Terms of Service
Last Updated Date: September 4, 2020
Welcome, and thank you for your interest in Diem! We appreciate you reviewing and following these guidelines so that we can continue to be your digital ecosystem for womxn’s health. These terms of service (“Terms”) are between you and Diem Enterprises Inc. (“Diem,” “we,” “our,” or “us”), and establish the terms that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.
THE SERVICE IS NOT INTENDED FOR EMERGENCY MEDICAL SITUATIONS. IF YOU HAVE A SERIOUS MEDICAL CONDITION OR SITUATION AND NEED MEDICAL ASSISTANCE, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS.
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING email@example.com WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.
- Use of the Service.
- Service. The “Service” includes: (1) Diem’s website (located at https://www.askdiem.com) (the “Site”) and iOS and Android apps (the “Apps”) as may be updated, relocated, or otherwise modified from time to time; (2) the platform that enables users to discover health communities, education, and services through the Site and Apps; and (3) all content on the Site and Apps and all intellectual property rights arising out of or related to the foregoing. Any person who joins the Diem community by completing the registration process to access or use the Service is a “Member.”
- License. Subject to your compliance with these Terms, Diem hereby grants you a non-exclusive, revocable, non-transferable license to access the Site and to download a copy of the Apps; in each case, solely for your personal use.
- Diem’s Role. The Service may contain general information regarding personal health. Diem’s role is limited to making such information available to you. Diem does not engage in the practice of medicine or provide any other healthcare services, and you should always discuss any information with your healthcare provider before changing your practices.
- Accounts; Registration; Restrictions.
- Diem Members. To access most features of the Service, you must register for an account. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.
- Accuracy of Information. If you provide any information to us that is not current, complete, or accurate, Diem may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.
- Eligibility. You represent and warrant that: (1) you are at least 18 years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. Diem provides the Service from the United States, and the Service is designed for Members who are residents of the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.
- Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify Diem immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at firstname.lastname@example.org. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You may not share your login credentials with any third party. Diem will not be liable for any loss that you incur as a result of someone else using your login credentials or account.
- Your Responsibilities. Diem is designed to be a home for trusted knowledge and supportive womxn’s health communities. This is only possible if all Members use the Service responsibly. Accordingly, you may use the Service solely for lawful purposes, and you may not (and you may not allow or assist any third party to):
- use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;
- rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;
- circumvent or disable any security features of the Service, or probe, scan, or test the vulnerability of the System;
- gain unauthorized access to the Service, to other Members’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
- use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;
- reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);
- use the Service to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, or (ii) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
- knowingly spread misinformation to the Diem community;
- restrict, discourage, or inhibit any other Member from using the Service;
- disclose personal information about a third party or another Member on the Service or obtained from the Service without the consent of such third party or Member, or solicit, harvest, or collect information about other Diem Members without their consent;
- violate any applicable international, federal, state, or local laws or regulations;
- use the Service in violation of Diem’s or any third party's intellectual property or other rights;
- express or imply that any statements you make are endorsed by Diem, without our prior written consent in each instance; or
- use or access the Service to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce these Terms.
- No Medical Advice.
- DIEM DOES NOT PROVIDE ANY MEDICAL OR OTHER PROFESSIONAL HEALTHCARE ADVICE. THE SERVICE IS NOT INTENDED TO BE USED TO ASSESS HEALTH CONDITIONS OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, OR RELIED UPON FOR DIAGNOSIS OR TREATMENT. Any health-related information you receive through the Service is not medical advice. Use of the Service does not, and is not intended to, create or constitute, a physician-patient relationship with Diem, its employees, independent contractors, agents, or anyone acting on behalf of Diem. Use of the Service may offer certain potential benefits, but also presents certain potential risks (e.g., any general health information received through the Service will not take into account all the specifics of each Member’s medical history).
- BY AGREEING TO THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU HAVE HAD THE OPPORTUNITY TO CONSIDER THE RISKS AND BENEFITS OF THE USE OF THE SERVICE, INCLUDING ANY HEALTH-RELATED INFORMATION.
- Pricing; Membership.
- Pricing. Membership to Diem for individuals is free, but certain features within the Service may require you to pay fees, including one-time fees or fees on a subscription basis, and may provide you the option to activate recurring automatic payments for recurring fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Service, you authorize Diem or its third-party service providers to periodically charge, until cancellation, all accrued sums. Recurring subscriptions automatically renew unless they are cancelled via a method described in the Service at least 24 hours before the end of the current subscription period.
