1.1 Website and Services. This website ("Website") is owned and operated by or for California Physicians' Service d/b/a Blue Shield of California and its affiliates and subsidiaries (collectively, "BSC" or "We"). The Website and associated mobile applications ("Apps") and all content, materials, resources, services, and/or products available on or through the Website and Apps (collectively and together with the Website and Apps, the "Services") are intended for individuals interested in obtaining consumer health information, participating in wellness programs, managing their health plan-related expenses, and communicating with health care providers, as well as the employers of such individuals offering and managing these programs and benefits.
1.2 Terms. The Services and the links accessible therein
are offered to you or the entity you represent ("You" or "you") subject to your
acceptance without modification of all of the terms and conditions contained in
these Terms of Service and all other operating rules, policies (including,
without limitation, BSC's Online and Mobile Privacy Policy), Guidelines (as
defined below), any future modifications and terms that may be published from
time to time or otherwise made available to you on or through the Services (collectively,
the "Terms"). When accepted by you (either affirmatively or by registering for,
accessing, browsing, and/or otherwise using the Services), the Terms form a
legally binding contract between you and BSC.
If you are using the
Services on behalf of an entity, such as your employer or the company you work
for, you represent that you have the legal authority to bind that entity to the
Terms. Please note that use of some Services, including but not limited to features
and functionality provided by BSC's third-party partners, contractors, vendors
and suppliers (collectively, "Suppliers"), may be subject to additional terms
and conditions.
1.3 Agreement to Terms. PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, THEN PLEASE DO NOT ACCESS, BROWSE OR OTHERWISE USE THE SERVICES.
2.1 Eligibility. THE SERVICES ARE AVAILABLE ONLY TO USERS WHO ARE AT LEAST 18 YEARS OLD AND LIVE IN THE UNITED STATES OF AMERICA. THE SERVICES ARE NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SERVICES BY BSC. BY USING THE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE, LIVE IN THE UNITED STATES OF AMERICA, AND HAVE NOT BEEN SUSPENDED OR REMOVED FROM THE SERVICES BY BSC.
2.2 Minors. You may access and use the Services on behalf of a minor under the age of 18, provided that you are a parent or legal guardian of such minor and all Private Communications and Public Submissions (as defined below) submitted or posted to the Services are entered by you, or by such minor under your supervision. If you allow a minor to access or use the Services under your supervision in this manner, you remain responsible for ensuring the accuracy of any such Private Communications and Public Submissions and otherwise complying with all of the terms and conditions contained herein.
2.3 Use of Services. Subject to your compliance with these Terms, BSC grants you consent to use the Services as set forth in the Terms and consistent with the intended features of the Services.
2.4 Users and Monitoring. Users of the Services are referred to herein individually as "User" and collectively as "Users". It is a condition of your use of the Services that you do not restrict or inhibit any other User from using the Services.Any activity involving the Services is subject to monitoring by BSC. By using the Services, you are consenting to such monitoring and agree that BSC may use the results of such monitoring to provide, manage and improve the Services.
BSC takes the privacy of its Users very seriously. BSC's Online and Mobile Privacy Policy is hereby incorporated into these Terms by reference. Please read the Online and Mobile Privacy Policy carefully for information relating to BSC's collection, use, and disclosure of your personal information.
When using the Services, you will be subject to any additional guidelines or rules applicable to specific features, applications, products, or services that may be posted from time to time or otherwise made available to you through the Services (the "Guidelines"). All such Guidelines are hereby incorporated by reference as part of the Terms.
BSC reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes from time to time or otherwise making them available to you through the Services. Please check the Terms periodically for changes. Your continued use of the Services after changes to the Terms have been published on or through the Services constitutes your binding acceptance of the changes. For any material modifications to the Terms or in the event that such modifications materially alter your rights or obligations hereunder, the amended Terms will automatically be effective upon the earlier of (i) your continued use of the Services with actual knowledge of the modifications, or (ii) 30 days from publication of the modified Terms on or through the Services. Notwithstanding the foregoing, the resolution of any dispute that arises between you and BSC will be governed by the Terms in effect at the time the dispute arose.
