Terms Of Use And End User License Agreement

This Spokin, Inc. Terms of Use and End User EULA Agreement (“Terms”) is a binding contract between you and Spokin, Inc. and its affiliates (“Spokin,” “we,” or “us”) governing your use of the Spokin website, at http://www.spokin.com, (the “Website”), any application programming interfaces made available by us (“APIs”), and any mobile application referencing these Terms (the “App”), along with any related websites, networks, or other services provided by us (Websites, APIs, and Apps are, collectively, the “Service”).

By Installing Any Of The Apps, Apis, Or Otherwise Accessing Or Using The Service, You Acknowledge That You Have Read, Understood, And Agree To Be Bound By These Terms. If You Are Using The Service On Behalf Of A Company, Entity, Or Organization, Then You Represent And Warrant That You: (A) Are An Authorized Representative Of That Entity With The Authority To Bind That Entity To These Terms; And (B) Agree To Be Bound By These Terms On Behalf Of That Entity. If You Do Not Agree, Then You May Not Use The Service.

  1. Summary of Material Terms. As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
    1. The APIs and Apps that you acquire rights to is licensed, not sold to you, and that you may use the APIs and Apps only as set forth in these Terms;
    2. The use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
    3. you consent to the collection, use, and disclosure of your personally identifiable information in accordance with the Privacy Policy;
    4. the Service is provided “as is” without warranties of any kind, and Spokin’s liability to you is limited;
    5. the Service may require access to the following services on your mobile devices: GPS for location data; user notifications for push notifications, alerts, and icon badging.
    6. if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” in Section 24.
  2. Service Overview. Spokin provides a platform for people to quickly and privately find information, resources, and other people interested in certain health issues.
    1. License Grant to You. The Service is licensed, not sold, to you by Spokin for use only under the terms of these Terms, and Spokin reserves all rights not expressly granted to you. The contents of the Service include: designs, text, graphics, images, emoji and avatar-related images and all combinations of emoji and avatar-related images, video, information, logos, button icons, software, audio files, computer code, and other Spokin content regardless of form (i.e., whether video, paper, electronic or otherwise), whether tangible or intangible, or whether existing now or in the future, and provided by Spokin or its licensors on the Service (collectively, “Spokin Content”). All Spokin Content and the compilation (meaning the collection, arrangement, and assembly) of all Spokin Content are the property of Spokin or its licensors and are protected under copyright, trademark, and other laws. Subject to your complete and ongoing compliance with the terms and conditions of these Terms, Spokin hereby grants you a limited, revocable, non-transferable, non-exclusive license to: (i) install and use the Apps for personal use on compatible, authorized devices that you own or control, subject to any limits specified when you acquire the Apps from us; (ii) access and use the APIs, and send and receive calls from the APIs, in the manner described by any accompanying documentation; and (iii) access and use the Website and Spokin Content; in each case solely for your own use or for the entity on whose behalf you are authorized to act. This license is non-transferable and revocable at any time without notice and with or without cause. Spokin Content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing that content. Unauthorized use of the Company Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited.
    2. Spokin Marks. “Spokin,” the Spokin logo, and other Spokin logos and product and service names are or may be trademarks of Spokin (the “Spokin Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use the Spokin Marks in any manner. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Spokin Content on any copy you make of the Spokin Content. Spokin retains all right, title and interest in and to all Spokin Content.
    3. For Educational and Informational Purposes Only. The Service provides information, not medical, legal, or psychological advice, diagnoses, or treatment. The Service may provide helpful health-related information, but it is not intended to substitute for professional advice, diagnoses, or treatment, or your judgment. You acknowledge that all of the information and content on the Service is provided “as is” for educational and informational purposes only. You assume full risk and responsibility for the use of or reliance on information you obtain from or through the Service.
    4. Spokin Is Not Required to Comply with HIPAA. Spokin is NOT providing you with “covered health services” as such term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”). Any information that you provide to us through the Service will NOT be deemed in any way “protected health information,” and as such, Spokin shall NOT be obligated to handle that information in the manner required by HIPAA. You acknowledge and agree that you will not assert against Spokin any claims arising under HIPAA. You may read our Privacy Policy to understand how we collect, use, disclose, and protect information you post to the Service.
    5. No Patient or Client Relationship. Your use of the Service does not create a patient or client relationship with Spokin. You should consult with qualified health professionals who are familiar with your individual medical needs concerning your specific medical issues. Never disregard professional advice or delay in seeking it because of information you read on the Service.
    6. Medical Emergency. If you think you may have a medical emergency, call your doctor or 911 immediately. We do not recommend or endorse any provider of health care or health-related products, tests, opinions, procedures, items, or services.
    7. We Do Not Screen Users. We do not screen the Service users or verify profile information provided through the Service; though we may at our discretion. We are not responsible for the conduct of users of the Service, including the content of messages posted by users. Contact us at [email protected] to notify of us of inappropriate or illegal conduct or content you encounter on the Service.
    8. Public Areas of the Service Are Not Private. These Terms and the Privacy Policy apply to all user data in the Service. Information you post to the public areas of the Service may be accessed or viewed by other users. You agree that you will not post to any public areas of the Service any information that you would not want to be publicly available. You may subsequently request that we anonymize your posts, but any posts that are part of interactions among users will not be deleted. We urge you to carefully consider potential consequences of posting information on the Service prior to posting it. For example, it is possible that employers, insurance companies, or others may discriminate based on health information.
    9. Messages. You may be able to send messages to others through certain functionality on the Service. You represent and warrant that: (i) you will only send messages to others who have given you their express consent to receive messages; (ii) you, and only you, are responsible for sending messages and Spokin merely acts as a technology platform; and (iii) you will indemnify and hold Spokin harmless from any and all claims arising out of your messages. You are responsible for all fees and charges associated with your messages.
