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76research (the “Company,” “we,” or “us”) provides certain services to you (collectively, the “Services”) including at http://www.76research.com/, which includes content, services and interactive features (the “Website”). These Terms of Use are a legally binding contract between you and the Company regarding your use of the Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING ANY SERVICES.
BY CLICKING “I ACCEPT,” OR BY OTHERWISE ACCESSING OUR WEBSITE OR USING OR SUBSCRIBING FOR ANY SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF OUR WEBSITE OR THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE COMPANY’S PRIVACY POLICY AND ANY ADDITIONAL TERMS (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICES OR OUR WEBSITE. YOUR USE OF OUR WEBSITE AND THE SERVICE, AND THE COMPANY’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY THE COMPANY AND BY YOU TO BE BOUND BY THESE TERMS. THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW.
THE COMPANY RESERVES THE RIGHT, AT ANY TIME, WITHOUT NOTICE, AND AT ITS SOLE DISCRETION, TO UPDATE OR MODIFY THIS AGREEMENT BY POSTING SUCH CHANGE, UPDATE, OR MODIFICATION ON THE WEBSITE. ANY SUCH UPDATE OR MODIFICATION WILL BE EFFECTIVE IMMEDIATELY UPON POSTING.
ANY MATERIAL CHANGES TO THESE TERMS WILL ONLY APPLY ON A PROSPECTIVE BASIS. YOUR CONTINUED ACCESS OR USE OF THE WEBSITE AND/OR THE SERVICES OR FEATURES OFFERED ON THE WEBSITE AFTER ANY CHANGES TO THESE TERMS MEANS THAT YOU ACCEPT ANY MODIFICATIONS TO THESE TERMS.
1. Services. The Company’s Services include features that enable you to make payments to third parties as well as additional consulting services. You may utilize the Services pursuant to our online registration as described at http://www.76research.com and/or pursuant to an order form for Services (the “Order”), which includes the charge of Fees (as defined below) for the use of the Services, as described in the Order or in these Terms. These Terms (and, if applicable, the Order) will govern your initial registration of the Services as well as any of your future purchases or use of the Services.
2. Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations; and (d) you have a valid credit or debit card. The Company is an independent service that is not formally affiliated with any third party, except where otherwise indicated.
3. Accounts. To use the Services and certain portions of the Website, you must (a) create an account through Memberstack by providing your business name and address, email address, number of authorized users, phone number, business contact and title, and, if required, a username and password or other account creation tools offered through Memberstack, and (b) have a valid credit or debit card or other approved payment method on file with Stripe (or an alternative payment processor utilized by the Company). We may request additional information from you depending on the Services you elect to utilize, or as otherwise required by us to provide the Services and comply with applicable law. When you register to create an account with us through Memberstack, you agree to provide accurate information about yourself and must not register under a false name or age or use an unauthorized payment method. If you use the Website or any Service, you are responsible for maintaining the confidentiality of your account and any password for such account and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree to notify the Company immediately upon learning of any unauthorized use of your account or password, or any other unauthorized access or breach of security; provided, however, that you may be held liable for losses incurred by the Company or any other person or entity due to another person using your account or password. You may not use any other user’s account or password at any time without the express permission and consent of the holder of that account or password. You may not transfer or assign your account. If you believe that your account is no longer secure, then you must immediately notify us at legal@76research.com.
4. Payments. In order to use the Services or access certain portions of the Website you must have a valid credit or debit card or other approved payment method on file with Stripe (or an alternative payment processor utilized by the Company), provided that for the avoidance of doubt the Company itself does not maintain any of your credit card information. You agree that we may charge your credit card for amounts you owe (including, without limitation, any Fees) as described in these Terms or in any Order, as well as any costs or losses arising from your violation of the Terms, or we may provide you an invoice via email (or digitally) for the same.