- Payment Processing. Payment processing services for Diem may be provided by our third-party payment processors, which may include Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Diem enabling payment processing services through Stripe, you agree to provide Diem with current, accurate, and complete information about you and your payment methods (billing address, credit card number, expiration date, etc.) and you authorize Diem to share it and transaction information related to your use of the payment processing services provided by Diem.
- Content Submitted to the Service.
- Member Content. Certain features of the Service may permit Members to upload and publish content to the Service, including text and images (“Member Content”). You own any Member Content you provide. Except as expressly described in these Terms, no ownership rights in the Member Content are transferred to Diem by these Terms.
- License to Diem. By sending us Member Content or by posting or publishing it to the Service, you grant Diem and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publish, publicly display, and use such Member Content in any media now known or hereafter developed, to: (1) provide the Service to you and other Members; (2) enhance and develop the Service; and (3) market and advertise the Service; in each case, without compensation to you.
- Responsibility for Member Content. You are solely responsible for your Member Content and the consequences of posting it on the Service. None of the Member Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Member Content. Diem may (but is not obligated to) remove or alter any Member Content at any time for any reason. We neither endorse nor are responsible for any Member Content. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. The opinions expressed on the Service by Members reflect solely the opinions of the Members and do not reflect the opinions of Diem. If you believe Member Content violates these Terms or any policies we provide, please contact Diem immediately at email@example.com so that we can consider its editing or removal. You understand that when using the Service you will be exposed to Member Content from a variety of sources and acknowledge that Member Content may be inaccurate, offensive, indecent, or objectionable. You hereby waive any legal or equitable right or remedy you may have against Diem with respect to Member Content.
- Messages. The Service may allow Diem Members to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Diem may terminate such privileges of any Member at any time and for any reason. If a Member sends you an objectionable Message, please contact Diem immediately at firstname.lastname@example.org. You are solely responsible for the content of any Message you send. You agree that Diem may monitor Messages for compliance with these Terms, and Messages should not be considered confidential or proprietary. You agree not to exchange personal or confidential health information through Messages.
- Optional Third-Party Services. Diem and third parties may make available integrations between the Service and third-party products or services, including plugins and related services (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider’s continued operation, Diem does not warrant or provide support for Third-Party Services. Diem is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. Diem does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation.
- Diem IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “Diem IP”), is owned by Diem and its licensors. No ownership rights in the Diem IP are transferred to you by these Terms. You do not have any rights in or to the Diem IP except for the limited express rights granted in these Terms.
- Trademarks. You acknowledge that Diem has acquired, and is the owner of, common law or registered trademark rights in the name and word mark "Diem" and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or Diem’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to Diem’s benefit.
- Feedback. If you give Diem feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to Diem all right, title, and interest in and to the Feedback, and Diem is free to use the Feedback without payment, attribution, or restriction.
- Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Diem infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
- identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Diem to locate the material on the Service;
- the name, address, telephone number, and email address (if available) of the complaining party;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Diem a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be penalties for false claims under the DMCA.
- Confidentiality. In the course of providing the Service, Diem may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by Diem to you with respect to the business, operations, and marketing of Diem’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is Diem’s confidential information and you will not use or disclose such confidential information to any third party without Diem’s prior written consent.
- Usage Data. Diem may collect and analyze data relating to your use of the Service that is aggregated in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Diem may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.
- Consent to Electronic Communications.
- Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you, if we have your email address. You may have a legal right to receive this notice in writing.
- Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us.
- Term and Termination.
- Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue as long as you continue until terminated.
- Termination. If you breach (or if Diem suspects you have breached) these Terms, Diem may, in its sole discretion, terminate these Terms and your Member account and/or limit, suspend, or terminate your access to the Apps or Service, with or without notice. You may terminate these Terms by contacting us at firstname.lastname@example.org.
- Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. The following Sections of these Terms will survive termination of these Terms: 1.A, 1.C, 2–11, 12.C, and 13–23. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.
- Deactivation. Diem may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). Diem will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.
- Representations and Warranties; Disclaimer.
- Member Content. You represent and warrant that: (1) you are the creator and owner of any Member Content you provide or otherwise have sufficient rights and authority to grant the rights granted to Diem in these Terms; (2) Diem’s use of your Member Content in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any intellectual property right, proprietary right, or privacy right; (3) your Member Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Member Content does not contain any confidential information of any third party.