Information provided through the Services may be changed or updated without notice. We have no obligation to update information presented through the Services, so information contained therein may be out of date at any given time. Furthermore, we and our Suppliers may change, modify, update, or improve the information, services, products, materials, and any other resources contained on or accessible through the Services, or discontinue them altogether, at any time without notice.
7.1 Registration for Account. In order to access and use certain features of the Services, you will have to create an account and become a registered user of the Services. You agree that any information you provide to BSC on registration for an account and at all other times will be true, accurate, current, and complete. Since the provision of certain features of the Services may depend on the continued accuracy of your account information, you also agree that you will ensure that this information is kept accurate and up to date at all times your account remains open.
7.2 Account and Password. When you register, you will be asked to create a password. As you will be responsible for all activities that occur under your account, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and/or the handheld or mobile device you use to access the Services, and you agree to accept responsibility for all activities that occur under your account. BSC strongly encourages you to change your password frequently in order to maintain its security. You agree to immediately notify BSC of any unauthorized uses of your account or if you believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password). You may be liable for any losses incurred by BSC or others due to any unauthorized use of your account.
7.3 Use of Email Address. Should you provide your email address in connection with your registration, you agree that BSC and its Suppliers may use your email address to contact you about the content and for other administrative purposes.
The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, "look and feel," organization, compilation of the content, code, data, and all other elements of the Services (collectively, the "BSC Materials") are protected by United States copyright, trade dress, patent, and trademark laws, and international conventions, laws, and treaties. Except for any Private Communications and Public Submissions (as defined below) or other content owned and/or posted by you, all BSC Materials are the copyrighted property of BSC, its affiliates and/or third party licensors. Furthermore, all trademarks (including but not limited to Blue Shield of California as a Registered® mark of the BlueCross BlueShield Association, an association of independent Blue Cross and Blue Shield plans), service marks (including but not limited to the service marks of Blue Shield of California and Mylifepath ), and trade names contained in the BSC Materials are proprietary to BSC and/or our third-party licensors. Your use of the Services does not grant you ownership of any content, code, data or any part of the BSC Materials you may access on or through the Services. Any commercial or promotional use, distribution, publishing or exploitation of the BSC Materials is strictly prohibited unless you have received the express prior written consent from BSC or the otherwise applicable rights holder. BSC reserves all rights to the BSC Materials not expressly granted in the Terms.
Pursuant to the Digital Millennium Copyright Act of 1998 ("DMCA"), copyright
owners who allege infringement of their copyrights on the Website and/or Apps may
file a notice of infringement with BSC by contacting the designated agent using
the information provided below:
601 12th Street, Oakland, CA 94607
email: copyrightnote@blueshieldca.com
Filing a
notice of infringement with BSC requires compliance with the requirements
specified in Title II of the DMCA. The text of this statute can be found at the
U.S. Copyright Office website, http://www.copyright.gov (visited October 2013)
All content, services and/or products available through the Services are intended for personal, non-commercial use. With the exception of Private Communications and Public Submissions (as such terms are defined below), all such content, including without limitation documents, forms, pictures, images, audiovisual works, and informational materials (collectively, the "Content"), is owned or controlled by BSC or its licensors, and is protected by copyright and other intellectual property laws, conventions, and treaties. You agree not to change or delete any copyright or proprietary notice from Content downloaded from the Services and/or any site accessible through the Services. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted Content from or through the Services. Without the prior written consent of BSC (or the applicable Supplier of BSC), you may not publish, copy, reproduce, distribute, transfer, upload, post, transmit, or otherwise use any Content contained on or accessible through the Services. Requests for BSC's consent to publish, copy, reproduce, distribute, transfer, or otherwise use Content should be emailed to BSC's Web Master at copyrightnote@engagementpoint.com.