5. Limitations on Services.
5.1 Restrictions. Successful registration provides you access to the Services but does not make any warranties about the extent of your access or privileges. The Company reserves the right in its sole discretion to impose limitations on the size, frequency, and time frame of Services utilized by you. Depending on your usage of the Services, more information may be requested to lift such restrictions. You acknowledge that your failure to provide satisfactory information upon request may result in limitations being placed on your account, which may include complete restriction from access and usage of the Services.
5.2 Termination and Suspension. If we have reason to believe that you have used the Website and/or our Services contrary to these Terms, including without limitation failing to pay Fees due, we may close or suspend your account or terminate the Services; hold, return, or reclaim funds; update information provided by third parties; and/or decline to provide Services to you or related parties in the future. Activity contrary to these Terms may result in us contacting your bank, law enforcement, or other third parties, or taking legal action.
5.3 Taxes and Penalties. You are responsible for all, if any, applicable taxes arising from your use of the Services. You are furthermore responsible for all fees, fines, penalties and other liability incurred by the Company, yourself, or a third party caused by or arising out of your breach of these Terms, and/or your use of the Services. You agree to reimburse the Company or a third party for any and all such liability. In the event that you are liable for any amounts owed to us, the Company may charge your credit card on file to pay any such amounts.
6. Fees. We reserve the right at any time to charge fees for certain Services and for access to certain portions of the Website or the Website as a whole (the “Fees”). We will not charge you for any Fees unless we obtain your prior agreement to pay any such charges. Thus, if at any time we require or change a Fee for certain Services and for access to certain portions of the Website or the Website as a whole, we will give you thirty (30) days advance notice of such Fees. Any new Fees will be posted prominently on the applicable Website and/or through an email address that we have in our records for you. You are responsible for paying all Fees, including all applicable taxes, incurred through your account at the rates in effect for the billing period in which such Fees and other charges are incurred. All Fees for subscription renewals for Services will be at the then-current term’s full price, unless otherwise noted at the time of signup. All subscriptions will automatically renew at the then-current price for the applicable term unless canceled at least thirty (30) days prior to the end of the then-current term. We reserve the right to make changes to our Fees at any time and without notice, including the addition and/or removal of Services and benefits, as well as changing or eliminating the Fees charged. We reserve the right to suspend or terminate access to the Website or any Services at any time. Furthermore, no credit or refund will be offered if the Website or any Service is temporarily unavailable.
7. Refunds. While you may cancel your account or terminate the Services at any time, when you cancel your account or terminate your access to the Services, you are canceling only future charges, and we will not offer you a refund of any Fees or other payments that have already been made for said paid access and/or Services.
8. Closing Your Account. You may request the closure of your account at any time by emailing the Company at legal@76research.com. In accordance with Section 7 above, you will remain liable for all obligations related to your account even after your account is closed, including any Fees or charges already due to the Company. You may not close your account to evade an investigation. The Company also reserves the right to close your account at any time with or without notice to you. The Company may retain data associated with your usage of the Services in accordance with applicable regulatory and compliance obligations.
9. Licenses.
9.1 Limited License. Subject to your complete and ongoing compliance with these Terms, the Company hereby grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services.
9.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services or any of the Materials (as defined below); (b) make modifications to the Services or the Materials; or (c) interfere with or circumvent any feature of the Services or the Materials, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, whether by these Terms, applicable law, or otherwise, then you may not use them.
9.3 Contributions. By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to the Company, you acknowledge and agree that: (a) your Contributions don’t contain confidential or proprietary information; (b) the Company isn’t under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) the Company shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media now known or later developed and throughout the universe; (d) the Company may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of the Company without any obligation of the Company to you; and (f) the Company is free to use any ideas, concepts, or techniques that you send the Company for any purpose, including but not limited to, developing and marketing products that incorporate such ideas, concepts or techniques; and (g) you aren’t entitled to any compensation or reimbursement of any kind from the Company under any circumstances.
