LAST UPDATED: June 22, 2020
Hyphenus, Inc. (the “Company”, “we”, or “us”) operates the coParenter ProTool web application and the coParenter mobile application collectively known as The coParenter Platform (the “Platform”). The Platform helps separating, divorced and never married parents (“co-parents”) improve co-parenting communication, make and manage parenting agreements, and resolve disputes with the input from a trained third party. These Terms of Service (these “Terms”) are a legally binding contract between you and Hyphenus regarding your use of the Platform. BY USING OR ACCESSING THE PLATFORM, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PLATFORM.
IT IS MUTUALLY AGREED AS FOLLOWS:
- Definitions – The following terms shall have the following meanings as used in this Agreement:
1.1. “Affiliate” means an individual, trust, business trust, joint venture, partnership, corporation, association or other legal entity which (directly or indirectly) is controlled by, controls or is under common control with a Party. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as used with respect to any Party, shall mean the possession (directly or indirectly) of at least fifty percent (50%) of the outstanding voting securities of a corporation or comparable equity interest in any other type of entity.
1.2. “Hyphenus Trademarks” means those trademarks of Hyphenus to be used in connection with the Platform and Products as set forth in Section 11.1 hereto (as may be amended and supplemented from time to time).
1.3. “Subscriber Trademarks” means the trademarks of Subscriber to be used in connection with the distribution of the Platform and Products as set forth in section 11.2 hereto (as may be amended and supplemented from time to time).
1.4. “Confidential Information” means each Party’s confidential, nonpublic information as defined in Section 7 below.
1.5. “Intellectual Property Rights” means all intellectual property rights worldwide arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired, including all (a) rights associated with works of authorship, including without limitation copyrights and moral rights, (b) rights relating to the protection of trade secrets and confidential information, (c) patents, (d) trademarks, service marks, trade dress and trade names, and (e) any other proprietary rights relating to intangible property.
1.6. “Non-Disclosure Agreement” means any Non-Disclosure Agreement that is in place by and between HYPHENUS and SUBSCRIBER.
1.7. “Person” means an individual, trust, business trust, joint venture, partnership, corporation, association or other legal entity.
1.8. “Term” means the term of this Agreement as provided under Section 2 below, including any Renewal Term of this Agreement.
1.9. “Third Party” means any Person other than Hyphenus, Subscriber, or Affiliates of either.
1.10. “SaaS Product” means the coParenter mobile application, the coParenter ProTool, and any successor components thereto, including, without limitation, any current and future updates, enhancements, add-on modules and optional functionality produced by Hyphenus.
1.11. “coParenter” means the mobile app available from the Apple App Store or Google Play Store
1.12. “ProTool” means the browser based app that is used to deliver mediation, coaching, parenting plan creation, and other services to users on coParenter that is generally available at https://www.coparenter.pro. The ProTool may also be referred to as the coParenter Pro Tool.
1.13. “Subscriber Account” means the account that is set-up on the ProTool for delivery of services to coParenter End-Users.
1.14. “Customer” means a client of SUBSCRIBER’s that SUBSCRIBER may onboard to coParenter by sharing a Dynamic Link or using the ProTool to register the End User.
1.15. “Account Administrator” means the SUBSCRIBER primary point of contact responsible for managing Subscriber’s ProTool Users including assigning rights based on the role they will play on the ProTool.
1.16. “ProTool User” means an individual with an account on the Pro Tool that enables them to deliver services such as mediation, coaching, parenting plan creation, and communication monitoring.
1.17. “End User” means an individual or family user who uses the coParenter Mobile app.
1.18. “Mediation” means issue resolution over the ProTool with one or multiple participants who initiate a mediation request from coParenter.
1.19. “Coaching” means a one-on-one session delivered on the ProTool with an End User on coParenter. Coaching can be delivered by a ProTool User with Mediation rights, or by a ProTool User who only has Client Communication Rights.
