Terms of Use
Terms of Use Agreement
Welcome to Lingk, the website and online service of Lingk Inc. (“Lingk,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, web site, and software provided on or in connection with the service (collectively the “Service”).
By accessing or using the Service, checking a box signifying your consent, or by otherwise affirmatively stating your desire to use the Services, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in our Privacy Policy, located at http://www.lingk.io/privacy-policy, whether or not you are a registered user of our Service. Lingk reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below.
This Agreement applies to all visitors, users, and others who access the Service, including, without limitation, commercial enterprises, governments, schools, universities and other institutions, such institutions’ staff, faculty, administrators, students or other users not affiliated with any such institutions but who other use or access the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
Lingk provides an integration platform as a service, APIs, data processing and data integration tools for users to rapidly integrate and share data with other applications, systems, institutions and enterprises.
A. Eligibility and Compliance with Law. This is a contract between you and Lingk. You must read and agree to these terms before using the Lingk Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Lingk.
You may only use the Services, including uploading and using and Customer Data (defined below), only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You agree, and we agree, to uphold any responsibilities that you may have, or we may have, under the Family Educational Rights and Privacy Act (“FERPA”), and any other state or federal privacy laws which may apply to the information contained in Customer Data. We provide the Services as an outsourced institutional function under FERPA 34 CFR Part 99.31(a)(1).
Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Lingk.
B. Lingk Service. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Lingk reserves all rights not expressly granted herein in the Service and the Lingk Content (as defined below). Lingk may terminate this license at any time for any reason or no reason.
C. Lingk Accounts. Your Lingk account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, and account types may differ in functionality and the features available. If you open a Lingk account on behalf of a school, university, company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Lingk or the Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date so please always update this information promptly if it changes. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Lingk immediately of any breach of security or unauthorized use of your account. Lingk will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your account settings page. By providing Lingk your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. Service Rules. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Lingk grants the operators of public search engines revocable permission to use spiders to copy publically available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you, to specific account types, or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Users on the Lingk Service. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Lingk shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. Our Proprietary Rights
Except for your Customer Data (defined below), the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and Customer Data or other content belonging to other Users (the “Lingk Content”), and all Intellectual Property Rights (defined below) related thereto, are the exclusive property of Lingk and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Lingk Content. Use of the Lingk Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Lingk under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Lingk does not waive any rights to use similar or related ideas previously known to Lingk, or developed by its employees, or obtained from sources other than you.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
3. Customer Data – Rights and Responsibilities
A. Customer Data. Certain features and functionalities of the Service allow you to upload or make available through the Service data belonging to your end users, including data and information that is related to identifiable student, whether currently enrolled or otherwise, that is maintained by you, such as “educational records” as defined by FERPA (all such data referred to in this Agreement as “Customer Data”). As between us, you retain ownership and control of your Customer Data. We shall use and process Customer Data solely for the purpose of providing the Services under this Agreement, subject to the provisions in this Section. You are solely responsible for any and all of your Customer Data and, except for the license below to provide the Services, we do not own, control or license your Customer Data.
We provide access to Customer Data only to those employees and certain trusted service providers who have a legitimate need to access such information in connection with providing the Services to you. Of course, anyone involved in the handling of Customer Data will treat such data as strictly confidential and shall not redisclose such data except as necessary in order to provide the Services.
B. Customer Data License Grant. By submitting, or causing other Users to submit, Customer Data on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, all access, rights and licenses to the Customer Data required for us and our subcontractors and service providers to provide the Services, or to enforce our rights under this Agreement. You acknowledge and agree that we may collect, analyze and use anonymized or aggregated Customer Data (i.e., Customer Data that has been de-identified and aggregated in a way that the data cannot be used to reasonably identify a specific school or institution, a student or any particular User), or data derived from Customer Data, as well as data about your access and use of our Services, for the purpose of providing, operating, analyzing, and improving our Services.
C. Your Responsibilities. In connection with your Customer Data, as of the date you accepted this Agreement and throughout the term of this Agreement, you represent, warrant and agree that:
you have obtained such Customer Data lawfully, and such Customer Data does not and will not violate any applicable laws or a third party's proprietary or intellectual property rights;
at all times, you will conspicuously post and maintain a privacy policy that provides notice of your data collection and use practices, including your sharing of personal information with third party service providers such as Lingk;
you shall not provide, or cause your end users to provide, and shall not specify or engineer a request to collect, any Customer Data or content that contains bank account information, credit or debit card information, personal information collected from children under 13 unless you can provide the necessary consent for us to collect such information, social security numbers, or health or medical information, except in designated areas of the Service which permit the receipt of such sensitive data elements. Such data may not be submitted or stored by Lingk without Lingk’s explicit consent, and Lingk reserves the right to delete or anonymize such data if discovered stored in an unauthorized location within the Service;
you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to your Customer Data that you share with us for the provision of Services under this Agreement;
we may exercise the rights to your Customer Data granted under this Agreement without liability or cost to any third party; and
your Customer Data complies with the terms of this Agreement.