You agree that you are responsible for your own conduct while using the Services and for any consequences thereof. You agree to use the Services only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, you agree that when using the Services, you will not:
BSC may, now or in the future, charge service fees for the use of the Services or certain features of the Services. You agree to pay to BSC all fees for services purchased through the Services under your account at the then-current rates for such services (including any applicable taxes), and to abide by BSC's payment terms in effect at the time of such purchase. BSC may change the fees for the use of the Services or certain features of the Services, or add new fees or charges, at any time. For any change in fees for services purchased under your account, BSC will send you a notice of such change in advance of the time such change takes effect (via a message on or through the Website or email) or will make it clear through a notice on the Website.
The Services may include links to other websites or services ("Linked Sites") solely as a convenience to Users. BSC does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, BSC makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. BSC is not responsible for the content, security or privacy practices of Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK. We encourage you to review the terms of use and privacy statements of other Internet sites you choose to visit.he prior written consent of BSC is required to create a link to the Website or any part of the Website.
The Services may include resources that will permit you to communicate privately with other users of the Services, which may include your health care providers or your patients and/or clients, and/or other persons ("Private Communications"). The contents of Private Communications are not part of the Services, but your use of the Services to send and receive Private Communications are subject to these Terms. You and the persons with which you exchange Private Communications are solely responsible for the content of those Private Communications and any action that either you or they take based upon or as a result of those Private Communications. Neither BSC nor its Suppliers is responsible for any use or disclosure of information by a person with whom your information is shared through Private Communications. By sharing information with their health care providers through Private Communications, individuals who use Private Communications are giving those providers the right to use and disclose that information without any control by BSC, and subject to the terms of their relationship with you. Each user of Private Communications is solely responsible for complying with all laws and regulations that apply to them in connection with their relationships with the individuals who share information with them and the privacy, security, and use of that information.Neither BSC nor its Suppliers will review or approve the content of your Private Communications or have access to your Private Communications except as necessary to provide Services.BSC shall comply with any applicable laws with respect to the privacy, security and use of that information.
15.1 Interactions with Health Care Providers The Services may allow you to correspond or otherwise interact with your healthcare providers through Private Communications. You understand and agree that the Services merely provide a platform for providing information to your health care providers, and that your correspondence or interaction with your health care providers is solely between you and your healthcare providers. You irrevocably and forever release BSC (and BSC's affiliates, officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any disputes that arise between you and your health care providers as a result of your interactions between you and your health care providers utilizing the Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
15.2 Health Care Information and Providers. Except for information you may receive from a health care provider through Private Communications, the Services, and all content, services and features available on or through the Services, are intended for informational purposes only. They are not intended to constitute or be used as a substitute for professional medical or mental health advice, diagnosis, or treatment. BSC does not recommend or endorse any specific tests, healthcare providers, diagnosis, treatment plans, procedures or other related information provided through the Services. BSC DOES NOT RECOMMEND AND EXPRESSLY DISCLAIMS ANY LIABILITY RELATING TO OR ARISING FROM THE SELF-MANAGEMENT OF HEALTH PROBLEMS OR FROM HEALTH CARE SERVICES OR ADVICE YOU MAY RECEIVE FROM OTHERS THROUGH PRIVATE COMMUNICATIONS. Always seek the advice of a qualified health care provider if you have any questions regarding a medical or mental health issue. If you think you have a medical or mental health emergency, call 911 or your doctor immediately. NEVER SUBSTITUTE THE SERVICES OR ANY INFORMATION AVAILABLE THROUGH THE SERVICES FOR A TREATMENT AND MONITORING PLAN PRESCRIBED OR DEVISED BY A QUALIFIED HEALTH CARE PROVIDER. Reliance on any information available on or through the Services is solely at your own risk. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES, OR ANY INTERACTION BETWEEN YOU AND OTHERS ON OR THROUGH THE SERVICES, DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND BSC. You may choose to interact with your health care providers through Private Communications. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR HEALTH CARE PROVIDERS ARE THE ONLY PARTIES TO AND ARE SOLELY RESPONSIBLE FOR ANY INTERACTION BETWEEN YOU THROUGH PRIVATE COMMUNICATIONS.
