This Soliish End User License Agreement (“EULA”) applies to your use of the Platform or the Services, each as defined below, provided by Soliish, Inc. and its Affiliates (collectively referred to in this EULA, as “Soliish”, “we” or “us”).
Please read this EULA carefully. You acknowledge that you have read and understood this EULA, and agree to be bound by its provisions if you, (i) click “Accept”, “I agree”, or a similar checkbox or button referencing this EULA, (ii) access or use the Platform, and/or the Services, (iii) create a user account on the Platform, or (iv) make any printed, oral, or electronic statement accepting this EULA, including on the Platform or any Soliish website.
If you do not agree to the terms and conditions in this EULA, do not proceed with, or promptly discontinue, your use of the Platform and the Services.
IMPORTANT: THIS EULA CONTAINS A MANDATORY ARBITRATION PROVISION IN SECTION 10 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND SOLIISH ARE EACH GIVING UP RIGHTS TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND.
WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: WHILE THERE ARE IMPORTANT POINTS THROUGHOUT THIS EULA, PLEASE NOTE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS ON SOLIISH’S LIABILITY ARE EXPLAINED IN SECTION 8.
- General Provisions.
- 1.1.Definitions. The following definitions apply to this EULA:
- “Affiliate” means for any entity, any other entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with, such entity.
- “Analytics Data” means [analytics and information developed using our proprietary set of computer vision, rule-based, machine learning and artificial intelligence powered algorithms, based on Input Data, that is used to support the detection of sleep apnea or similar sleep health and related disorders and to support care management].
- “Content” means all text, images, video, audio and any other information or materials that are made available to Users (such as you) through the Platform or in connection with the Services, [including information regarding sleep apnea (and other similar sleep disorders) and its effects, diagnosis and treatment options, and information regarding ways to support care management].
- “Control” means with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise
- “Feedback” means any ideas, concepts, feedback, reviews, ratings, suggestions, questions, and know-how that any User makes available to us in connection with the Platform or Services.
- “HIPAA” means Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, each as amended from time to time.
- “Input Data” means any data that is uploaded by you or on your behalf to the Platform in connection with the Services and that may include, without limitation, data regarding your face collected through the camera on your computer or mobile device, health measurements such as your height, weight, and information regarding your symptoms, sleep habits that are collected by sensors on your mobile device and uploaded to the Platform.
- “Intellectual Property Rights” means any and all intellectual property rights, including registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade secrets, trademarks, service marks, trade names, domain name rights, know-how, rights of confidence, or other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.
- “Law” means mean any statute, regulation, rule, ordinance or other requirement of a governmental or judicial authority.
- “Platform” means a multi-tenant cloud-based online tool made available by Soliish to you that facilitates (i) collection of certain data about you, including through the use of the camera and other sensors available on your computer or mobile device, (ii) use of a proprietary artificial intelligence powered algorithm to analyze the Input Data and develop the Analytics Data, and (iii) display of the Analytics Data in a format that can be viewed and/or downloaded by you or your healthcare provider for further analysis. The Platform is made available by Soliish at Soliish.app, Soliish.com or on mobile application stores such as the Apple App Store and Google Play Store.
- “Services” means (i) our provision of the Platform, regardless of the means of delivery (including through use of a mobile application), and (ii) our provision and management of User accounts, Input Data, Content and Analytics Data on the Platform.
- “User” or “you” means an individual user (such as you) who is using the Platform or Services, including, for clarity, Organizational Users (as described below).
- 1.2.Organizational Users. If you were invited by or otherwise received the right to access and use the Platform or Services from an organization or group, including but not limited to a sleep clinic, primary care physician practice, independent diagnostic testing facility, digital health, wellness, wearable providers, or another healthcare facility or organization (each, a “Customer Organization”), in accordance with a separate agreement between Soliish and such Customer Organization (“Customer Agreement”), then you are an “Organizational User” of such Customer Organization and your Soliish account associated with such Customer Organization is an “Organizational User Account”. If you are an Organizational User, you agree that without consent from you, (x) Soliish may provide the Customer Organization with the ability to access, use, remove, retain, and control your Organizational User Account, including your Content, Input Data, and Analytics Data therein; and (y) Soliish may provide Your Information (as defined below) to such Customer Organization. You hereby understand and acknowledge that, based on the terms of the Customer Agreement, Soliish may provide your Analytics Data only to the Customer Organization and not to you separately. As an Organizational User, you may also have different agreements with, or obligations to, a Customer Organization, which may affect your use of the Services. Soliish is not responsible or liable for any of your obligations or violations by you of such agreements or obligations. Further, if you are an Organizational User, we may have certain rights with respect to your use of the Platform or Services under the Customer Agreement, or the agreement you have entered into with the Customer Organization (as a third-party beneficiary), and to the extent of a conflict between such agreement(s) and this EULA, the provision more protective of Soliish’s rights will control.