D. Access to Your Customer Data. The Service allows you to designate other Users, such as third party developers or your own internal developers, to securely access your Customer Data through the Service (including any APIs we may provide). You acknowledge and agree that we are not responsible for the data practices of third party developers with whom you elect to share Customer Data and that, as between us, you are solely responsible for the consequences of providing access to or otherwise transmitting your Customer Data to such developers. At any time, you can revoke a developer’s access to your Customer Data through Lingk by contacting us at support@lingk.io.
Customer Data is subject to the control of our Customers and we cannot allow other parties to access, delete or control Customer Data without consent of the Customer. Whenever possible, we will defer any data access requests to the Customer.
E. Deletion of Customer Data. At the end of the term of this Agreement, Lingk shall de-identify all Customer Data in our possession within 30 days of the end of the term of this Agreement. You may request the deletion of any of your Customer Data, except for the aggregated and anonymized Customer Data as contemplated by Section 4(B) above, at any time. We will comply with all such requests within ten (10) days, unless such data is maintained in the form of backups or internal logs and which shall be deleted in the normal course of business.
4. Lingk Property
The Service contains data, information, and other content not owned by you, such as reputational or status indicators, analytics and other information or data associated with your account (“Lingk Property”). You understand and agree that regardless of terminology used, Lingk Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Lingk’s sole discretion. Lingk Property is not redeemable for any sum of money or monetary value from Lingk at any time. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Lingk on Lingk servers, including without limitation any data representing or embodying any or all of your Lingk Property. You agree that Lingk has the absolute right to manage, regulate, control, modify and/or eliminate Lingk Property as it sees fit in its sole discretion, in any general or specific case, and that Lingk will have no liability to you based on its exercise of such right. All data on Lingk’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON LINGK’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN LINGK’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. LINGK DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON LINGK’S SERVERS.
5. No Professional Advice
If the Service provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area, including compliance with any applicable laws and regulations regarding the collection and use of your Customer Data.
6. Privacy
We care about the privacy of our Users and the integrity and security of their data and personal information. You understand that by using the Services, you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy [insert privacy policy link], and to have your personally identifiable information collected, used, transferred to and processed in the United States. We strive to use physical, managerial and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
We maintain physical, managerial and technical safeguards to preserve the integrity and security of our Users’ Customer Data. If there is any disclosure or access to any personally identifiable Customer Data by an unauthorized party, we will promptly notify any affected Customer and will use reasonable efforts to cooperate with their investigation of the incident. If the incident triggers any third party notice requirements under applicable laws, you agree that, as the owner of the Customer Data, you may be responsible for the timing, content, cost and method of any required notice and compliance with those laws.
7. Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Lingk. Lingk does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your Customer Data on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Lingk’s Privacy Policy do not apply to your use of such sites. You expressly relieve Lingk from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Lingk shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
8. Indemnity
You agree to defend, indemnify and hold harmless Lingk and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including, but not limited to, FERPA; (v) any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
9. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LINGK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, LINGK, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
LINGK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE LINGK SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND LINGK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LINGK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL LINGK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LINGK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) CONTENT PROVIDED BY A THIRD PARTY OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL LINGK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO LINGK HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF LINGK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Lingk makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Contra Costa County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Contra Costa County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
B. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM LINGK. For any dispute with Lingk, you agree to first contact us at legal@lingk.io and attempt to resolve the dispute with us informally. In the unlikely event that Lingk has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Contra Costa County, California, unless you and Lingk agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Lingk from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND LINGK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12. General
A. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Lingk without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to the Agreement. Lingk may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Lingk in our sole discretion. Lingk reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Lingk is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Lingk may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.
C. California Residents. The provider of services is Lingk Inc., 4115 Blackhawk Plaza Circle, Suite 100, Danville, CA 94506, telephone 925-648-7462. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
D. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Lingk in connection with the Service, shall constitute the entire agreement between you and Lingk concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
E. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Lingk’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
F. Contact. Please contact us at legal@lingk.io with any questions regarding this Agreement.
This Agreement was last modified on August 24, 2020.
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