    10. Contacting Users for Media or Research Purposes. You may not contact users for media or research purposes. However, you may contact Spokin and request permission to inquire with users regarding potential interest in a media interview or research study. Grant or denial of your request is in Spokin’s sole discretion. Spokin will not provide Personal Information of users in response to such requests without advance permission from the user.
    11. Applicability to Updates. These Terms will govern any updates provided to you by Spokin that replace or supplement the App, unless the upgrade is accompanied by a separate license or revised Terms, in which case the terms of that license or revised Terms will govern.
    12. Transfer. You may not rent, lease, lend, or sublicense the Service. All components of an App are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. If an App update completely replaces (full install) a previously licensed version of the App, you may not use both versions of the App at the same time nor may you transfer them separately.
  3. Eligibility. You must be at least 13 years of age to register for an account on the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with all applicable laws and regulations; and (d) any family members that you authorize to use your account are at least 13 years of age. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
  4. Accounts and Registration. To access most features of the 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 email address, username, password, zip code, gender, health conditions, best advice 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. 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 have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected].
  5. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars. For information regarding refunds, contact customer service at [email protected]. If Spokin changes the fees for the Service, including by adding additional fees or charges, Spokin will provide you advance notice of those changes. If you do not accept the changes, Spokin may discontinue providing the Service to you. Spokin will charge the payment method you specify at the time of purchase. You authorize Spokin to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Spokin may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
  6. User Content
    1. User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, recommendations, reviews, listings, photos, data, information, text, and other types of works (“User Content”). You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
    2. Limited License Grant to Spokin. By posting or publishing information and User Content, you grant Spokin a perpetual, worldwide, non-exclusive, 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 information and User Content, in whole or in part, in connection with providing the Service and making it publicly available on social media and other online services.
    3. Limited License Grant to Other Users. By posting or sharing information and User Content on the Service, you grant visitors of the Service a non-exclusive license to access and use that information and User Content as permitted by these Terms and the functionality of the Service.
    4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
    5. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Spokin to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Spokin, the Service, and these Terms; and
    6. 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 Spokin to violate any law or regulation.
    7. Responsibility of Users. 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. Spokin 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, any Spokin policy, or is otherwise harmful or objectionable. By operating the Service, Spokin does not represent or imply that it endorses the material on the Service, or that it believes that material to be accurate, useful, or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The User Content may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. User Content may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Spokin disclaims any responsibility for and any liability in connection with any harm resulting from the use of User Content, or from any downloading by users of User Content. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Spokin with respect to User Content.
    8. Digital Millennium Copyright Act.
    9. 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 Service, you may contact our Designated Agent at the following address:
      Spokin Inc.
      ATTN: Legal Department (Copyright Notification)
      P.O. Box 220116
      Chicago, IL 60622
      Email: [email protected]
      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
        1. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
        2. a description of the material that you claim is infringing and where it is located on the Service;
        3. your address, telephone number, and email address;
        4. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
        5. 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.
      2. Repeat Infringers. Spokin has the right to promptly terminate without notice the accounts of users that are determined by Spokin to be Repeat Infringers. A “Repeat Infringer” is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
      1. Consent to Communication
        1. SMS Text Messages. By providing us with your mobile telephone number, you consent to receive text messages at that number as requested for account verification, to respond to your inquiries made by text message, and other purposes related to the Service. While we do not charge a fee for text messages, your carrier may charge standard messaging, data, and other fees. You are responsible for those charges. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of the message, as this is outside our control and is the responsibility of the cellular telephone operator or other networks.
        2. Telephone Calls. You consent to receive autodialed or prerecorded calls from us and our service providers on our behalf at the any telephone number that you have provided to us or that we have otherwise obtained to: (a) notify you regarding your account; (b) resolve a dispute; or (c) otherwise provide our services or enforce these Terms. You are not required to provide your consent to these calls as a condition of purchase on the Service. Standard telephone minute charges may apply. We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we, or our service providers, have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights.
      2. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
        1. Upload any User Content to the Service that is profane, obscene, hateful, abusive, violent, harassing, or otherwise objectionable according to the standards of the Spokin community or Apple’s App Store;
        2. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
        3. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
        4. interfere with security-related features of the 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 Service except to the extent that the activity is expressly permitted by applicable law;
        5. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server; (e) submitting obscene or objectionable material; or (f) bullying visitors or users.
        6. perform any fraudulent activity including impersonating any person or entity, submitting forged or otherwise inaccurate information; claiming a false affiliation, accessing any other Service account without permission, or falsifying your age, gender, or date of birth;
        7. send unsolicited marketing messages or broadcasts (i.e., spam), and we may utilize any means possible to block spammers and abusers from using the Service (If you believe spam originated from the Service, please email us immediately at [email protected]);
        8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 13) or any right or ability to view, access, or use any Material; or
        9. attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.

