and electronic communications that link to this Agreement (collectively, the “Platform”) and the materials, content, and services available through the Platform (collectively, Platform and all related materials, content, and services are referred to herein as the “Services”).
By accessing the SERVICES, you agree to be bound by this Agreement WITHOUT ANY MODIFICATION. DO NOT ACCESS OR USE THE SERVICES IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT. IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 10, REQUIRING ALL CLAIMS TO BE RESOLVED VIA INDIVIDUAL BINDING ARBITRATION.
NOTE: MS PEN’S DEVICE(S) AND RELATED TECHNOLOGIES ARE FOR RESEARCH ONLY AND NOT APPROVED BY THE FDA. THE SERVICES MAY INCLUDE INFORMATION ABOUT SUCH DEVICES AND RELATED TECHNOLOGIES, WHICH HAVE NOT BEEN VALIDATED OR APPROVED BY THE FDA AND ARE SUBJECT TO CHANGE BASED ON FURTHER REVIEW AND RESEARCH.
1. Registration and Eligibility for Services
Refusal of Service.
MS Pen reserves the right, with or without notice, to terminate or refuse service to, any persons that violate this Agreement, violate any party’s intellectual property rights, abuse other users of the Services, misuse the Services, or otherwise engage in inappropriate conduct, as determined by MS Pen in its sole discretion.
Information Submission and Age Restriction.
By submitting any information through the Services, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into this Agreement and use the Services. MS Pen does not intend to use the Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.
By accepting this Agreement and using the Services, you consent to receive electronically all communications or notices sent by MS Pen with regard to the Services or this Agreement to any email address you provide to MS Pen. It is your responsibility to update your contact information provided to MS Pen. In order to receive electronic communications, you must have a working connection to the internet and meet any specifications required by your email service provider. MS Pen may send communications in a non-electronic format in MS Pen’s discretion.
Revisions to this Agreement.
We may revise and update this Agreement from time to time, and will post the updated Agreement to the Services. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. Other than updating the date at the top of the Agreement, we generally will not notify you of any such changes by email or other personal contact, but we reserve the right to do so. You should revisit these Terms on a regular basis as revised versions will be binding upon you. Your continued use of this Services will constitute your agreement to any new provisions within the revised Agreement.
3. Access to and Use of the Services; Proprietary Rights.
All written content, videos, or other materials prepared and posted by MS Pen, and the Services design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Services (collectively, “MS Pen Content”) are owned by or licensed to MS Pen and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. MS Pen reserves all rights not expressly granted in, and to, the Services and the MS Pen Content.
We reserve the right to withdraw or amend the Platform, and any Service or material we provide on the Platform, in our sole discretion without notice. There may be times when the Services are unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Services will always be available or is completely free of human or technological errors. We will not be liable if, for any reason, all or any part of the Platform are unavailable at any time or for any period. You must provide the equipment and Internet connections necessary to access the Services at your own expense. We do not guarantee that the Services will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.
Changes to the Platform
We may update the content on the Platform from time to time, but its content is not necessarily complete or up to date. Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.We may from time to time develop and provide Platform updates, which may include upgrades, bug fixes, patches and other error corrections or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. All Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
You shall be solely responsible for the security, confidentiality, and integrity of all information that you receive, transmit through or store on the Services. You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Platform will be free of viruses or other destructive code. No data transmission over the Internet can be guaranteed to be 100% safe. Thus, we cannot warrant that your information will be absolutely secure.
User Representations; Restrictions on Use of Services.
You represent and warrant to MS Pen that:
You are at least 18 years of age;
You will not use the Platform or the Services to violate any statute, law, rule or regulation, to violate any agreement between MS Pen and you, or to otherwise violate the legal rights of MS Pen or any third person;
All information provided by you to MS Pen is truthful, accurate and complete;
You will not access or use the Services in order to gain competitive intelligence about MS Pen, the Services, or any product or service offered by MS Pen or to otherwise compete with MS Pen;
You are in fact an authorized representative of the entity on behalf of which you purport to act; and
You will comply with all the terms and conditions of this Agreement.