- 1.3.Updates to this EULA. We may update this EULA at any time and may notify you of the updated EULA by any reasonable means, including by posting the revised EULA to the Platform. The updated EULA will apply to your use of the Platform and the Services after the date on which we have posted the updated EULA or otherwise notified you of the changes. By continuing to use the Services or accessing the Platform after we notify you of revisions to the EULA, you will accept the terms of the revised EULA. The “Last Updated” legend at the end of this EULA indicates the date on which the EULA was last updated.
- Your Acknowledgments, Representations, and Additional Covenants.
- 2.1.Representations. As a condition to using the Platform or Services, you hereby represent and warrant the following:
- you have the legal power and authority to agree to this EULA, you are at or above the age of majority in your jurisdiction of residence (or your parent or legal guardian is consenting to this EULA on your behalf), and you have neither falsely identified yourself nor provided any false information to gain access to the Platform or Services, or to create an account on the Platform.
- if you are a parent or legal guardian agreeing to this EULA on the behalf of a minor User, you have the right to provide consent on behalf of such minor User;
- Input Data provided by you is accurate, complete, and does not violate or infringe upon the rights of any third party, including Intellectual Property Rights, or breach or conflict with any other obligations, such as a confidentiality obligation; and
- use of your Input Data by us under the terms of this EULA does not violate any applicable Law or Intellectual Property Rights or privacy rights of a third party.
- 2.2.Additional Covenants. You agree not to engage in any of the following activities:
- use the Platform, Services, Analytics Data or Content in any way or for any purpose that: is not permitted under this EULA; is intended to interfere with provision of the Platform or Services to Soliish’s other customers; or is violative of applicable Laws;
- use the Platform, Services, or Analytics Data to cause damage, harassment, nuisance, annoyance or inconvenience to us or any third party;
- attempt to gain unauthorized access to any restricted parts of the Platform by circumventing any security measures or features on the Platform;
- reverse engineer or access the Platform in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions, or graphics of the Platform or Services, or (c) copy any ideas, features, functions, or graphics from the Platform;
- damage or impair any hardware or software used in connection with the Platform or Services;
- use any automated programs; data mining tools, web-crawlers or other data gathering or extraction tools in connection with your use of the Platform unless authorized by Soliish in writing in advance;
- engage in denial-of-service acts, breach any security protocols on the Platform, or spam the Platform;
- sell, resell, rent, publish, transfer, conduct any type of service bureau or time-sharing operation, or otherwise commercially making available the Platform, Analytics Data, or any Content to any third-party; or
- violate, or encourage others to violate, any right of or obligation to a third party in connection with your performance of the Services and Platform, including by infringing, misappropriating, or violating any third party’s Intellectual Property Rights, confidentiality, or privacy rights.
- Mobile Devices. You must access the Platform and the Services using a mobile or any computing device and equipment that meets the minimum requirements, such as access to the internet, as suggested by Soliish, and you understand and acknowledge that use of the Platform or Services on a mobile device that has been modified in a manner unauthorized by the manufacturer (“jail-broken”) may result in malfunction or impairment of the Platform or Services and is a material breach of this Agreement. You further acknowledge and understand that certain permissions may be required on your device, including permission to access the camera, microphone and certain network status information for the proper functioning of the Platform and Services on your mobile device. Granting these permissions on your device may result in consumption of additional battery power or data usage charges. Without limiting the foregoing or expanding the scope of Soliish’s responsibilities under this EULA, Soliish is not responsible for any issues related to your use of the Platform or Services resulting from outages or defects in your mobile device, internet connectivity, or any other event or circumstance outside of Soliish’s direct control.