10. Ownership; Proprietary Rights. The Services and the Website are owned and operated by the Company. 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 Services (“Materials”) provided by the Company are protected by intellectual property and other laws. All Materials included in the Services are the property of the Company or its third-party licensors. Except as expressly authorized by the Company and these Terms, you may not make use of the Materials. The Company reserves all rights to the Materials not granted expressly in these Terms.
11. Third Party Terms.
11.1 Third Party Services and Linked Websites. The Company may provide tools through the Services that enable you to export information, including User Content, to third party services. By using one of these tools, you agree that the Company may transfer that information to the applicable third-party services. Third party services are not under the Company’s control, and, to the fullest extent permitted by law, the Company is not responsible for any third-party service’s use of your exported information. The Services may also contain links to third party websites. Linked websites are not under the Company’s control, and the Company is not responsible for their content.
11.2 Third Party Software. The Services may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
12. User Content.
12.1 If you provide us with any text, graphics, photos or other materials or content (“User Content”), you grant us a non-exclusive, worldwide, perpetual, transferable, irrevocable, assignable, royalty-free, fully paid up, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute (through multiple tiers), create derivative works from, publicly perform, display, store, digitally perform, make or deliver digital audio transmissions, encode, transcode, publish (online, through the Services, on any other website(s), as well as through mobile channels, and offline, in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context, in any way, in any and all media now known or hereinafter developed and on any device(s), whether or not portable, wired, or wireless, without limitation, worldwide. You further agree to waive your right to be identified as the author of User Content and your right to object to derogatory use or treatment of such User Content. If the Company does decide, in its sole discretion, to attribute User Content to you, you hereby grant the Company the right to use your name (and/or any user name), image, likeness, and/or photo with respect to such attribution, and you waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your name, image, likeness and/or photos. You hereby agree to waive all claims of moral rights associated with being the author of User Content, and to consent to the Company doing all acts that would otherwise constitute an infringement of your moral rights, as well as waive the right to inspect or approve the finished video, photograph, sound track, web site, advertising copy or printed matter that may be used in conjunction therewith or to the eventual use in any media that it might be applied. The rights you grant above are irrevocable during the entire period of the protection of your intellectual property rights associated with such User Content.
12.2 You agree that the Company (a) is not under any obligation, whether of confidentiality, attribution or otherwise, and will not be liable for any use or disclosure of any User Content; (b) is under no obligation to post, display or otherwise use any User Content; (c) has no obligation whatsoever to provide you any compensation for the use or display of your User Content or otherwise from the exercise of the rights granted under this Section, even if the Company receives compensation therefrom; (d) has the right (but not the obligation) to monitor the User Content that you or third parties post, and to alter or remove any such User Content; and (e) has the right to disclose User Content and the circumstances surrounding its transmission to any third party in order to operate the Services, to protect ourselves and third parties, and to comply with legal obligations or governmental requests.
12.3 You are prohibited from posting any libelous, obscene, defamatory, pornographic, or other materials that would violate any laws. You shall be solely responsible for your own User Content and the consequences of posting or publishing it.
12.4 You represent and warrant that any information you provide to us, to other users, or to visitors, including but not limited to User Content, (a) is not false, inaccurate, misleading, obscene or defamatory; (b) is not fraudulent; (c) doesn’t involve the sale of counterfeit or stolen items; (d) doesn’t infringe any third party’s copyright, patent, trademark, trade secret, rights of publicity or privacy, or other right; (e) is yours or you have the necessary licenses, rights, consents, and permissions to such information and to grant the rights and licenses to the Company under all patent, trademark, trade secret, copyright or other proprietary or intellectual property rights in and to any and all such information in the manner contemplated in these Terms; (f) doesn’t violate any law, statute, ordinance or regulation, including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising; and, (g) doesn’t contain any viruses or any programming that is intended to damage, interfere with, intercept or expropriate any system, data or personal information; and (h) is not intended to circumvent or violate the letter and spirit of these Terms and the lawful functioning of the Company’s Service and website. You further represent and warrant that you have the written consent, release, and/or permission of each and every person identified in any information you provide, including but not limited to User Content, to use the name or likeness of such person or, if such persons are minors, the written consent, release, and/or permission of such minor’s parent or legal guardian.