If you engage in any of the acts described in this Section 8, your license to use the Service will automatically terminate, and in addition to all other remedies that may be available to Spokin at law or in equity, Spokin may and generally will suspend your account on the Service.

  1. Third-Party Services and Linked Websites. Spokin may provide tools through the Service that enable you to export information, including User Content, to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
  2. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at [email protected]. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Spokin may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
  3. Privacy Policy; Additional Terms
    1. Consent to Use of Device Data. You agree that Spokin may collect and use technical and related information, including but not limited to technical information about your device (including device UUID), computer, your physical location, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Apps. Spokin may use this information, as long as it is in a form that does not personally identify you, for analytics purposes (including aggregated and anonymized analytics), to improve our products, or to provide services or technologies to you.
    2. Use of Location-Based Data. The Service may include certain features or services that rely upon device-based location information, which use GPS and other location identification systems. To provide those features or services, where available, Spokin may collect, use, transmit, process and maintain your location data, including but not limited to the geographic location of your device and information related to your account and any devices registered thereunder, as further described in the Privacy Policy. You hereby agree and consent to Spokin’s collection, use, transmission, processing, and maintenance of that location and account data to provide and improve those features or services.
    3. Privacy Policy. Please read the Spokin Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Spokin Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
    4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 12. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
  4. 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. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. 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.
  5. Ownership; Proprietary Rights. The Service is owned and operated by Spokin. 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 Service (“Materials”) provided by Spokin are protected by intellectual property and other laws. All Materials included in the Service are the property of Spokin or our third-party licensors. Except as expressly authorized by Spokin, you may not make use of the Materials. Spokin reserves all rights to the Materials not granted expressly in these Terms.
  6. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback.”), then you hereby grant Spokin an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
  7. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Spokin and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Spokin Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the 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 that claim.
  8. Disclaimers; No Warranties

The Service And All Materials And Content Available Through The Service Are Provided “as Is” And On An “as Available” Basis, Without Warranty Or Condition Of Any Kind, Either Express Or Implied. The Spokin Entities Are Not Responsible For Any Prescriptions Fulfilled Through Or Medications Obtained Via The Service. The Spokin Entities Disclaim All Warranties Of Any Kind, Whether Express Or Implied, Relating To The Service And All Materials And Content Available Through The Service, Including: (A) Any Implied Warranty Of Merchantability, Fitness For A Particular Purpose, Title, Quiet Enjoyment, Or Non-infringement; And (B) Any Warranty Arising Out Of Course Of Dealing, Usage, Or Trade. The Spokin Entities Do Not Warrant That The Service Or Any Portion Of The Service, Or Any Materials Or Content Offered Through The Service, Will Be Uninterrupted, Secure, Or Free Of Errors, Viruses, Or Other Harmful Components, And Do Not Warrant That Any Of Those Issues Will Be Corrected.