- Intellectual Property.
- 4.1.Platform; Content; Feedback. We own and shall continue to own and retain all right, title, and interest, including all related Intellectual Property Rights, in and to the technology, processes, methodologies, “look-and feel”, Content or materials used to provide the Platform or any of the Services. You will not copy, reproduce, disclose, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the foregoing without our prior written consent. We do not grant you the right to use any tradenames, trademarks, branding or logos used on the Platform. Further, you hereby assign to us, without any compensation, all rights to any Feedback provided by you. Any alterations, changes, modifications, enhancements, additions, restructuring or deletions made to, or derivatives of the Platform or other products derived from, or as a result of your Feedback shall be our sole and exclusive property, together with all Intellectual Property Rights and other rights therein. All rights not expressly granted in this EULA are reserved exclusively by us. Nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to you, any Intellectual Property Rights or other right, title, or interest in or to the Platform, Service(s) or our related underlying technology or processes.
- 4.2.License to Input Data. You will continue to own any Input Data. You hereby grant us a perpetual, irrevocable, worldwide, fully paid and royalty free, sublicensable license to collect, use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works from), import, make, have made, any Input Data, as necessary to provide, maintain, or support the Platform and the Services, including the development and provision of Analytics Data, to create De-Identified Data (as defined below), and if you are an Organizational User to make available the Input Data to your associated Customer Organization. Notwithstanding the foregoing, if you are an Organizational User, your ownership of any Input Data may be subject to any additional terms or conditions agreed to by you and the applicable Customer Organization regarding such Input Data.
- 4.3.De-Identified Data; Usage Data. Notwithstanding anything to the contrary in this EULA, we may use any Input Data to create anonymized, aggregated, or de-identified data sets in accordance with applicable Law (“De-Identified Data”). For clarity, De-Identified Data does not include any Input Data in its raw form and does not identify you on an individual basis. We will own the De-Identified Data (and any Intellectual Property Rights thereto) and you hereby acknowledge and agree that we may use and disclose the De-Identified Data for any purpose consistent with applicable Law. Further, we may collect and use usage and operations data generated and collected in connection with your use of the Platform or Services (including service requests, metadata and usage durations and times) (“Usage Data”) to develop, improve, support, and operate the Platform, Services and our other products and services. We own and will continue to own all right, title, and interest in and to all Usage Data, including all Intellectual Property Rights therein, and may use such Usage Data for any legitimate business purpose consistent with applicable Law.
- User Accounts.
- 5.1.Access Credentials. In some cases, we may require you to create an account and be logged-in to such accounts to be able to use the Platform and access any Analytics Data that is made available to you. If you are an Organizational User, the applicable Customer Organization may provision an account for you. You are solely responsible for maintaining the confidentiality of the username and password for each account that is created by you. We may utilize email or sms-based one-time passcode or additional security measures from time to time to prevent unauthorized access to your account, including the use of multi-factor authentication methods. You may not use anyone else’s username or password or permit others to use yours to log into your Platform account. You must notify us immediately of any suspected unauthorized use of your account or any inaccuracy in your registration information. If you provide any information that is untrue, inaccurate, not current, or incomplete while creating an account, do not update Your Information once it becomes out-of-date, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your Platform account.
- 5.2.Your Information. You understand that in order to provide you access to the Platform and set up your account, we will need to collect and store certain information related to you, including your name, address, and email address (“Your Information”). You hereby consent to us collecting, storing, sharing with certain third parties, Your Information solely in connection with the Services. You must provide correct, current, and complete information to us while requesting an account on the Platform. We reserve the right to accept or reject any person’s account registration on the Platform at our sole discretion.
- 5.3.Privacy. For more information regarding how Soliish collects, uses, and shares Your Information or other information about you, please review the Soliish Privacy Policy (https://www.soliish.com/privacy-policy).
