Valcre Terms of Service
Last updated: October, 2022
These Terms of Service (the “Terms”) are between Valcre Inc. (“Valcre,” “our,” “we,” or “us”). If you are agreeing to these Terms not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to these Terms. Valcre may modify these Terms from time to time, subject to the terms in Section 23 (Changes to these Terms) below. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox), use or access the Services, or the date listed as the effective date on an applicable Order Form (whichever is earlier) (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you sign up for the Services or place an order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.
By using the Services, you agree to be bound by the Binding Arbitration Clause and Class Action Waiver described in Section 22.
2 Our Services.
2.1 General We offer a subscription-based service that allows users to generate professional and customized appraisals, together with any accompanying services as more specifically defined in an Order Form (the “Services”). Subject to and conditioned on your compliance with these Terms, Valcre grants You a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services solely for Your personal or internal use during the term for the Services. By subscribing to the Services, you will have access to Your Data (as defined below) via https://app.valcre.com or other applicable platform made available via the Services. The Services are made available to you through a password-protected, hosted interface and dashboard provided by us. We reserve the right to modify the Services (in whole or in part) at any time, provided we do not materially reduce the functionality of the Services. We may impose new, or may modify existing, storage limits for the Services at any time in our discretion, with or without notice to you.
2.2 Valcre Professional & Enterprise. If you purchase the Valcre Professional of Enterprise product, the additional terms specific to Valcre Professional and Enterprise located at www.valcre.com/terms-of-service-professional are incorporated into this Agreement by reference and shall apply to your use of Valcre Professional. For the avoidance of doubt, Valcre Professional is considered part of the Services.
3 Account Registration. We will setup your Valcre account so that you can access the Services. Any registration information that you provide to us must be accurate, current and complete. You must keep your account information updated so that we may send notices, statements and other information to you by email or through your account. You are responsible for maintaining the confidentiality of your login credentials.
4 Order Forms. The parties will enter into one or more written or online order forms that incorporate this Agreement and specify the specific Services to be provided thereunder (“Order Form”), including your authorized scope of use for the Services, which may include: (a) number and type of Authorized User (as defined below), (b) numbers of licenses, copies or instances, or (c) other restrictions or billable units (as applicable, the “Scope of Use”). Any change or amendments to these Terms within an Order Form will apply only to the Services described therein. Any additional terms or conditions that are part of any Customer purchase order documents shall not become part of these Terms and are hereby expressly rejected.
5 Authorized Users.
5.1 Generally. Only the individual users for whom you have paid the required monthly fees and whom you designate through your Valcre account may access and use the Services (“Authorized Users”). Only one person may use each license that is purchased (i.e., they may not be shared).
5.2 Authentication. Valcre will use your email and password as a means to authenticate the identity of an Authorized User. Valcre is under no obligation to confirm the actual identity or authority of any party accessing your account. You must ensure that your Authorized Users keep their passwords for the Services strictly confidential and do not share such information with any unauthorized person. You are responsible for compliance with these Terms by all Authorized Users. You are responsible and liable for all uses of the Services due to your acts or omissions, including through access thereto provided by you, directly or indirectly. You agree to immediately notify Valcre of any unauthorized use of which you become aware.
5.3 Different Types of Uses. Some Services may allow you to designate different types of Authorized Users, as described in an Order Form, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may include only you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity. You may increase the number of Authorized Users by giving written notice to Valcre of the increase and then you must pay the applicable fee for the increased number of Authorized Users for the remainder of the then-current term. You are responsible for compliance with these Terms by all Authorized Users. All use of Services by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates.
6.1 General. Services that are provided on a subscription basis will be specified in your Order Form. Except as otherwise specified in your Order Form, all subscriptions will automatically renew for periods equal to your initial subscription term (and you will be charged at the then-current rates) unless you cancel your subscription by providing at least thirty (30) days’ notice prior to the end of the then-current subscription term. If you have a month-to-month subscription and provide us notice of intent to cancel mid-term your subscription and right to access the Services will terminate at the end of the subsequent billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
7. Your Data.
7.1 General. “Your Data” means any job information, client information, property information, comparable appraisal information, images, PDFs, Excel and Word documents, or items you upload, submit, or otherwise transmit to or through the Services. You will retain all right, title and interest in and to Your Data. Subject to these Terms, you hereby grant to Valcre a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Services to you and (b) for Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you or your Authorized Users direct or enable through the Services.