In addition to complying with any other posted terms and conditions applicable to your use of the Services, you agree that when using the Services, you will not:
Harm any person(s) in any way;
Use the Services or any MS Pen Content in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation;
Delete, modify, or attempt to change or alter any of the MS Pen Content or notices on the Services;
Introduce into the Services any virus, rogue program, time bomb, drop dead device, back door, trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Services, or to otherwise harm other users, MS Pen Content, or any third parties, or perform any such actions;
Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform;
Use the Services to commit fraud or conduct other unlawful activities or to impersonate any person or otherwise falsely state or misrepresent your relationship with a person;
Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services is based;
Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or scraping the information contained on the Services for any reason;
Frame or mirror any part of the Services;
Connect to or access any MS Pen computer system or network without authorization;
Use any of MS Pen’s trademarks without approval, or remove or modify any copyright, trademark, or other intellectual property notice that appear on the Platform;
Use the information in the Services to create or sell a similar service; or
Attempt to, or permit or encourage any third party, to do any of the above.
In order to protect the integrity of the Services, MS Pen reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Services. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by MS Pen to limit, restrict, or prevent access to the Services.
5. User Privacy.
Third Party Websites and Services.
The Services may use or provide access to one or more third parties. Your interactions with any of these third parties is controlled by the terms and conditions imposed by those third parties. Any disputes arising regarding a third party’s services must be resolved directly between user and the third party. MS Pen disclaims all warranties or representations regarding any third-party services. MS Pen, in its sole discretion, and without notice to you or any user, may subcontract any services related to the Services to be performed by a third party.
7. Disclaimer of Warranties.
THE PLATFORM AND ALL RELATED SERVICES OF MS PEN ARE PROVIDED “AS IS”. OUR DEVICE DESCRIBED THROUGH THE SERVICES IS FOR RESEARCH ONLY AND NOT APPROVED BY THE FDA. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF: (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE SERVICES; (ii) ANY INFORMATION OR ADVICE YOU GLEAN FROM THE SERVICES WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. WE DO NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Services or any information supplied to you via the Services, or that files available through Services are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics. MS Pen is not a backup service for STOring User Data, and MS Pen shall have no liability regarding any loss of User Data.
WHILE MS PEN USES COMMERCIALLY REASONABLE EFFORTS TO UPDATE THE SERVICES IN ACCORDANCE WITH CONTINUALLY CHANGING LAWS, CODES, STANDARDS, REQUIREMENTS AND REGULATIONS (COLLECTIVELY, “LAWS”), YOU MUST ALWAYS EXAMINE THE MOST CURRENT LAWS, INFORMATION AND FORMS TO ENSURE THAT YOU ARE IN FULL COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, MS PEN DOES NOT WARRANT THAT USE OF THE SERVICES WILL RESULT IN USER’S COMPLIANCE WITH ANY APPLICABLE LAWS, AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS. BY PROVIDING THE SERVICES, MS PEN IS NOT PROVIDING USER WITH LEGAL ADVICE.
8. Limitation of Liability
Services and Related Conduct.
NEITHER MS PEN, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “MS PEN PARTIES”), WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS OR LOSS OF GOODWILL OR BUSINESS REPUTATION OR LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR OTHER INTANGIBLE LOSS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, RELATING TO THIS AGREEMENT, YOUR USE OF THE SERVICES, OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICES, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE MS PEN PARTIES. FURTHER, MS PEN SHALL NOT BE LIAVLE FOR ANY LOSS OR DAMAGE TO YOU AS A RESULT OF: (A) THE USE OF OR INABILTY TO USE THE PLATFORM OR THE SERVICES; (B) PERSONAL INJURY OR PROPERY DAMAGE OF ANY CAIND WHATSOEVER CAUSED BY YOUR ACCESS TO, USE, OR MISUSE OF THE SERVICES; (C) ANY RELIANCE, WHETHER DIRECTLY OR INDIRECTLY, PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF THE SERVICES; (D) ANY CHANGES WHICH MS PEN MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (E) THE DELETION OF, CORRUPTION OF, OR FAILURE TO CURE, ANY CONTENT, DATA, INFORMATION AND/OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; OR (F) YOUR FAILURE TO PROVIDE MS PEN WITH ACCURATE INFORMATION. MS PEN IS NOT AN INSURER WITH REGARD TO THE SERVICES OR OTHERWISE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE SERVICES. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY MS PEN CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES WILL BE TO STOP USING THE SERVICES.