1.20. “Dynamic Link” means an http link or URL that can be shared on web sites, email or other internet mediums that easily allows End Users to install coParenter and register for an End User Account under the Organization Account. This will enable the End User to be connected with a Mediator or other Pro Tool User associated with the Organization Account, depending on the rights granted to the Pro Tool User during setup.
1.21. “Onboarding coParents” means manually registering an End User by inputting their name, email address, and mobile phone number into the Pro Tool, or making the Dynamic Link associated with the Organization Account available to end users who can then register on their own.
- Term. This agreement begins on of the coParenter ProTool Order Form and will continue until terminated (the “Term”).
- Support Services
3.1. SUBSCRIBER Support. Beginning on the Effective Date, and at HYPHENUS’s expense, so long as SUBSCRIBER’s account is in good standing, HYPHENUS will provide SUBSCRIBER with electronic support during HYPHENUS’s normal business hours in order to help SUBSCRIBER correct problems with the Software, and email-based support system generally available during normal business hours in the pacific time zone.
3.2. End User Support. Beginning on the Effective Date, and at HYPHENUS’s expense, so long as SUBSCRIBER’s account is in good standing, HYPHENUS will provide SUBSCRIBER’s End Users with electronic support during HYPHENUS’s normal business hours in order to help SUBSCRIBER correct problems with the Software, and email-based support system generally available normal business hours in the pacific time zone.
- Data Protection. HYPHENUS shall implement appropriate safeguards to prevent unauthorized access to, use of, or disclosure of the SUBSCRIBER and End User information.
- Prohibited Conduct. By using the Platform, you agree not to engage in any of the following activities on the Platform:
6.1. do or say anything to injure or cause harm others;
6.2. display material containing nudity or pornographic material of any kind;
6.3. provide material that is grossly offensive to the online community, including blatant expressions of bigotry, prejudice, racism, hatred, or profanity;
6.4. promote or provide instructional information about illegal activities, or promoting physical harm or injury against any group or individual;
6.5. use messaging services to deliver promotional content such as marketing, coupons, advertisements, notifications regarding a job opportunity, and sweepstakes;
6.6. defame any person or group;
6.7. display material that exploits children under 18 years of age;
6.8. violate the rights of another, including but not limited to the intellectual property rights of another, including using the Platform for acts of copyright, trademark, patent, trade secret, or other intellectual property infringement, including but not limited to offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs;
6.9. use the Platform to display harassing, abusive, threatening, harmful, vulgar, obscene, or tortuous material or invade other’s privacy;
6.10. interfere with or disrupt the Platform, or servers or networks connected to the Platform, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;
6.11. post advertisements or links to competing services, transmit any junk mail”, “spam”, “chain letters”, or unsolicited mass distribution of email;
6.12. encourage any illegal activity, including anything to do with illegal drugs, gambling, pornography, prostitution, child pornography, robbery, spreading computer viruses, cracking into private computer systems, software infringement, trafficking in credit card codes, or other crimes; and
- Confidentiality Obligations.
7.1. Certain features of the Platform may permit you or End Users to upload content to the Platform, including messages, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Platform. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Platform. By providing User Content to or via the Platform, you grant the Company a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, as necessary for us to provide the Platform and related services and for our internal business purposes. You are solely responsible for your User Content and the consequences of providing User Content via the Platform; the Company is not responsible or liable for User Content. By providing User Content via the Platform, you affirm, represent, and warrant that: (a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize the Company and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by the Company, the Platform, and these Terms; and (b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause the Company to violate any law or regulation.
7.2. Confidential Information. In the course of performing the Agreement, each Party may receive from the other User Content that the other Party desires to protect against further use or disclosure. Each Party acknowledges and agrees that absent fraud, neither Party makes any express or implied representation or warranty with respect to the Confidential Information, including with respect to the accuracy, completeness or usefulness of the Confidential Information.