12.5 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. The Company 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 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. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against the Company with respect to User Content. 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. For clarity, the Company does not permit copyright-infringing activities on the Services.
12.6 The Company does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that the Company reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time the Company chooses to monitor the content, the Company still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
13. Taxes. You will be responsible for all taxes that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of the Services. The foregoing excludes any tax based upon Fees paid by you to the Company.
14. Prohibited Conduct. BY USING THE SERVICES, YOU AGREE NOT TO: (a) use the Services for any illegal purpose or in violation of any local, state, national, or international law; (b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right; (c) use our Services to make payments to third parties outside of the Service; (d) use our Services to contact any users of the Services; (e) interfere with security-related features of the Services, including by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law; (f) interfere with the operation of the Services or any user’s enjoyment of the Services, including by (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code, (ii) making any unsolicited offer or advertisement to another user of the Service, (iii) collecting personal information about another user or third party without consent, or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services; (g) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Services account without permission; (h) sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or (i) attempt to do any of the acts described in this Section 14 or assist or permit any person in engaging in any of the acts described in this Section 14.
15. Digital Millennium Copyright Act.
15.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Website or as part of the Services, you may contact our Designated Agent at the following address:
76research
1201 Kings Highway – Suite 2 #1182
Fairfield, CT 06824
Email: legal@76research.com
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located within the Services; (d) your address, telephone number, and email address; (e) statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
15.2 Repeat Infringers. The Company will promptly terminate the accounts of users that are determined by the Company to be repeat infringers.
16. Changes to Terms. The Company may in our discretion change these Terms (including the Privacy Policy or any Additional Terms) at any time, but if we do, we will update the applicable effective date. We may also send you an email and/or notify you by some other means. Changes take effect on the date set out in these Terms. You should view these Terms often to stay informed of any changes that may affect you. YOUR CONTINUED USE OF THE WEBSITE AND/OR THE SERVICES AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY OF THE CHANGES, YOU MUST CANCEL YOUR ACCOUNT AND NOT USE ANY PORTION OF THE SERVICES. The version of these Terms posted on our website on each respective date you visit the website or use the Services will be the Terms applicable to your access and use of the Services on that date. Our electronically or otherwise properly stored copies of these Terms and the Privacy Policy shall be deemed to be the true, complete, valid, and authentic copies of the version of the Terms and the Privacy Policy that were in force on each respective date you visited our website and/or used the Services. We reserve the right to terminate these Terms, or to refuse, restrict, or discontinue access to or use of the Services (or any portions, components, or features thereof) to you or any other person or entity, if you are in breach of these Terms or for any reason or for no reason whatsoever, at any time, without notice or liability.
17. Term, Termination and Modification of the Services.
These Terms are effective and binding beginning when you accept these Terms or first access or use the Services or our Website. The Company may, at its sole discretion, terminate these Terms or your account on the Website, or suspend or terminate your access to the Services, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at legal@76research.com; provided, however, that you will not be entitled to any refunds from the Company in the event you terminate your account or any Services. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must immediately pay to the Company any unpaid amounts that were due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.2, 5.3, 6, 7, 9.3, 10–12, and 17–23 will survive. The Company reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. The Company will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
18. Indemnity. You hereby agree to defend, indemnify and hold harmless the Company, its affiliates and subsidiaries, and their respective shareholders, business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents (collectively including the Company, the “Company Parties”) against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party (including any disputes related to any payments made to third party); (e) your gross negligence or willful misconduct; and (f) any other party’s access to and/or use of the Services using your account and password. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
In addition, you acknowledge and agree that the Company has the right to recover from you all damages incurred by the Company when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with these Terms, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
19. Disclaimers; No Warranties.
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR PAYMENT. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND THE COMPANY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY COMPANY PARTIES WILL CREATE ANY WARRANTY REGARDING ANY OF THE COMPANY PARTIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. NONE OF THE COMPANY PARTIES ARE RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOU DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
The Company does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. All of the Services are provided to you on a “best efforts” basis, are subject to change at any time in the sole discretion of the Company, and the Company is not liable for any delays in providing the Services to you.