16.1 Generally BSC and its affiliates may offer health plan members, or Blue Shield of California Life & Health Insurance Company insureds, or employees of companies to which BSC is providing administrative services (in each case, a "Member") certain interactive features through the Services from time to time which will involve making information public. These interactive features are not the same as Private Communications. Interactive features may include the opportunity to submit, post and share certain content with other Members, which may include without limitation text, pictures, images and comments submitted by you on or through the Services (collectively, "Public Submissions"). Public Submissions are displayed on or through the Services for informational purposes only and their content is not otherwise controlled by BSC. BSC does not guarantee any accuracy or confidentiality with respect to any information contained in any Public Submission, and strongly recommends that you think carefully about what you post to or through the Services. You understand that all information contained in Public Submissions is the sole responsibility of the person from whom such Public Submission originated. This means that you, and not BSC, are entirely responsible for all Public Submissions that you upload, post, or otherwise make available through the Services, as well as for any actions taken by BSC or others as a result of such Public Submissions.
16.2 Right to Remove or Edit Public Submissions BSC makes no representations that it will publish or make any Public Submission available on or through the Services, and reserves the right (but has no obligation), in its sole discretion, to refuse to allow any Public Submission on the Website or the Services, or to edit, condense or remove any Public Submission at any time with or without notice. Because you decide what to include in your Public Submissions, none of the content in a Public Submission shall be subject to any obligation of confidentiality on the part of BSC, its agents, subsidiaries, affiliates, or Suppliers or their respective directors, officers and employees. Without limiting the generality of the foregoing, BSC may remove any Public Submission it reasonably believes necessary to comply with any applicable law or regulation, or to protect the rights or safety of the Users.
16.3 License Grant by You to BSC You retain all your ownership rights in original aspects of your Public Submissions. By submitting your Public Submissions to BSC through the Services, you hereby grant BSC a worldwide, non-exclusive, royalty-free, irrevocable, and sublicensable license to use, copy, display. distribute, modify, and create derivative works of your Public Submissions without compensation to you, for the sole purpose of providing you with the intended features and services available on or through the Services. You further voluntarily waive any "moral rights" you may have in such content. The foregoing license granted by you may be terminated if you submit a request to have your data removed from the Website and Services to BSC by email techsupport@engagementpoint.com , provided, however, that BSC's and the BSC sublicensees' rights to such Public Submission arising out of distributions occurring on or prior to deletion of such Public Submission from the Website survive any termination or expiration of the license granted in this Section.
16.4C Limited License Grant to Certain Other Users The Services may allow you to share your Public Submissions with certain other Users of your choosing who have also registered for the Services. By submitting or distributing your Public Submissions through the Services, you hereby grant to such other Users a non-exclusive license to access or otherwise use your Public Submissions. The foregoing license granted by you may be terminated if you submit a request to have your data removed from the Website and Services to BSC by email to techsupport@engagmentpoint.com provided, however, that such other Users' rights to such Public Submission arising out of distributions occurring on or prior to deletion of such Public Submission from the Website survive any termination or expiration of the license granted in this Section.
16.5 Public Submissions Representations and Warranties By using any interactive features described in Section, you represent and warrant that: (i) you are a current Member; (ii) you are solely responsible for your own Public Submissions and the consequences of posting or publishing them; and (iii) you are at least 18 years of age. In connection with Public Submissions, you represent and warrant that:
16.6 Limited License Grant to Certain Other Users If you provide or access any Public Submissions through the Services or otherwise, you represent and warrant that you have all consents and authorizations as required by law to provide or access any Public Submissions through the Services, including without limitation any such consents and authorizations required under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and California's Confidentiality of Medical Information Act ("CMIA").
