1. Eligibility. By agreeing to these Terms, you represent and warrant to us: (i) that you have not previously been suspended or removed from the Services; and (ii) that your use of the Services is in compliance with any and all applicable laws and regulations. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
2. Content. You understand that when using the Services you may be exposed to content from a variety of sources and acknowledge that such content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against the Company with respect to content in the Services. We expressly disclaim any and all liability in connection with such content. You hereby acknowledge that the content in the Services is not medical or health advice and that such content should not be relied upon by you or others in making any medical, health, or other decisions.
3. Prohibited Conduct. BY USING THE SERVICES YOU AGREE NOT TO:
3.1 use the Services for any illegal purpose, or in violation of any local, state, national, or international law;
3.2 violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
3.3 interfere with security-related features of the Services, including without limitation, 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 the Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;
3.4 interfere with the operation of the Services or any user’s enjoyment of the Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Services, (iii) attempting to collect personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
3.5 perform any fraudulent activity including, but not limited to, impersonating any person or entity, claiming false affiliations, accessing the Services accounts of others without permission, or falsifying your age or date of birth;
3.6 sell or otherwise transfer the access granted herein or any Materials (as defined in Section 8 below) or any right or ability to view, access, or use any Materials; or
3.7 attempt to do any of the foregoing in this Section 3, or assist or permit any persons in engaging in any of the activities described in this Section 3.
4. Third-Party Websites. The Services may contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
5. Termination of Use; Discontinuation and Modification of the Services. If you violate any provision of these Terms, your permission to use the Services will terminate automatically. Additionally, the Company, in its sole discretion, may suspend or terminate your access to the Services at any time, with or without notice. The Company also reserves the right to modify or discontinue the Services at any time (including, without limitation, by limiting or discontinuing certain features of the Services) without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Services. These Terms are in effect any time you access the Services.
6. Additional Terms. Your use of the Services is subject to any and 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 on the Services (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Services, subject to Section 7. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
7. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Services. Material modifications are effective upon your acceptance of such the modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose.
8. Ownership; Proprietary Rights. The Services are owned and operated by the Company. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), as well as any products, software, and services, and all other elements of the Services (the “Materials”) provided by the Company are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Services are the property of the Company or our third-party licensors. Except as expressly authorized by the Company, you may not make use of the Materials. The Company reserves all rights to the Materials not granted expressly in these Terms.
9. Indemnification. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Company and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Company Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues 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 (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
10. Disclaimers; No Warranties
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE COMPANY ENTITIES DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE COMPANY ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, YOUR DEALINGS WITH OTHER SERVICES USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. Limitation of Liability
IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE COMPANY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE COMPANY ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. 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 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Governing Law. These Terms shall be governed by the laws of the State of Texas without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and the Company agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Travis County, Texas for the purpose of litigating all such disputes.
13. Entire Agreement. These Terms, together with any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and the Company regarding your use of and access to the Services, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights hereunder, 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. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute 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 shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1, and 3 through 15.
14. Dispute Resolution and Arbitration
14.1 Generally. In the interest of resolving disputes between you and the Company in the most expedient and cost effective manner, you and the Company agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal 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. Our agreement to arbitrate disputes includes, but is not limited to 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 the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.2 Exceptions. Notwithstanding subsection 1, you and the Company agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of your or the Company’s right(s) to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
14.3 Arbitrator. Any arbitration between you and the Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting the Company.
14.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Company’s address for Notice is: Genprex, Inc., 100 Congress Avenue, Suite 2000, Austin, Texas 78701. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after we receive the Notice, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
14.5 Arbitration Details. Any arbitration hearings will take place at a location to be agreed upon in Travis County, Texas, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) 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 such case, you agree to reimburse the Company 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 shall 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.
14.6 No Class Actions. YOU AND THE COMPANY 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 the Company 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.
14.7 Modifications. In the event that the Company makes any future changes to this arbitration provision (other than a change to Company’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Company’s address for Notice, in which case your account with the Company shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
14.8 Enforceability. If Subsection 6 is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12 shall govern any action arising out of or related to these Terms.
15. Consent to Electronic Communications. By using the Services, you consent to receiving certain electronic communications from us as. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
16. Contact Information. The Services hereunder are offered by Genprex, Inc., located at 100 Congress Avenue, Suite 2000, Austin, Texas 78701. You may contact us by sending correspondence to the foregoing address or by calling us at (512) 370-4081.