- Term and Termination. This EULA will become effective on the date you accept them by clicking “Accept”, “I agree”, or a similar button when this EULA are presented to you on the Platform, or through another reasonable means. This EULA will be applicable to you for the duration of your use of the Platform or Services (“Term”). We may, at our sole discretion, at any time without prior notice to you: (1) change, restrict, suspend or terminate your access to the Platform or Services, or any portion of the Platform or Services; (2) discontinue the Services, or any portion thereof; or (3) add, remove or modify any services or functionality that is available through the Platform. Without limiting the foregoing, we may restrict, suspend or terminate your access to the Platform or Services in case of any material breach of this EULA by you or, if you access the Platform as an Organizational User, at the request of the applicable Customer Organization. You can stop your use of the Platform and the Services at any time or delete your account on the Platform. Upon termination of this EULA, your Soliish account on the Platform will be deactivated and you will no longer have access to any Input Data, Content or Analytics Data that was accessible to you through the account. Further, upon termination, you shall promptly destroy or delete the access credentials used by you to access the Platform.
- Our Warranties and Disclaimers; Limitation of Liability.
- 7.1.Warranties and Disclaimers. We will perform the Services and maintain the Platform using a commercially reasonable level of skill and care. HOWEVER, OTHER THAN AS EXPRESSLY SET OUT IN THIS EULA, WE EXPRESSLY DISCLAIM ALL WARRANTIES (INCLUDING IMPLIED WARRANTIES) IN RELATION TO THE SERVICES, AND PLATFORM, INCLUDING TITLE, NON-INFRINGEMENT, IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, we specifically make the following disclaimers:
- THE SERVICES, CONTENT, ANALYTICS DATA, AND THE PLATFORM ARE DELIVERED TO YOU “AS-IS” AND “AS-AVAILABLE”. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY THAT THE USE OF THE FOREGOING WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, THAT IT WILL MEET YOUR REQUIREMENTS OR EXPECTATION OR THAT IT WILL BE ERROR FREE. ALL TECHNOLOGY, ALGORITHMS, PROCESSES AND TOOLS PROVIDED TO YOU AS PART OF THE PLATFORM AND SERVICES ARE PROVIDED TO YOU “AS-IS” AND ARE FOR YOUR VOLUNTARY USE. WE DO NOT WARRANT THAT THE CONTENT OR THE ANALYTICS DATA MADE AVAILABLE TO YOU IS ACCURATE, CORRECT, UP-TO-DATE OR ERROR-FREE;
- NOT ALL INFORMATION DESCRIBED IN THE PLATFORM OR SERVICES IS SUITABLE FOR EVERYONE. SOLIISH DOES NOT MAKE ANY WARRANTIES THAT THE PLATFORM AND SERVICES WILL MEET YOUR REQUIREMENTS, BE ACCURATE, ERROR-FREE OR SUCCESSFULLY EDUCATE YOU ON SLEEP APNEA OR ANY OTHER SLEEP DISORDER;
- SOLIISH IS NOT A HEALTHCARE PROVIDER AND THE PLATFORM AND SERVICE ARE NOT INTENDED TO REPLACE PROFESSIONAL MEDICAL ADVICE OR DIAGNOSE, TREAT OR MANAGE ANY ILLNESS OR MEDICAL CONDITION. THE SOLIISH PLATFORM AND SERVICE ARE INTENDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO DETECT OR DIAGNOSE SLEEP APNEA OR ANY OTHER SLEEP DISORDER. THE ANALYTICS DATA PROVIDED TO YOU BY SOLIISH SHOULD BE REVIEWED BY A QUALIFIED PHYSICIAN OR HEALTHCARE PROVIDER (“CLINICIAN”). SOLIISH IS NOT PARTY TO ANY PHYSICIAN-PATIENT RELATIONSHIP THAT YOU MAY HAVE WITH ANY CLINICIAN WHO RECEIVES AND ASSESSES THE ANALYTICS DATA PROVIDED BY THE PLATFORM;
- ANY INFORMATION AND ANALYTICS DATA MADE AVAILABLE TO YOU THROUGH THE PLATFORM (INCLUDING THE CONTENT) IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE JUDGMENT OF A TRAINED HEALTHCARE PROFESSIONAL. THE PLATFORM IS NOT A MEDICAL DEVICE AND THE SERVICES ARE NOT MEDICAL OR DIAGNOSTIC SERVICES. Always seek the advice of aN APPROPRIATE CLINICIAN FOR any questions you may have regarding aNY medical condition (INCLUDING SLEEP APNEA OR OTHER SLEEP DISORDERS) OR BEFORE MAKING ANY DECISIONS OR TAKING ANY ACTIONS THAT MAY AFFECT YOUR HEALTH OR IF YOU EXPERIENCE ANY CHANGES IN YOUR CONDITION OR HEALTH STATUS. dO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING PROFESSIONAL MEDICAL ADVICE BASED ON THE ANALYTICS DATA, THE CONTENT OR YOUR USE OF THE PLATFORM OR SERVICES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL EMERGENCY SERVICES OR GO TO THE NEAREST OPEN EMERGENCY ROOM IMMEDIATELY;