7.2 Responsibility for Your Data.
7.2.1 Rights to Data. You must ensure that your use of Services and all Your Data is at all times compliant with these Terms and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to (a) submit Your Data to Valcre and the Services and (b) to grant the rights granted to Valcre in these Terms, and (ii) Your Data and its transfer to and use by Valcre as authorized by you under these Terms do not violate any Laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Valcre assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
7.2.2 Indemnity for Your Data. You will defend, indemnify and hold harmless Valcre from and against any loss, cost, liability or damage for which Valcre becomes liable arising from or relating to any third-party claim, including without limitation privacy right violations, relating to Your Data or your submission of Your Data to the Services.
7.3 Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time after the termination of your subscription term, and in any case after 30 days.
8. Security. Valcre implements commercially reasonable technical and organizational measures to protect Your Data from security attacks. However, we cannot guarantee that our security procedures will be error-free, that transmissions of Your Data to and from our hosted environment will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. We do not guarantee that your Information will not be misused by third parties. We are not responsible for the circumvention of any privacy settings or security features. You agree that we will not have any liability for misuse, access, acquisition, deletion, or disclosure of your Information.
9 Support. Valcre will provide limited email and phone support for its Services (“Support”) during the Subscription Term.
10 Training Services. We may also provide training services when purchased in an Order Form in accordance with the descriptions and conditions for those services set forth in the Order Form and the accompanying service descriptions or datasheets (“Ancillary Services”). For the avoidance of doubt, Ancillary Services are considered the Services. Valcre shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Valcre maintains a training site where users can download and view Training Materials, including video, at http://support.valcre.com. Any Training Materials provided to you may be used only in connection with the Services subject to these Terms and the same use restrictions for the Services.
11 Delivery of Credentials and Financial Terms.
11.1 Delivery. We will deliver access credentials to you when we have received payment of the applicable fees. All deliveries under these Terms will be electronic.
11.2 Payment. You agree to pay all fees in accordance with each Order Form. Unless otherwise specified in your Order Form, you will pay all amounts in U.S. dollars within 30 days after the Effective Date of your Order Form. All amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Services beyond the current subscription term or any Services upgrades or feature enhancements. If you add Authorized Users during your Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
11.3 Taxes. Your payments under these Terms exclude any taxes or duties payable in respect of the Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Valcre, you must pay to Valcre the amount of such taxes or duties in addition to any fees owed under these Terms.
12 No-Charge Services. We may offer access to “No-Charge Services,” which are certain Services and/or new features to you at no charge, including free accounts, trial use, and access to pre-release Services and beta features within generally available Services that we make available to you (“Beta Versions”). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted for the period designated by us. You understand that any Beta Versions are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 12 (No-Charge Services). All information regarding the characteristics, features or performance of Beta Versions constitutes Valcre’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any Support, warranty, and indemnity obligations.
13 Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Services to a third party, (b) use the Services for the benefit of any third party, , (c) interfere with any license key mechanism in the Services or otherwise circumvent mechanisms in the Services intended to limit your use, (d) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, except as permitted by law, (e) remove or obscure any proprietary or other notices contained in any Services, (f) publicly disseminate information regarding the performance of the Services, (g) interfere with, disrupt, or create an undue burden on the website or the networks or services connected to the Services, (h) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, malicious code, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services, (i) use the Services in violation of Section 15, or (j) perform any acts or functions that may be deemed a breach or violation of these Terms. The use restrictions described in this section form part of the Scope of Use for the Services.
14 Audits. At our written request, you agree to provide a signed certification that you are using all Services pursuant to these Terms, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Services. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Valcre at law or equity or under these Terms.
15 Term and Termination.
15.1 Term of these Terms. These Terms shall commence on the Effective Date and shall continue until the earlier of (i) the expiration or termination of all Order Forms and (ii) termination of these Terms pursuant to the provisions hereof.