7.3. Nondisclosure of Confidential Information. During the Term of this Agreement, and for and for five years thereafter, or for so long as is statutorily mandated in the jurisdiction in which Confidential Information was uploaded, the Confidential Information will be kept strictly confidential and will not be disclosed by the receiving Party except as specifically permitted by this Agreement or specifically authorized in advance in writing by the disclosing Party. The receiving Party will not take any action that causes any Confidential Information to lose its confidential and proprietary nature. The Confidential Information of the disclosing Party may only be disclosed to those employees, contractors or agents of the receiving Party that have a need to know in order to perform the obligations under this Agreement and/or use the Programs and/or Services provided under this Agreement. The receiving Party will inform such employees, contractors or agents of the confidential and proprietary nature of Confidential Information and will take commercially reasonable and necessary steps to ensure that the terms and conditions of this Agreement are not violated by such persons, including but not limited to those steps that the receiving Party would take to protect similar information of its own that it regards as proprietary or confidential. The receiving Party will be responsible and liable for any breach of the terms and conditions of this Agreement by any such persons.
7.4. Exceptions. Notwithstanding anything to the contrary set forth in this Agreement, Confidential Information shall not include: (i) public records deemed not confidential published to the general public and available at the time of transmission of communication (ii) knowingly sharing of communication that is transmitted by waiver from the individual who has the right of confidentiality (iii) any communication that is deemed not confidential by stipulation, agreement or court order iv) where the confidential communication is prohibited by state or federal law.
7.5. Disclosure and Notification. If the receiving Party is required by law, regulation, court order, or other legal, regulatory, or judicial process or proceeding (all the foregoing are generally referred to as “required by law”), to disclose any Confidential Information, the receiving Party will provide the disclosing Party with notice (to the extent permitted by applicable law) as soon as possible of such requirement so that the disclosing Party may commence efforts to seek an appropriate protective order or assurances of confidentiality, and receiving Party shall cooperate with such efforts in a commercially reasonable manner (at the disclosing Party’s expense) prior to making any such disclosure. If, in the absence of a protective order assurances that confidential treatment will be afforded such information, and provided that the receiving Party has cooperated with disclosing Party as required in the previous sentence, the receiving Party is nonetheless, based upon the opinion of its legal counsel, required by law to disclose any Confidential Information, the receiving Party may disclose such Confidential Information without liability hereunder, provided that (i) receiving Party discloses only that portion of the Confidential Information which such counsel advises receiving Party is legally required to be disclosed, and (ii) receiving Party exercise commercially reasonable efforts to ensure that confidential treatment will be afforded such portion of the Confidential Information.
7.6. Non-Disparagement. Each Party agrees and covenants that it shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning the other Party or its businesses, or any of its employees, officers, or directors and its existing and prospective customers, suppliers, investors, and other associated third-parties, now or in the future.
7.7. Publicity and Announcements. SUBSCRIBER shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of HYPHENUS, except to the extent that SUBSCRIBER (based upon the reasonable advice of counsel) is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.
- SUBSCRIBER Restrictions. SUBSCRIBER will not:
8.1. distribute, license, loan, or sell the Software or other content that is contained or displayed in it;
8.2. modify, alter, or create any derivative works of the Software;
8.3. reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software;
8.4. remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software;
8.5. upload, post, reproduce or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
- Proprietary Rights.
9.1. Ownership of the SAAS Product. Hyphenus represents and warrants that Hyphenus and its licensors own all intellectual property rights in and to the SAAS Product. SUBSCRIBER acknowledges and agrees that it shall not obtain any intellectual property ownership interest of any kind in any of the SAAS Product by or through this Agreement and that nothing in this Agreement shall give SUBSCRIBER any right, title or interest in the SAAS Product, except as expressly set forth herein.