No Advice Or Information, Whether Oral Or Written, Obtained By You From The Service Or Any Materials Or Content Available Through The Service Will Create Any Warranty Regarding Any Of The Spokin Entities Or The Service That Is Not Expressly Stated In These Terms. You Assume All Risk For Any Damage That May Result From Your Use Of Or Access To The Service, Your Dealing With Any Other Service User, And Any Materials Or Content Available Through The Service. You Understand And Agree That You Use The Service, And Use, Access, Download, Or Otherwise Obtain Materials Or Content Through The Service And Any Associated Sites Or Services, At Your Own Discretion And Risk, And That You Are Solely Responsible For Any Damage To Your Property (Including Your Computer System Or Mobile Device Used In Connection With The Service), Or The Loss Of Data That Results From The Use Of The Service Or The Download Or Use Of That Material Or Content.

Some Jurisdictions May Prohibit A Disclaimer Of Warranties And You May Have Other Rights That Vary From Jurisdiction To Jurisdiction.

  1. Limitation of Liability

In No Event Will The Spokin 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 Service Or Any Materials Or Content On The Service, Whether Based On Warranty, Contract, Tort (Including Negligence), Statute, Or Any Other Legal Theory, And Whether Or Not Any Spokin Entity Has Been Informed Of The Possibility Of Damage.

Except As Provided In Section 20.4(Iii), The Aggregate Liability Of The Spokin Entities To You For All Claims Arising Out Of Or Relating To The Use Of Or Any Inability To Use Any Portion Of The 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 Spokin For Access To And Use Of The Service In The 12 Months Prior To The Event(S) Or Circumstances Giving Rise To Claim; Or (B) $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 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 17 Will Apply Even If Any Limited Remedy Fails Of Its Essential Purpose.

  1. Governing Law. These Terms are governed by the laws of the State of Illinois without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Spokin agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Cook County, Illinois for the purpose of litigating any dispute. We operate the Service from our offices in Illinois, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
  2. General. These Terms, together with the Spokin Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Spokin regarding your use of the Service. Except as expressly permitted above, these Terms 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 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. 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. Upon termination of these Terms, Sections 2.2 through 2.11, and 5 through 24, along with the Spokin Privacy Policy and any other accompanying agreements, will survive.
  3. Dispute Resolution and Arbitration
    1. Generally. In the interest of resolving disputes between you and Spokin in the most expedient and cost effective manner, you and Spokin 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 SPOKIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    2. Exceptions. Despite the provisions of Section 20.1, 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; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    3. Arbitrator. Any arbitration between you and Spokin will be settled under the Federal Arbitration Act, and 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 Spokin.
    4. Notice; 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 such other party has not provided a current physical address, then by electronic mail (“Notice”). Spokin’s address for Notice is: Spokin, Inc., P.O. Box 220116, Chicago, IL 60622. The Notice 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 is received, you or Spokin may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Spokin must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Spokin will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Spokin in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
    5. Fees. If you commence arbitration in accordance with these Terms, Spokin will reimburse you for your payment of the filing fee, unless your claim is for more than $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 San Francisco County, California, but if the claim is for $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 Spokin 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.
    6. No Class Actions. YOU AND SPOKIN 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 Spokin 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.
    7. Modifications to this Arbitration Provision. If Spokin makes any future change to this arbitration provision, other than a change to Spokin’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Spokin’s address for Notice, in which case your account with Spokin will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
    8. Enforceability. If Section 20.6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
  4. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in the Spokin Privacy Policy. Please read the Spokin 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.
  5. Export Control. You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service is accessed or obtained. In particular, but without limitation, the App may not be exported or re-exported: (a) into any U.S. embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any of those countries or on any of those lists. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of missiles, and nuclear, chemical, or biological weapons.
  6. Contact Information. The Service is offered by Spokin, located at P.O. Box 220116, Chicago, IL 60622. You may contact us by sending correspondence to that address or by emailing us at [email protected].
  7. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 24 apply. You acknowledge that these Terms are between you and Spokin only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the 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; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 10 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 Section 10 of these Terms against you. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
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