15.2 Term of Order Form. The term of the applicable Services and any subscription will be specified on each Order Form.
15.3 Termination for Cause. Either party may terminate these Terms or an Order Form if the other party materially breaches any term in these Terms or an Order Form and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate these Terms or an Order Form if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
15.4 Effect of Termination. Upon termination of these Terms or an Order Form for any reason, (i) your access rights granted hereunder shall also terminate, and You shall cease using the Services, and (ii) you will immediately return or destroy any Valcre Confidential Information. The following provisions will survive any termination or expiration of these Terms: Sections 7.2.2 (Indemnity for Your Data), 11.2 (Payment), 11.3 (Taxes), 12 (No-Charge Services) (disclaimers and use restrictions only), 13 (Restrictions), 14 (Audits), 15 (Term and Termination), 16 (Valcre Intellectual Property), 17 (Confidentiality), 18.2 (Warranty Disclaimer), 19 (Limitation of Liability) 22 (Arbitration, Governing Law and Jurisdiction), and 24 (Miscellaneous Provisions).
15.5 Return of Data. In the event of your cancellation of these Terms and upon your request, Valcre will return your data within a reasonable timeframe, as determined by Valcre. Any such request for return of data must be made within five (5) days after termination of these Terms.
16 Valcre Intellectual Property.
16.1. The Services and, where applicable, Software (as defined in the Valcre Professional and Enterprise terms), are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Valcre and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Services and Software (including all No-Charge Services), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Valcre (“Valcre Technology”). No such rights are transferred on the basis of this Agreement to You.
16.2. You agree not to delete, amend, or cover any logos, trademarks or other visual branding assets associated with Valcre and/or the Services (including squeezing, stretching, inverting, or discoloring).
16.3. As a condition of using the Services, you agree that you will not (i) use the Services and any other Valcre intellectual property as part of any effort to compete with Valcre; (ii) use the Services and any other Valcre intellectual property for any revenue-generating endeavor or commercial enterprise; (iii) create derivative works of the Services; or (iv) incorporate any part of the Services or any other Valcre intellectual into a product or service you provide to a third party. In the event that you use any Valcre intellectual property in violation of this Agreement, you hereby make a present assignment of all current and all future intellectual property for any and all modified, derivative and/or related intellectual property based on or arising from Valcre intellectual property, whether created in whole or only in part by you or any Affiliate. You acknowledge that your violation of this Section 16.3 would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such violation or suspected violation, Valcre shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. You further agree to indemnify Valcre for your violation of this Section 16.3 and pay any and all damages arising from such violation, including without limitation indirect, special, incidental, and consequential damages, as well as damages arising from loss of business.
16.4. From time to time, you may choose to submit comments, information, questions, ideas, data, description of processes, or other information suggesting changes, modifications or improvements relating to the Valcre Services (“Feedback”). All Feedback shall be solely owned by Valcre (including all intellectual property rights therein) and shall also be Valcre’s confidential information. Valcre may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Feedback shall not be considered your Confidential Information, and nothing in these Terms limits Valcre's right to independently develop, evaluate, use or market products and services, whether incorporating Feedback or otherwise.
17 Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. The Services, any Valcre Technology, and any performance information relating to the Services shall be deemed Confidential Information of Valcre without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information as shown by the Receiving Party’s files and records provided that Receiving Party provides such notice to the Disclosing Party upon disclosure of information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information as shown by contemporaneous documents and other competent evidence in the Receiving Party’s possession. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order, provided that the Receiving Party provides the Disclosing Party prior written notice to allow the Disclosing Party to obtain a protective order or other remedy (to the extent legally permitted provided that the Receiving Party provides. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Services.
18 Warranties and Warranty Disclaimer.
18.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
18.2 WARRANTY DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VALCRE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. WE SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
19 LIMITATION OF LIABILITY. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR SERVICES AND SUPPORT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SERVICES SHALL BE US$20. THIS SECTION 19 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDER FORMS, (2) YOUR INDEMNIFICATION OBLIGATIONS, (3) EITHER PARTY’S BREACH OF SECTION 17 (CONFIDENTIALITY), (4) YOUR BREACH OF SECTION 7.2.2 “RIGHT TO DATA,” (5) YOUR BREACH OF SECTION 13 (RESTRICTIONS), OR (6) YOUR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, INCLUDING WITHOUT LIMITATION BREACH OF SECTION 16.3. The parties agree that the limitations specified in this Section 19 (Limitation of Liability) will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
20 Publicity Rights. We may identify you as a Valcre customer in our promotional materials. You may request that we stop doing so by submitting an email to email@example.com at any time. Please note that it may take us up to 30 days to process your request.