9.2. SUBSCRIBER and HYPHENUS hereby agree that (i) each Customer owns all intellectual property rights in and to its Customer Data, (ii) Customer Data is the confidential information of such Customer, (iii) Customer Data may not be accessed or used by either Party for any purpose other than as reasonably required to enable such Customer to use its subscription to the SAAS Product(s); and (iv) if applicable, SUBSCRIBER, Hyphenus and/or Customer shall enter into a Data Protection Agreement.
10.1. Hyphenus Trademarks. Hyphenus hereby grants to SUBSCRIBER a limited, non-exclusive, royalty-free, non-transferable license during the Term and to use the Hyphenus Trademarks solely for the purpose of exercising SUBSCRIBER’s rights and obligations under this Agreement. SUBSCRIBER shall submit to Hyphenus within a reasonable time prior to publication for approval (which approval shall not be unreasonably withheld or delayed) any materials used by a SUBSCRIBER using the trademarks of Hyphenus. If Hyphenus does not give notice of its approval or objection within ten (10) days after receipt of any such materials, such materials shall be deemed approved.
10.2. SUBSCRIBER Trademarks. Only to the extent set forth herein, SUBSCRIBER hereby grants to Hyphenus a limited, non-exclusive, royalty-free, non-transferable license during the Term to use the SUBSCRIBER Trademarks solely for the purpose of exercising Hyphenus’s rights and obligations under this Agreement. Hyphenus may only use SUBSCRIBER trademarks with the prior written consent of SUBSCRIBER, and consistent with the SUBSCRIBER’s established trademark guidelines, as they may be amended from time to time.
10.3. Approval. SUBSCRIBER shall not be required to submit for Hyphenus’s approval any marketing or sales materials containing Hyphenus’s trademarks which are produced and used in the ordinary course of SUBSCRIBER’s exercise of its rights or fulfillment of its obligations under this Agreement.
10.4. Retention of Rights. Nothing contained herein shall, nor shall be deemed to, transfer ownership of the Hyphenus Trademarks or the SUBSCRIBER Trademarks to the other Party. If a Party, in the course of marketing or promoting the Products, acquires any goodwill in any of the trademarks of the other Party, all such goodwill shall automatically vest in the owner of such trademark, without any separate payment or other consideration of any kind. Each Party shall take all actions reasonably necessary at the sole expense of the other Party to effect such vesting.
10.5. Validity. Neither Party shall contest the validity of any of the other Party’s trademarks or such Party’s exclusive ownership of them on the basis of this Agreement.
- Export Compliance. HYPHENUS shall be solely responsible for obtaining all licenses, Permits or authorizations as required from time to time by the United States and any other government for any export related to the coParenter or the ProTool.
12.1. Termination on Notice. SUBSCRIBER may terminate a monthly recurring agreement for any reason on 30 days’ notice to HYPHENUS. SUBSCRIBER may terminate an annual Recurring agreement for any reason upon at least 30 days notice prior to the annual subscription renewal date. SUBSCRIBER agrees that any annual subscription fee includes a discount and so in exchange for this discounted fee, agrees that there shall be no prorated refund available.
12.2. Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
12.2.1. the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
12.2.2. the failure, inaccuracy, or breach continues for a period of 30 days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.
12.3. Termination for Failure to Pay. HYPHENUS may terminate this agreement with immediate effect by delivering notice of the termination to SUBSCRIBER if SUBSCRIBER fails to pay the monthly Subscription Fee on time 3 times over any 12 month period. HYPHENUS may terminate this agreement with immediate effect if any SUBSCRIBER payment is over 10 days late.
- Effect of Termination
13.1. Pay Outstanding Amounts. SUBSCRIBER shall immediately pay to HYPHENUS all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
13.2. Discontinuance of Use. SUBSCRIBER shall cease all use of the Service upon the effective date of the termination. HYPHENUS may terminate subscriber access to the Service.
13.3. Recovery of Data. SUBSCRIBER will have 30 days from the date of termination to retrieve any of data that SUBSCRIBER wishes to keep, HYPHENUS shall provide reasonable support to returning SUBSCRIBER data.