16.7 Feedback If you provide BSC with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Services ("Feedback"), BSC shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Services. You hereby grant BSC a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
17.1 By BSC. You agree that BSC, in its sole discretion and for any or no reason, may terminate these Terms, any account you may have with BSC or your use of the Services and remove and discard all or any part of any Public Submissions uploaded by you, at any time. BSC, in its sole discretion and at any time, may also discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of these Terms, your access to the Services or any account you may have may be effected without prior notice, and you agree that BSC will not be liable to you or any third party for any such termination except as described in these Terms. Provided that you have complied with all the terms and conditions of these Terms, upon BSC's termination of these Terms or your account, BSC will refund any prepaid fees for services, if any, that have not yet been provided. BSC does not permit any fraudulent or illegal activities on or through the Services or otherwise and reserves the right to terminate access to the Services and remove all content submitted by any persons who are found to be engaging in illegal activities. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies BSC may have at law or in equity.
17.2 By you. You may terminate your account and your right to use the Services at any time and for any reason or no reason, by contacting BSC customer service at techsupport@engagmentpoint.com and discontinuing your use of the Services. If you terminate your account, you will remain obligated to pay all outstanding charges, if any, relating to your use of the Services incurred before termination.
17.3 Loss of Your Information on Termination. Upon any termination or expiration of these Terms or any account you may have, or your access to the Services, whether by you or BSC, ANY INFORMATION (INCLUDING PRIVATE COMMUNICATIONS AND PUBLIC SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE WEBSITE OR THROUGH THE SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU and except as may be required by applicable laws. BSC will have no obligation to maintain any such information in its databases or to forward any such information to you or any third party.
17.4 Survival. Upon termination or expiration of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 8 through 25.
Except as explicitly stated otherwise, legal notices must be served, with respect to BSC and the Services, to 601 12th Street, Oakland CA, 94607, Attention: General Counsel, and, with respect to you, to the email address you provide to BSC during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, BSC may give you legal notice by mail to the address provided during the registration process, if any, or if no mailing address was provided during the registration process, by posting on the Website. In such case, notice will be deemed given three days after the date of mailing or posting, as applicable. You agree that all notices and other communications that BSC provides to you electronically satisfy any legal requirement that such notices or communications be in writing.
19.1 UNLESS OTHERWISE EXPRESSLY STATED BY BSC, THE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. UNLESS OTHERWISE EXPRESSLY STATED BY BSC, BSC AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BSC AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
19.2 UNLESS OTHERWISE EXPRESSLY STATED BY BSC, BSC AND ITS AFFILIATES DO NOT WARRANT THAT THE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19.3 Your use of this site is also subject to all additional disclaimers and caveats that may appear throughout the site.
19.4 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
If you access or use any other person's Private Communications or Public Submissions through the Services, you represent and warrant that your collection, use and storage of data or information contained in such Private Communication or Public Submissions or otherwise resulting from your use of the Services shall comply with all applicable laws, and that you will not use the Services or data or information contained in such Private Communications and Public Submissions in a manner that reasonably could be expected to damage or cause injury to the Services or reflect unfavorably on the reputation of BSC.
You agree to indemnify, defend, and hold harmless BSC and its affiliates from any claims, losses, damages, liabilities, and expenses, including attorney's fees, arising out of your use or misuse of the Services; Private Communications sent by you or Public Submissions made by you; representations made to BSC, its Users, and/or third parties; violation of these Terms; violation of the rights of any other person or entity; or any breach of the foregoing representations, warranties, and covenants. BSC reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify and defend BSC, and you agree to cooperate with such defense of these claims.