- SOLIISH DOES NOT WARRANT ANY THIRD-PARTY MOBILE DEVICE, SMART DEVICE, SOFTWARE, SERVICE OR DATA THAT YOU MAY USE IN CONNECTION WITH THE PLATFORM OR SERVICES, WHETHER OR NOT SUCH THIRD PARTY ITEM IS DESCRIBED IN, AVAILABLE OR CAN BE CONNECTED TO THROUGH, THE PLATFORM. THE PLATFORM MAY CONTAIN HYPERLINKS OR REFERENCES TO CERTAIN OTHER WEBSITES (“THIRD-PARTY SITES”). WE DO NOT CONTROL AND ARE NOT RESPONSIBLE FOR THE CONTENT ON THIRD-PARTY SITES, INCLUDING ANY PRODUCTS AND SERVICES PROVIDED THEREIN;
- SOLIISH DOES NOT ENDORSE OR RECOMMEND ANY PARTICULAR CLINICIAN OR ANY PARTICULAR DIAGNOSTIC, THERAPY OR OTHER TREATMENT; AND
- WE MAKE NO WARRANTY RELATED TO THE CONFIDENTIALITY AND SECURITY OF ANY DATA PROVIDED BY YOU TO US, INCLUDING INPUT DATA PROVIDED THROUGH THE PLATFORM, AND DO NOT WARRANT THAT THE SERVICES, OR PLATFORM ARE OR WILL REMAIN FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- 7.2.Use of Artificial Intelligence Capabilities. The Platform and Services include the use of our proprietary artificial intelligence and machine learning algorithms to process Input Data and produce the Analytics Data (the “AI Capabilities”). Your use of such AI Capabilities will be at your sole risk, and you and your Clinician are solely responsible for determining if use of such AI Capabilities are appropriate for educating you about sleep apnea and sleep disorders and supporting your Clinicians’ decision making and professional analysis. Soliish is not liable for any decisions, interpretations, treatments or otherwise for any determination that you or a Clinician makes based on the outputs of our AI Capabilities. Use of our AI Capabilities for any automated decision making intended to replace your Clinician’s professional judgments is expressly prohibited. You agree and understand that our AI Capabilities are still under development and in their current form may not be objective, complete, reliable or accurate.
- 7.3.Limitations on Liability. To the fullest extent permitted by applicable law: (i) in no event shall Soliish, its Affiliates, officers, directors, employees, agents, contractors, or licensors (“Soliish Parties”) be liable for any indirect, consequential, punitive, incidental, or special damages, including, but not limited to, any personal injury, property damage, or unauthorized disclosure of your data, whether in any action in warranty, contract, tort, breach of contract, negligence, strict liability, malpractice, or other legal theory and even if we have been advised of the possibility of such damages; and (ii) the maximum aggregate liability of the Soliish Parties for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, will not exceed USD $500.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: 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.
IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO CALIFORNIA CIVIL CODE SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
- Indemnification. To the extent not prohibited by law, you hereby agree to indemnify, defend, and hold harmless Soliish, its Affiliates, officers, directors, employees, contractors, agents, and licensors, as well as Customer Organizations (if you are an Organizational User) from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, suits, fees (including attorneys’ fees and expert fees), and costs of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use of the Platform or the Services (including your use of any Analytics Data); (ii) claims related to unauthorized disclosure of your or a third-party’s data (including Input Data and Analytics Data) that arises from your use of the Platform or the Services; (iii) your violation of the terms of this EULA; (iv) any claims related to the accuracy, completeness, legality or quality of your Input Data or claims arising from your failure to obtain any required consents, permissions, licenses, rights, authorizations, releases, reviews, approvals, determinations, or waivers necessary for us to use, host, transmit, store, disclose, or otherwise process your Input Data; (v) any claims related to infringement of a third-party’s Intellectual Property Rights or other rights due to the Input Data or our use thereof; and (vi) your violation of any applicable Laws, or rights of any third-party, including any Intellectual Property Rights, resulting from your use of the Platform or Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Governing Law; Mandatory Arbitration.