14.1. Indemnification by HYPHENUS.
14.1.1. Indemnification for Infringement Claims. HYPHENUS shall indemnify SUBSCRIBER against all losses and expenses arising out of any proceeding brought by a third party, and arising out of a claim that the Service infringe the third party’s Intellectual Property rights.
14.2. Notice and Failure to Notify
14.2.1. Notice Requirement. Before bringing a claim for indemnification, SUBSCRIBER shall notify HYPHENUS of the indemnifiable proceeding, and deliver to HYPHENUS all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
14.2.2. Failure to Notify. If the SUBSCRIBER fails to notify HYPHENUS of the indemnifiable proceeding, HYPHENUS will be relieved of its indemnification obligations.
14.3. Exclusive Remedy. SUBSCRIBERs’ right to indemnification is the exclusive remedy available with respect to a claim of indemnification.
- REPRESENTATIONS AND WARRANTIES
15.1. By Both Parties. Each Party represents and warrants to the other Party that:
15.1.1. It has the full corporate right, power, and authority to enter into this Agreement and to perform the acts required of it hereunder.
15.1.2. It owns or has obtained all rights necessary to grant the licenses and fulfill its obligations under this Agreement.
15.1.3. The execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is bound.
15.1.4. When executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
15.2. By Hyphenus. Hyphenus warrants and covenants that the SAAS Product resold hereunder will perform in substantial accordance with the specifications and descriptions contained in the documentation and product descriptions published by Hyphenus with regard to the SAAS Product. Hyphenus warrants that the services delivered hereunder will be performed competently in a professional workmanlike manner by people with the required skills and training to perform such services. In the event the SAAS Product and/or the services delivered hereunder fail to meet the warranties set forth herein, SUBSCRIBER may deliver notice thereof to Hyphenus and Hyphenus shall promptly modify the SAAS Product or re-perform such services, as applicable, provided that the foregoing shall not be deemed to limit any other remedies SUBSCRIBER may have with respect to such noncompliance.
- WARRANTY DISCLAIMER, LIMITATION OF LIABILITY AND INDEMNIFICATION
16.1. Warranty Disclaimer
16.1.1. THE ONLY WARRANTIES EXTENDED BY HYPHENUS WITH RESPECT TO THE SAAS PRODUCT AND THE SUPPORT SERVICES TO BE PROVIDED BY HYPHENUS HEREUNDER SHALL BE THOSE SET FORTH IN THIS AGREEMENT AND THE EXHIBITS HERETO. HYPHENUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
16.2. Limitation of Liability
16.2.1. EXCEPT WITH REGARD TO (A) THE INDEMNITIES SET FORTH IN SECTION 11.3 BELOW, (B) ANY BREACH OF SECTION 7 (CONFIDENTIALITY AND PRIVACY) OR SECTION 5 (DATA PROTECTION), (C) LOSSES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (D) ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF CUSTOMER DATA OR OTHER PERSONALLY IDENTIFIABLE INFORMATION, OR (E) LOSSES ARISING OUT OF ANY VIRUSES, TROJAN HORSES, WORMS, TRAPS, SPYWARE, BACK DOORS, DISABLING DEVICES OR LIKE DESTRUCTIVE OR SELF-REPLICATING CODE CONTAINED IN THE SAAS PRODUCT, NEITHER PARTY’S ENTIRE AGGREGATE LIABILITY PURSUANT TO, IN CONNECTION WITH AND ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY LEGAL ACTION OR PROCEEDING, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY SUBSCRIBER TO HYPHENUS FOR THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACTION GIVING RISE TO LIABILITY.
16.2.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR AMOUNTS REPRESENTING LOSS OF PROFIT, LOSS OF BUSINESS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.3. Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
16.4. Maximum Liability. Neither party’s liability under this agreement will not exceed the fees paid by under this agreement during the 12 months preceding the date upon which the related claim arose.