MS Pen’s Maximum Liability for Any Claim.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF THE MS PEN PARTIES, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR RELIANCE ON OR USE OF THE SERVICES, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONE HUNDRED U.S. DOLLARS ($100.00 USD).
California State Law Waiver.
In entering into this release you expressly waive any protections (whether statutory or otherwise), including Section 1542 of the California Civil Code if applicable (and any other comparable statute), that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Section 1542 of the California Civil Code reads as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
To the fullest extent permitted by applicable law, you agree to hold harmless, indemnify, and defend MS Pen from and against any and all claims (including liabilities, fines, damages, losses, costs, expenses, and reasonable attorneys’ fees) arising out of or relating to (i) your use of the Platform or Services; (ii) your breach of any term or condition of this Agreement, (iii) your reliance on or acts or omissions relating to the Services, or (iv) your unauthorized acts or omissions relating to the Services.
You will have the right to defend and compromise such claim at your expense for the benefit of the MS Pen Parties; provided, however, you will not have the right to obligate the MS Pen Parties in any respect in connection with any such settlement without the written consent of the indemnified party; provided, further, MS Pen will have the right to participate in the defense of such claim at its expense using counsel of its choice. Notwithstanding the foregoing, if you fail to assume your obligation to defend or if MS Pen elects to defend such claims itself, the MS Pen Parties may do so to protect their interests and you will reimburse all costs incurred by the MS Pen Parties in connection with such defense.
10. Agreement to Arbitrate and Prohibition on Class Actions
Choice of Law.
The validity, construction, and effect of this Agreement will be governed by the laws of the state of Delaware, without giving effect to that state’s conflict of laws rules. Any legal suit, action or proceeding arising out of, or related to, the Agreement or the Platform, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, in each case located in Wilmington, Delaware, although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country or county of residence, or any other relevant country or county. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
If you have any issues or dispute with MS Pen you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement), our operation of the Services, or a purchase made through the Services shall be resolved by final and binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will be held in Salt Lake City, Utah or another location if MS Pen consents to such other location, which consent may be withheld in the sole discretion of MS Pen. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees, and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Waiver of Class Actions; Jury Trials.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
Limitation on Claims.
No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
12. Electronic Communication
13. Miscellaneous Terms
Term and Termination.
The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
MS Pen shall not be liable for any failure to perform any services or other obligation related to this Agreement or the Services to the extent that performance of its obligations are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of MS Pen.
If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision. This Agreement shall not be modified by any course of performance or course of dealing.
No Assignments and Transfers.
No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
No Third-Party Beneficiaries.
Subject to Sections 9 and 10, nothing in this Agreement will confer upon any person or entity, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
You shall provide any notices to us under this Agreement by e-mail or mail using the contact information provided below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing MS Pen with up-to-date contact information, which you may do by updating your account information through the Services or by sending a message to us via the contact information provided below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
14. Contact Us.
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail: email@example.com
You may also send us mail at the following address:
MS Pen Technologies, Inc.
Attention: Legal Department
2450 Holcombe Blvd., Suite J
Houston, TX 77021
If you are interested in learning more about MS Pen Technologies, our diagnostic platform, or investment and partnership opportunities, please feel free to reach out.