- 9.1.Governing Law. Any disputes arising in connection with this use or the Platform or Services shall be governed by and construed and enforced solely and exclusively in accordance with the Laws of the state of Delaware, without regard to such jurisdiction’s conflicts of law principles.
- 9.2.Mandatory Arbitration. You and Soliish both agree to provide a written notice of any disputes to the other party at its notice address (or an address provided in writing to the other party) and try to resolve any disputes in good-faith thereafter. If the dispute is not resolved, within 30 days of a party providing notice to the other party, both parties agree that the dispute will be resolved through individual, non-representative, binding arbitration held in English, instead of a proceeding in courts of general jurisdiction. Any disputes will be decided by a single arbitrator and will be administered by American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules then in effect and as modified by this agreement to arbitrate. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at Commonwealth of Virginia, USA. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court with appropriate jurisdiction. Each party will be responsible for its respective costs, including costs related to its respective attorneys, experts, and witnesses.
- 9.3. Waiver of Right to Jury Trial and Class Action. EACH OF SOLIISH AND YOU EXPRESSLY WAIVES ITS RIGHT TO GO TO COURT, TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE PROCEEDING WITH RESPECT TO ANY CLAIM SUBJECT TO ARBITRATION.
- Miscellaneous.
- 10.1.Assignment. You may not assign your rights and obligations under this EULA, in whole or in part, without our prior written consent. We may assign this EULA, in whole or in part, or delegate any of our rights and obligations, without your consent and with or without notice to you. This EULA will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
- 10.2.No Waiver. Either party’s failure to insist on or enforce strict performance of any of the terms in this EULA will not be construed as a waiver of any provision or right.
- 10.3.Severability. If any part of this EULA become becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, those provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of this EULA will remain in full force and effect.
- 10.4.Integration. This EULA constitute the entire agreement between you and us relating to this subject matter and supersede any and all prior communications and/or agreements between you and us relating to access and use of the Platform and Services.
- 10.5.Survivability. The rights, obligations, and commitments in this EULA that, by their nature, would logically continue beyond the termination of your use of or access to the Platform or the Services (including, without limitation, Sections 4, 7, 8, 9, 10 and 11) survive termination of this EULA.
- 10.6.Relationship. We provide the Platform and the Services to you as an independent contractor and service provider. This EULA and the provision of the Platform and Services do not create any relationship between you and us of partnership, joint venture, fiduciary, or employer and employee or otherwise. You may not enter into any contract on our behalf or bind us in any way.
- 10.7.No Third-Party Beneficiaries. Except as expressly stated, no provisions of this EULA create any third-party beneficiary.
- 10.8.Delay. Even if we delay in enforcing any provision in this EULA, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under the terms of this EULA, or if we delay in taking steps against you in respect of your breaching of the terms of this EULA, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
- 10.9.Notice. You may provide notice to us by emailing us at legal@soliish.com. Any notice sent by you via email is deemed to be delivered upon your receipt of an electronic read receipt or delivery receipt or upon confirmation of receipt from us.
- 10.10.Apple iOS. If you use the Platform and Services on an Apple phone, mobile device or other device running iOS, you and Soliish acknowledge this EULA is concluded between you and Soliish only, and not with Apple, and that Apple, and Apple’s subsidiaries are third-party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be considered to have accepted that right) to enforce this EULA against you as a third-party beneficiary of this EULA. Subject to this EULA, Soliish, not Apple, is responsible for addressing any claims you may have relating to the Platform and Services, including (i) product liability claims; (ii) any claim that the Platform or Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any failure of the Platform or Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the related purchase price paid by you. To the maximum extent permitted by applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Platform and Services. In addition, Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform and Services. In the event of any third party claim that the Platform and the Services or your possession and use thereof infringes that third party’s Intellectual Property Rights, subject to this EULA, Soliish, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