- ARBITRATION PROCEDURES
17.1. Any controversy, dispute or claim between SUBSCRIBER and Hyphenus, or Hyphenus’s officers, agents or other employees, relating to this Agreement, shall be settled by binding arbitration, at the request of either party. The arbitrability of any controversy, dispute or claim under this provision shall be determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by application of the procedural provisions of the California Arbitration Act. Arbitration shall be the exclusive method for resolving any dispute; provided, however, that either party may request provisional relief from a court of competent jurisdiction, as provided in California Code.
17.2. Hyphenus and SUBSCRIBER will select an arbitrator by mutual agreement. If the Hyphenus and SUBSCRIBER are unable to agree on a neutral arbitrator, either party may elect to obtain a list of arbitrators from the Judicial Arbitration and Mediation Service, the American Arbitration Association, or any other reputable dispute resolution organization.
17.3. The demand for arbitration must be in writing and must be made by the aggrieved party within the statute of limitations period provided under applicable California and/or federal law for the particular claim. Failure to make a written demand within the applicable statutory period constitutes a waiver to raise that claim in any forum. Arbitration proceedings will be held in Los Angeles County, California.
17.4. The arbitrator shall apply applicable California and/or federal substantive law to determine issues of liability and damages regarding all claims to be arbitrated, and shall apply the California Rules of Evidence to the proceeding. The parties shall be entitled to conduct reasonable discovery and the arbitrator shall have the authority to determine what constitutes reasonable discovery. The arbitrator shall hear motions for summary disposition as provided in the California Rules of Civil Procedure.
17.5. Within thirty days following the hearing and the submission of the matter to the arbitrator, the arbitrator shall issue a written opinion and award which shall be signed and dated. The arbitrator’s award shall decide all issues submitted by the parties, and the arbitrator may not decide any issue not submitted. The arbitrator shall prepare in writing and provide to the parties a decision and award which includes factual findings and the reasons upon which the decision is based. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and allowed by law.
17.6. The final award may be appealed to another arbitrator who will be chosen by the parties in the same manner as the original arbitrator. All the rules governing judicial appeals of judgments from the District Court shall apply to any appeal of this award, including but not limited to the time frames, deadlines and the standards of review.
17.7. The cost of the arbitrator and other incidental costs of arbitration shall be borne equally by the parties. The parties shall each bear their own costs and attorneys’ fees in any arbitration proceeding, provided however, that the arbitrator shall have the authority to require either party to pay the costs and attorneys’ fees of the other party, as is permitted under federal or state law, as a part of any remedy that may be ordered.
17.8. Both Hyphenus and SUBSCRIBER understand that by using arbitration to resolve disputes they are giving up any right that they may have to a judge or jury trial with regard to all issues concerning this Agreement.
17.9. No Hyphenus representative can modify this provision in any manner nor enter into any agreement that is contrary to this provision unless it is in writing and signed by the CEO or COO of Hyphenus. If any term, provision, covenant or condition of this Arbitration Section 18 is held by a court of competent jurisdiction or an arbitrator to be invalid, void, or unenforceable, the remaining terms and provisions of this Exhibit D will remain in full force and effect and shall in no way be affected, impaired, or invalidated.
- General Provisions
18.1. Entire Agreement. This agreement represents the entire understanding between the parties with respect to its subject matter and supersedes any previous communication or agreements that may exist.
18.2. Amendment. This agreement can be amended only by a writing signed by both parties.
18.3. Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.
Any notice, demand or other communication which under the terms of this Agreement must or may be given or made by to Hyphenus shall be in writing and shall be sent via email to firstname.lastname@example.org
18.5. Governing Law. This agreement will be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.
18.6. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
18.7. Waiver. The failure or neglect by a party to enforce any of rights under this agreement will not be deemed to be a waiver of that party’s rights.
18.8. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, butwill not be excused for failure or delay resulting from only general economic conditions or other general market effects.