The Services provided by the Company are expressly subject to the Disclaimer located at http://www.76research.com/disclaimer.
20. Limitation of Liability.
EXCEPT AS PROHIBITED BY LAW, NONE OF THE COMPANY PARTIES SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT AS PROHIBITED BY LAW, THE TOTAL LIABILITY OF THE COMPANY PARTIES TO YOU SHALL BE LIMITED TO THE LESSER OF (A) THE AGGREGATE AMOUNTS PAID TO THE COMPANY BY YOU IN THE FOUR (4) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY AND (B) $1,000. WITHOUT LIMITING ANY OTHER PROTECTIONS AFFORDED THE COMPANY PARTIES UNDER THESE TERMS, THE COMPANY WILL NOT BE HELD LIABLE FOR FAILURE TO PERFORM DUE TO ANY CONTINGENCY BEYOND ITS REASONABLE CONTROL SUCH AS ACTS OF GOD, ACTS OF GOVERNMENT, WAR OR OTHER HOSTILITY, CIVIL DISORDER, PANDEMIC, WEATHER, FIRE, POWER FAILURE, LABOR DISPUTE, OR OTHER CAUSES WHICH ARE UNAVOIDABLE.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES, INCLUDING, WITHOUT LIMITATION, IN SECTIONS 19 AND 20 OF THESE TERMS, 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 AND THE DISCLAIMERS IN SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Dispute Resolution. The Company and you each acknowledge and agree that any controversy, disagreement, dispute or claim arising out of or relating to these Terms, any Additional Terms or the Privacy Policy, any breach thereof, or the Services (each, a “Dispute”), shall be settled by following the procedures set forth below:
21.1 The Company and you agree first to contact the other to advise of any such Dispute. The party alleging, asserting and/or initiating the Dispute shall contact the other party or parties who is or are alleged to be liable or responsible for such Dispute, and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the “Claim Notice”). You agree to contact the Company as contemplated above in accordance with Section 23.7. The Company will contact you by letter or e-mail to the contact information on file with us.
21.2 The Company and you shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party alleging, asserting and/or initiating the Dispute, would settle the Dispute (the “Settlement Amount”). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
21.3 IN THE ABSENCE OF RESOLVING THE DISPUTE UNDER THIS SECTION 21, AND INSTEAD OF SUING IN COURT, THE COMPANY AND YOU EACH AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) THE COMPANY OR YOU MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) THE MERCHANT PARTIES MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST THE COMPANY ON YOUR BEHALF. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES. Without limitation, the Company and you agree that Disputes, as defined above, shall include the following matters: (a) any Dispute by any party against any agent, employee, successor, or assign of the other party or parties, including to the full extent permitted by applicable law, third parties who are not signatories to this Agreement, whether related to this Agreement or otherwise; (b) any past, present, and future Dispute; and (c) any Dispute as to the scope, validity or applicability of this Section 21, and/or the arbitrability of any Dispute; and (d) any Dispute against the related in any way to its services or products, including, but not limited to, the Services, even if it arises after the Agreement has terminated.
21.4 The foregoing arbitration shall be administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules in effect when Claim Notice is duly provided under this Section 21. If any AAA procedure or rule conflicts with these Terms, these Terms shall apply.
