Terms of Service and End User License Agreement
Last Updated: [July 19, 2023]
Welcome, and thank you for your interest in the beta release of our mobile application and our website at www.alphyco.com, along with our related websites, applications, and other services (collectively, the “Beta Service”) that is being made available by Alpha Certification, Inc. (“Alphy,” “we,” or “us”). These Beta Terms of Service and End User License Agreement are a legally binding contract between you and Alphy regarding your use of the Beta Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE BETA SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE BETA SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS SET FORTH IN THIS BETA TERMS OF SERVICE AND END USER LICENSE AGREEMENT, INCLUDING ALPHY’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Beta Service. YOUR USE OF THE BETA SERVICE, AND ALPHY’S PROVISION OF THE BETA SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ALPHY AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ALPHY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16)
1. Alphy Beta Service Overview. Alphy is a technology platform to advance women. Our mobile app offers job listings, learning opportunities, news, and networking with a community of professional women.
2. Eligibility. You must be at least 18-years old to use the Beta Service. 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 Beta Service; and (c) your registration and your use of the Beta Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access most features of the Beta Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at info@alphyco.com.
4. Pre-commercial Beta Release.Alphy has neither commercially released the Beta Service nor tested it yet like other commercially released software that you may use. Therefore, it is likely that the Beta Service will contain errors, including errors that may cause the Beta Service to malfunction or cause a loss of data. Alphy is not obligated to correct errors, correct the effects of errors, or provide any technical support related to use of the Beta Service. The Beta Service may access applications or other materials on your devices provided by you or third parties (collectively, “Third Party Content”). Alphy is not responsible in any way for your use of Third Party Content and any resulting damages. YOU CHOOSE TO USE THE BETA SERVICE AND ANY THIRD PARTY CONTENT AT YOUR OWN RISK.
5. Licenses
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Alphy grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Beta Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) use the mobile application to access and use the Beta Service. The mobile application will only work on supported mobile devices. Please see the documentation on the Beta Service to learn which are supported.
5.2 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 Beta Service; (b) make modifications to the Beta Service; or (c) interfere with or circumvent any feature of the Beta Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Beta Service, you may not use it.
5.3 Testing and Evaluating the Beta Service. Alphy may periodically request that you provide, and you agree to provide to Alphy, feedback regarding the use, operation, and functionality of the Beta Service (“Feedback”), including any information about known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. You grant Alphy a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up, fully sublicensable, and transferable right to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and exploit the Feedback without restriction.
5.4 Ownership; Proprietary Rights. The Beta Service is owned and operated by Alphy. 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 Beta Service (“Materials”) provided by Alphy are protected by intellectual property and other laws. All Materials included in the Beta Service are the property of Alphy or its third-party licensors. Except as expressly authorized by Alphy, you may not make use of the Materials. Alphy reserves all rights to the Materials not granted expressly in these Terms.
6. Third-Party Terms
6.1 Third-Party Services and Linked Websites. Alphy may provide tools through the Beta Service that enable you to export information, including User Content (defined below), to third-party services, including through features that allow you to link your account on Alphy with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Alphy may transfer that information to the applicable third-party service. Third-party services are not under Alphy’s control, and, to the fullest extent permitted by law, Alphy is not responsible for any third-party service’s use of your exported information. The Beta Service may also contain links to third-party websites. Linked websites are not under Alphy’s control, and Alphy is not responsible for their content.
6.2 Third-Party Software. The Beta Service 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 Beta Service is 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.
7. User Content
7.1 User Content Generally. Certain features of the Beta Service may permit users to upload content to the Beta Service, including messages, forum posts, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Beta Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Beta Service.
7.2 Limited License Grant to Alphy. By providing User Content to or via the Beta Service, you grant Alphy a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
7.3 Limited License Grant to Other Users. By providing User Content to or via the Beta Service to other users of the Beta Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Beta Service.
7.4 Specific Rules for Photographs and Images. If you post a photograph or image to the Beta Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Beta Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
7.5 User Content Representations and Warranties. Alphy disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Beta Service. By providing User Content via the Beta Service, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Alphy and users of the Beta Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Alphy, the Beta Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Alphy to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
7.6 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Alphy 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 Beta 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 Alphy 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, Alphy does not permit copyright-infringing activities on the Beta Service.
7.7 Monitoring Content. Alphy 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 Beta Service by its users. You acknowledge and agree that Alphy reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Beta Service for operational and other purposes. If at any time Alphy chooses to monitor the content, Alphy 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 (defined below).
8. Communications
8.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
9. Prohibited Conduct. BY USING THE BETA SERVICE, YOU AGREE NOT TO:
a. use the Beta Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Beta Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
d. interfere with security-related features of the Beta Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Beta Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Beta Service or any user’s enjoyment of the Beta Service, 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 Beta 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 Beta Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Beta Service account without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5.3) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Copyright and Intellectual Property Protection
10.1 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 Beta Service, you may contact our Designated Agent at the following address:
Alpha Certification, Inc.