22 Arbitration, Governing Law and Jurisdiction.
22.1 ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
22.1.2 Arbitration Notice.
You and Valcre agree that if there any dispute or claim arising from or related to our Services and/or these Terms (except for Exempt Claims, as defined below) will be resolved by confidential binding arbitration, rather than in court, after first giving Notice of the Dispute (“Notice”) to the other party and the opportunity to discuss resolution within thirty (30) days of such Notice. The Notice to the Company should be sent to: Valcre Inc., Attn: Legal, 5580 La Jolla Boulevard #86, La Jolla, CA, 92037. This Notice must include a description of the nature and basis of the claims the party is asserting, and the relief sought.
If You and Valcre are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, You or the Company may initiate arbitration proceedings. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the provisions of these Terms & Conditions as a court would. YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.
The Federal Arbitration Act and federal arbitration law apply and the American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
The arbitration shall be held in San Diego, California or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and the Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and the Company, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by applicable law. The arbitrator will also decide any questions relating to the interpretation, applicability, or enforceability of this arbitration clause (“Arbitration Clause”), except where a party files a claim in court because it is an Exempt Claim (as defined below). The arbitrator’s award shall be confidential, final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding any provision in these Terms to the contrary, you and the Company agree that if the Company makes any change to this Section (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate this Section, any such termination shall not be effective until thirty (30) days after the version of these Terms containing this Section is posted to the websites, and shall not be effective as to any claim that was filed in a proceeding against us prior to the effective date of termination.
CLASS-WIDE ARBITRATION WAIVER:
YOU AND WE AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS-WIDE ARBITRATION. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.
EXEMPT CLAIMS: You and the Company agree that the following two types of claims are not required to be submitted to an arbitration subject to the following conditions:
(1) You or we are not required to arbitrate a claim brought on an individual basis in small-claims court. However, if (a) there is an appeal from small-claims court, or (b) a change in the claim that renders the small-claims court unable to resolve the claim, then the claim must be resolved in an arbitration under the terms of this Arbitration Clause.
(2) You or we are not required to arbitrate a claim brought on an individual basis to enjoin infringement or other misuse of intellectual property rights. Such a claim may be brought in any court of competent jurisdiction. You and we agree that the infringement or other misuse of intellectual property rights could cause irreparable harm for which monetary damages are an inadequate remedy. The prevailing party in an action to enjoin infringement or other misuse of intellectual property rights is entitled to recover costs and fees (including reasonable attorneys’ fees) in pursuing that remedy.
OPT OUT: You may opt-out of this mandatory Arbitration Clause by writing us within sixty (60) calendar days of your agreement to this Arbitration Clause, by mail to 5580 La Jolla Boulevard #86, La Jolla, CA, 92037. Include your company name, address, and date in the correspondence. This is the only way you can opt-out.
22.1.3 CLASS ACTION WAIVER: YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that You or the Company may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
22.1.4 Claims and Disputes Must be Filed Within One Year
To the extent permitted by law, and without limiting the effect of any disclaimer contained herein, any cause of action or claim you may have with respect to your use of the Services, including, without limitation, any website or mobile application or other Services-related product, services, or other content must be commenced within one (1) year after the claim or cause of action arises. This section applies to you and your heirs, successors and assigns.
22.2 Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of California, without giving effect to the principles of that State relating to conflicts of laws.
22.3 Injunctive Relief. Notwithstanding the provisions of Sections 20.1 and 20.2 (Dispute Resolution; Arbitration), nothing in these Terms shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
23 Changes to these Terms. We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order Form, posting on our blog, through your Valcre account, or in the Services itself). If we modify the Terms during your Subscription Term, the modified version will be effective upon your next renewal of the Subscription Term, In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Services, accepting the updated Terms is required for you to continue using the No-Charge Services. You may be required to click through the updated Terms to show your acceptance. If you do not agree to the updated Terms after they become effective, you will no longer have a right to use No-Charge Services. For the avoidance of doubt, all Order Forms are subject to the version of the Terms in effect at the time of the Effective Date of your Order Form.
24 Miscellaneous Provisions. Any notice under these Terms must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. Notices sent to Valcre shall be sent to Valcre Inc., Attn: Legal, 5580 La Jolla Boulevard #86, La Jolla, CA, 92037. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign these Terms without our prior written consent, which We will not unreasonably withhold. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. These Terms and any applicable Order Forms constitute the entire agreement between you and Valcre relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by these Terms. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to these Terms in exercising any right, power or privilege shall operate as a waiver thereof. The parties are independent contractors. These Terms shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
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