21.5 Unless the Company and you agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA’s Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the State of Connecticut, County of Fairfield. The federal or state law that applies to this Agreement will apply during the arbitration. The arbitrator shall have no authority to award punitive, consequential or other monetary damages not measured by the prevailing party’s actual damages, except as may be required by statute or as otherwise provided below.
21.6 The award of the arbitrator shall be accompanied by a reasoned opinion.
21.7 THE COMPANY AND YOU EACH AGREE NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
21.8 To the extent that any Dispute or action relating to this Agreement is permitted to be brought in a court of law, you agree that the legal action or proceeding will be brought exclusively in the state courts located in State of Connecticut, County of Fairfield, or the federal courts in the District of Connecticut. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any matters arising out of or relating to this Agreement.
22. Class Action Waiver. The Company and you acknowledge and agree that any disputes that may arise between or among them are unique enough to justify dispute resolution on an individual basis. EACH OF THE COMPANY AND YOU HEREBY WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW.
23. Miscellaneous.
23.1 General Terms. These Terms, together with the Privacy Policy, any Orders, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and the Company regarding your use of the Services. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. If any provision of these Terms is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms shall remain in full force and effect.
23.2 Governing Law. EXCEPT AS OTHERWISE PROVIDED IN SECTION 21 ABOVE, THESE TERMS AND ALL TRANSACTIONS THAT IT CONTEMPLATES, INCLUDING ALL ISSUES CONCERNING THE VALIDITY OF THESE TERMS, THE CONSTRUCTION OF THESE TERMS, THE SERVICES, AND THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF YOU AND OF THE COMPANY, SHALL BE GOVERNED BY AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY AND YOU AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN SECTION 21 ABOVE, THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE ENTIRE RELATIONSHIP BETWEEN AND AMONG THEM, INCLUDING WITHOUT LIMITATION, ALL ISSUES OR CLAIMS ARISING OUT OF, RELATING TO, IN CONNECTION WITH, OR INCIDENT TO THESE TERMS AND ANY TRANSACTIONS IT CONTEMPLATES, WHETHER SUCH CLAIMS ARE BASED IN TORT, CONTRACT, OR ARISE UNDER STATUTE OR IN EQUITY. THE COMPANY AND YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS MADE AND PERFORMED IN THE STATE OF DELAWARE.
23.3 WAIVER OF JURY TRIAL. THE COMPANY AND YOU HEREBY WAIVE TRIAL BY JURY IN ANY COURT PRESIDING OVER ANY ACTION, CONTROVERSY OR PROCEEDING ARISING UNDER THIS AGREEMENT AND/OR WITH RESPECT TO THE TRANSACTIONS THAT IT CONTEMPLATES, INCLUDING ALL ISSUES CONCERNING THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE COMPANY AND YOU, UNLESS THIS WAIVER IS PROHIBITED BY LAW. THE COMPANY AND YOU HEREBY ACKNOWLEDGE THAT THIS WAIVER IS MADE IRREVOCABLY, UNCONDITIONALLY, KNOWINGLY AND VOLUNTARILY.