- DISCLAIMER. DIEM MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, THIRD-PARTY SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DIEM DOES NOT WARRANT THAT THE SERVICE OR THIRD-PARTY SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 13.B will apply solely to the extent permitted under applicable law.
- Defense. At Diem’s option and request, you will defend Diem, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “Diem Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other Member or any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If Diem requests you to defend an Diem Party from any Claim, Diem will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of an Diem Party without Diem’s prior written consent. Diem may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
- Indemnification. You will indemnify the Diem Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against an Diem Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by an Diem Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.
- Limitation of Liability.
- EXCLUSION OF DAMAGES. NEITHER DIEM NOR ANY DIEM PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF DIEM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. DIEM WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF YOUR RELIANCE ON ANY HEALTH-RELATED INFORMATION IN THE SERVICE OR FOR ANY THIRD-PARTY SERVICES.
- DAMAGES CAP. DIEM’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO DIEM DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.
- BASIS OF THE BARGAIN. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Generally. In the interest of resolving disputes between you and Diem in the most expedient and cost-effective manner, you and Diem agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury 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 in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DIEM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 16 WILL APPLY TO YOU AND DIEM UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 16.I (OPT OUT).
Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
- Exceptions. Despite the provisions of Section 16.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Diem will be governed by 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 Diem. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). Diem’s email address for Notice is email@example.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Diem, include your name and address (“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 45 days after the Notice is received, you or Diem may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Diem 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, Diem will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Diem in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
- Fees; Location. If you commence arbitration in accordance with these Terms, Diem will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, 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 New York, New York but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) 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 Diem 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.
- No Class Actions. YOU AND DIEM 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 (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 16 (ARBITRATION)). Unless both you and Diem 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.
- Modifications to this Arbitration Provision. If Diem makes any future change to this arbitration provision, other than a change to Diem’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Diem’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Diem. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
- Enforceability. If Section 16.F (No Class Actions) is found to be unenforceable or if the entirety of this Section 16 (Arbitration) is found to be unenforceable, then the entirety of this Section 16 will be null and void and the exclusive jurisdiction and venue described in Section 20.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.
- Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 16 (Arbitration), you may opt out by notifying Diem in writing of your decision by sending, within 30 days after the effective date of these Terms, an email to firstname.lastname@example.org, stating clearly your full name, address, and intent to opt out of this Section 16. Should you choose not to opt out within the 30-day period, you and Diem will be bound by the terms of this Section 16. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 16, and you understand that you will not be subject to retaliation if you exercise your right to opt out.
- Protected Activity Not Prohibited. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any federal, state, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Diem. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Diem confidential information to any parties other than the applicable government agencies.
- Compliance with Applicable Law. Each party will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under these Terms.
- Subcontractors. Diem may use subcontractors or other third parties to perform its obligations under these Terms, but Diem will remain responsible for all such obligations.
- Governing Law. These Terms are governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 16 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
- Injunctive Relief. If you breach Sections 2 (Accounts; Registration; Restrictions), 7 (Ownership), or 9 (Confidentiality), Diem may suffer irreparable harm, and monetary damages may be inadequate to compensate Diem. Accordingly, Diem may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
- Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.
- Assignment. You may not assign these Terms or delegate your performance without Diem’s prior written consent, and any attempt to do so is void. Diem may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.
- Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
- Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.
- Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
- Relationship. Neither Diem’s provision of the Apps to you, nor your access to and use of the Service, creates any employment or contractor relationship, between you and Diem; and no joint venture, partnership, or agency relationship exists between you and Diem. The parties are independent contractors of each other.
- No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms, except as described in Section 22 (Notice Regarding Apple).
- Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 20.L. All notices to Diem will be sent to:
Diem Enterprises Inc.
155 Ridge Street
New York, NY 10002
- Force Majeure. Diem will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond Diem’s reasonable control (a “Force Majeure Event”), so long as Diem uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Diem to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.
- Interpretation. If Diem provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
- NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Members located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
- Notice Regarding Apple. This Section 22 only applies to the extent you are using the Apps on an iOS device. You acknowledge that these Terms are between you and Diem only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and 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 claims by you or any third party relating to the Service or your possession and/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; or (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a 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 these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Contact Us. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at email@example.com.