22.1 Limitation of Liability UNDER NO CIRCUMSTANCES (WHETHER DUE TO A CLAIM IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), SHALL BSC OR ITS AFFILIATES, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SERVICES OR THE WEBSITE, INCLUDING BUT NOT LIMITED TO THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SERVICES OR THE WEBSITE OR ANY LINKED SITES, BSC MATERIALS, OR ANY INTERACTIONS WITH BSC OR ANY THIRD PARTY THROUGH THE SERVICES, EVEN IF BSC OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.2 Limitation of Damages. IN NO EVENT WILL BSC'S OR ITS AFFILIATES', EMPLOYEES', AGENTS', OR SUPPLIERS' LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE SERVICES OR THE WEBSITE OR YOUR INTERACTION WITH BSC OR ANY OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ANY ACCESS TO OR USE OF THE SERVICES OR ANY PART THEREOF, OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
22.3 Linked Sites. THESE LIMITATIONS OF LIABILITY AND DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES PROVIDED OR MADE ACCESSIBLE ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN BSC.
22.4 Subject to Applicable Law. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, BSC'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
22.5 Basis of the Bargain. YOUACKNOWLEDGE AND AGREE THAT BSC HAS OFFERED THE SERVICES AND THE USE OF THE WEBSITE, SET ITS PRICES, AND ENTERED INTO THE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BSC, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BSC. BSC WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
24.1 Generally. In the interest of resolving any disputes that arise between you and BSC in the most expedient and cost effective manner, you and BSC agree that any and all disputes arising in connection with the Terms or your use of the Services or any part thereof 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. This agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of the Terms or the Services, 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 your account for the Services. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND BSC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
24.2 Notwithstanding the contents of Section. above, you and BSC agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party's right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
24.3 Arbitrator. Any arbitration between you and BSC 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.
24.4 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"). BSC's address for Notice is: 601 12th Street, Oakland CA, 94607, Attention: General Counsel. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). You and BSC agree to use good faith efforts to resolve the claim directly, but if no such resolution is reached within 30 days after the Notice is received, you or BSC may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BSC shall not be disclosed to the arbitrator.
24.5 Location and Fees. Any arbitration hearings will take place at a location to be agreed upon in the County of Alameda, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. 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 you will be required to pay all filing fees and fees payable to the AAA. In such case, you agree to reimburse BSC for all monies previously disbursed by it that are otherwise your obligation to pay. 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.
24.6 No Class Actions. YOU AND BSC 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 BSC 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.
24.7 Modifications. In the event that BSC makes any future change to this arbitration provision (other than a change to BSC's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to BSC's address for Notice, in which case your account with BSC shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
24.8 Enforceability. If either Section 24.1 or the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 25.1 below, shall govern any action arising out of or related to the Terms or your use of the Website and/or the Services or any part thereof.
25.1 Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against BSC and/or its affiliates shall be resolved by a court located in the County of Alameda, California, except as otherwise agreed to by the parties or as described in Section above. You agree to submit to the personal jurisdiction of the courts located within the County of Alameda, California for the purpose of litigating all such claims or disputes.
25.2 Independent Contractors. You and BSC are, and will be deemed to be, independent contractors with respect to the subject matter of these Terms, and nothing herein shall be deemed or construed in any manner whatsoever as creating any employment, partnership, agency, joint venture, fiduciary or other similar relationship between the parties hereto.
25.3 No Third Party Beneficiary. You and BSC acknowledge and agree that no person or entity is intended as a third party beneficiary of the Terms.
25.4nbsp; Severability. If any provision of the Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the Terms and will not affect the validity and enforceability of any remaining provisions.
25.5 Assignment. The Terms, your Account, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by BSC without restriction. Any assignment attempted to be made in violation of the Terms will be void.
25.6 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
25.7 Entire Agreement. The Terms constitute the entire agreement between you and BSC relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to the Terms made by BSC as set forth in Section 7 above.
25.8 Claims. YOU AND BSC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.