Attn: Legal Department (Copyright Notification)
9323 N. Government Way #122 Hayden, ID 83835
(415) 728-3566
Email: info@alphyco.com
10.2 Content of Notification. Any notice alleging that materials hosted by or distributed through the Beta Service 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 on the Beta Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Beta Service of which you are complaining is not authorized by the copyright or intellectual property 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.
10.3 Repeat Infringers. Alphy will promptly terminate the accounts of users that are determined by Alphy to be repeat infringers.
11. Modification of Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Beta Service. Material modifications are effective upon the earliest of your receipt of notice or acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Beta Term, Termination, and Modification of the Beta Service
12.1 Beta Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Beta Service, and ending when terminated as described in Section 12.2 (the “Beta Term”).
12.2 Termination. If you violate any provision of these Terms, your authorization to access the Beta Service and these Terms automatically terminate. In addition, Alphy may, at its sole discretion, terminate these Terms or your account on the Beta Service, or suspend or terminate your access to the Beta Service, 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 info@alphyco.com.
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Beta Service and (b) you will no longer be authorized to access your account or the Beta Service; and (c) Sections 4, 5.3, 5.3, 12.3, 13, 14, 15, 16, and 17 will survive.
12.4 Modification of the Beta Service. Alphy reserves the right to modify or discontinue the Beta Service at any time (including by limiting or discontinuing certain features of the Beta Service), temporarily or permanently, without notice to you. Alphy will have no liability for any change to the Beta Service or any suspension or termination of your access to or use of the Beta Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Beta Service, and you will defend and indemnify Alphy, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Alphy Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Beta Service; (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; or (d) any dispute or issue between you and any third party. 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.
14. Disclaimers; No Warranties
14.1 THE BETA SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE BETA SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ALPHY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE BETA SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE BETA 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 TRADE. ALPHY DOES NOT WARRANT THAT THE BETA SERVICE OR ANY PORTION OF THE BETA SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE BETA SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ALPHY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE BETA SERVICE OR ALPHY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE BETA SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ALPHY ENTITIES OR THE BETA SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE BETA SERVICE AND YOUR DEALING WITH ANY OTHER BETA SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE BETA SERVICE 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 BETA SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
14.3 THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 14 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Alphy does not disclaim any warranty or other right that Alphy is prohibited from disclaiming under applicable law.
15. Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ALPHY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE BETA SERVICE OR ANY MATERIALS OR CONTENT ON THE BETA SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ALPHY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.2 EXCEPT AS PROVIDED IN SECTION 16.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ALPHY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE BETA SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO ALPHY FOR ACCESS TO AND USE OF THE BETA SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Alphy in the most expedient and cost effective manner, and except as described in Section 16.2 and 16.4, you and Alphy agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ALPHY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Alpha Certification, Inc., Attention: Legal Department – Arbitration Opt-Out, 9323 N. Government Way #122 Hayden, ID 83835 that specifies: your full legal name, the email address associated with your account on the Beta Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Alphy receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator. Any arbitration between you and Alphy will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Alphy. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Alphy’s address for Notice is: Alpha Certification, Inc., 9323 N. Government Way #122 Hayden, ID 83835. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Alphy may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Alphy must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Alphy in settlement of the dispute prior to the award, Alphy will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
16.6 Fees. If you commence arbitration in accordance with these Terms, Alphy will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Kootenai County, Idaho, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Alphy for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7 No Class Actions. YOU AND ALPHY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Alphy agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8 Modifications to this Arbitration Provision. If Alphy makes any future change to this arbitration provision, other than a change to Alphy’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Alphy’s address for Notice of Arbitration, in which case your account with Alphy will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9 Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Alphy receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
17. Miscellaneous
17.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Alphy regarding your use of the Beta Service. 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.
17.2 Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Alphy submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Kootenai County, Idaho for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Beta Service from our offices in Idaho, and we make no representation that Materials included in the Beta Service are appropriate or available for use in other locations.
17.3 Privacy Policy. Please read the Alphy Privacy Policy [link to privacy policy] (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Alphy Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
17.4 Additional Terms. Your use of the Beta Service is subject to all additional terms, policies, rules, or guidelines applicable to the Beta Service or certain features of the Beta Service that we may post on or link to from the Beta Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Consent to Electronic Communications. By using the Beta 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.
17.6 Contact Information. The Beta Service is offered by Alpha Certification, Inc., located at 9323 N. Government Way #122 Hayden, ID 83835. You may contact us by sending correspondence to that address or by emailing us at info@alphyco.com.
17.7 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 +1-800-952-5210 in order to resolve a complaint regarding the Beta Service or to receive further information regarding use of the Beta Service.
17.8 No Support. We are under no obligation to provide support for the Beta Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use. The Beta Service is intended for visitors located within the United States. We make no representation that the Beta Service is appropriate or available for use outside of the United States. Access to the Beta Service from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Alphy only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Beta Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Beta Service. If the Beta Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Beta Service. Apple is not responsible for addressing any claims by you or any third party relating to the Beta Service or your possession and/or use of the Beta Service, including: (1) product liability claims; (2) any claim that the Beta Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Beta Service and/or your possession and use of the Beta Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Beta Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.