23.4 Privacy Policy. Please read the Company’s Privacy policy located at http://www.76research.com/privacy-policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Company’s Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
23.5 Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Company’s website (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
23.6 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. YOU HEREBY AUTHORIZE THE COMPANY TO SEND, AND YOU CONSENT TO THE RECEIPT OF, EMAILS, “SMS” (I.E., “TEXT”) OR VOICE ALERTS, FOR THE FOLLOWING DESIGNATED PURPOSES: (A) TO NOTIFY YOU WHEN A PAYMENT IS APPROVED OR ACTIVATED; (B) TO NOTIFY YOU THAT THE COMPANY NEEDS ADDITIONAL INFORMATION TO PROVIDE THE SERVICES; (C) TO NOTIFY YOU OF LOYALTY OR MARKETING CAMPAIGNS, SPECIAL OFFERS, APPOINTMENTS OR PURCHASE CONFIRMATIONS; (D) TO NOTIFY YOU OF NEW SERVICES OR FEATURES OFFERED BY THE COMPANY; (E) TO NOTIFY YOU THAT THE COMPANY IS TRYING TO REACH YOU; (F) TO NOTIFY YOU OF CUSTOMER SERVICE ISSUES; (G) TO NOTIFY YOU OF SERVICE OUTAGES; AND (H) TO NOTIFY YOU OF ANY MATTERS RELATING TO YOUR ACCOUNT. YOU UNDERSTAND THAT YOU WILL RECEIVE FUTURE SMS OR VOICE ALERTS FOR THE AFOREMENTIONED PURPOSES BY OR ON BEHALF OF THE COMPANY TO THE WIRELESS PHONE NUMBER PROVIDED BY YOU AND, HAVING RECEIVED AND REVIEWED THESE DISCLOSURES, YOU UNAMBIGUOUSLY AUTHORIZES THE COMPANY TO DELIVER OR CAUSE TO BE DELIVERED, AND AGREES TO RECEIVE, EMAILS AND SMS ALERTS. YOU ACKNOWLEDGE THAT THE WIRELESS PHONE NUMBER PROVIDED IS IN THE NAME OF AND CONTROLLED BY YOU, THAT YOUR CONSENT IS VOLUNTARY AND NOT REQUIRED (DIRECTLY OR INDIRECTLY) AS A CONDITION TO THE RECEIPT OF SERVICES FROM THE COMPANY IN ACCORDANCE WITH THESE TERMS, AND THAT YOU HAVE THE RIGHT TO WITHDRAW THIS CONSENT AT ANY TIME BY PROVIDING THE COMPANY WITH WRITTEN NOTICE OF SUCH WITHDRAWAL IN ACCORDANCE WITH THESE TERMS.
23.7 Contact Information. You may contact us at c/o 76research, 1201 Kings Highway – Suite 2 #1182, Fairfield, CT 06824 or by emailing us at legal@76research.com.
23.8 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
23.9 No Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
23.10 International Use. The Services is intended for visitors located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.
23.11 Confidentiality. You acknowledge that any oral or written information including but not limited to technical specifications; ideas, concepts, models, strategies, source code, object code; or service design; exchanged between the Parties in connection with the preparation and performance of these Terms or the Services are regarded as confidential information (“Confidential Information”). You shall maintain confidentiality of all such Confidential Information, and, without obtaining the written consent of the Company, you shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is in the public domain (other than through your unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations or orders of the court or other government authorities. Disclosure of any Confidential Information by the staff members or agencies hired by you shall be deemed disclosure of such confidential information by you, and you shall be held liable for breach of this Section 23.11. This Section shall survive the termination of these Terms for any reason.
23.12 Publicity. Neither you nor we shall refer to the identity of the other party in promotional material, publications or other forms of publicity relating to the Services unless the prior written consent of the other party has been obtained.
23.13 Release. If you have a dispute with one or more third parties, you release the Company (and its officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
23.14 Force Majeure. The Company shall not be liable for any issues or delayed performance caused by circumstances beyond its reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, pandemic or epidemic, acts of terror, strikes or other labor problems, service provider failures or delays (each, a “Force Majeure”).
23.15 System Availability. The Company will use commercially reasonable efforts to make the Services available at all times except for: (a) planned downtime for routine maintenance or system updates, or (b) any unavailability due to Force Majeure. The Company will endeavor to notify you in advance of any planned downtime.
23.16 Assignment. The rights and responsibilities of you under these Terms may not be assigned by you, directly or by operation of law, without the prior written consent of the Company, which may be withheld in its sole discretion. You may not assign your obligations under these Terms without the prior written consent of the Company, which may be withheld in its sole discretion.
23.17 Non-Disparagement. You agree not to disparage the Company or its respective vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of the Company or its respective vendors.
24. Effectiveness. These Terms are effective as of March 1, 2024.