Terms & Conditions
Last Updated on April 15, 2022
These terms of service (“agreement”) describe the terms and conditions on which overjet, inc. (“overjet”) makes available its proprietary software platform and related services to any customer (the “customer” or “you”). By indicating acceptance of this agreement or by otherwise using the service, customer is entering into a legally binding agreement with overjet. If customer does not agree to this agreement, customer must not complete the subscription process and must not use the service.
If customer or the third-party on behalf of whom customer is acting (also, a “customer”) and overjet have already entered a separate agreement governing provision of overjet’s services that has been signed on behalf of both overjet and customer, then that other agreement shall apply in place of the terms herein, notwithstanding any checkbox or electronic acceptance required in order to use the service.
1. Provision of the Service.
1.1 Provision Generally. During the Term as defined in (Section 5.1) Overjet will provide Customer with access to Overjet’s proprietary software platform and related services provided for herein (collectively, the “Service”) in accordance with the terms and conditions of this Agreement. In order to access and use the Service, Customer is responsible at its own expense for obtaining its own Internet access, and any hardware and software required therefor.
1.2 Grant of Rights. Subject to the terms and conditions of this Agreement, Overjet hereby grants to Customer a limited, non-exclusive, non-transferable right for Customer’s Users (as defined below) to access and use the Service, solely for Customer’s internal business purposes during the Term. A “User” shall mean an employee or independent contractor of Customer. All rights not expressly granted to Customer are reserved by Overjet and its licensors. There are no implied rights.
1.3 Eligibility Requirements. By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable; (c) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third -party business, and all relevant payment information, is within Customer’s right to use, and is and will remain accurate, complete and current; (d) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) None of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide Overjet with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth above and the terms and conditions of this Agreement.
1.4 Restrictions. Customer shall not (and shall not allow any third party to): (a) use the Service for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (b) permit any non-User to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (e) use any robot, spider, scraper or other automated means to access the Service in an unauthorized manner, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service; (f) use the Service with the intent to diagnose, treat, mitigate, prevent, or cure any disease or other condition in humans except as otherwise expressed through an IRB-approved study, in which case such express use shall be limited to activities in the IRB approved protocol; or (g) use the Service in a manner not permitted by Overjet. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefor. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Customer and Users. Customer shall notify Overjet immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, Overjet reserves the right to suspend Customer’s or any User’s access to the Service if Overjet reasonably believes that Customer or such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).
1.5 Customer Cooperation. Customer shall: (a) reasonably cooperate with Overjet in all matters relating to the Service; (b) respond promptly to any Overjet request to provide information, approvals, authorizations or decisions that are reasonably necessary for Overjet to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as Overjet may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
2. Overjet Technology. In connection with providing the Service, Overjet and its licensors shall operate and support the hosted environment used by Overjet to provide the Service, including the Overjet Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Overjet. As used herein, “Overjet Technology” means all of Overjet’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Overjet in providing the Service.
3. Ownership. Customer acknowledges and agrees that as between Overjet and Customer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Service, other than Customer Data), the Overjet Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Overjet or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Overjet Technology other than a limited right to use the Service in accordance with this Agreement. Overjet acknowledges and agrees that as between Customer and Overjet, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Overjet trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service. Overjet acknowledges and agrees that as between Customer and Overjet, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions set forth and agreed to herein.
4.1 Fees. In consideration of the provision of the Service, Customer shall pay Overjet the applicable fees pursuant to the fee schedule and Overjet service plan chosen by Customer and make such payment in accordance with the instructions and schedule provided for by Overjet. If Customer purchases a subscription plan, such subscription will continue in effect and renew on a recurring monthly basis, unless and until Customer cancels such subscription. If Customer provides a credit card or other payment method accepted by Overjet and signs up for a monthly paid subscription through the Service, Customer is expressly agreeing that Overjet (or its designated third-party payment provider) is authorized to charge Customer’s payment method for the applicable subscription fee (plus any applicable taxes) on a recurring monthly.
4.2 Increases; Trials. Overjet reserves the right to increase its fees at any time, effective as of the beginning of Customer’s next billing cycle, upon notice to Customer prior to the beginning of such billing cycle. If Customer objects to the fee increase, Customer may terminate the Service by logging into Customer’s account on the Service and cancelling it there (if such functionality is provided therein), or by written notice to Overjet, prior to the beginning of the next billing cycle. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees. If Overjet offers Customer a free trial, once such free trial period ends, Overjet will begin billing Customer’s payment method for Customer’s periodic subscription fees, unless Customer cancels prior to the end of such free trial.
4.3 Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s and its Users’ access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Overjet’s income), which may be invoiced by Overjet from time-to-time.
4.4 Late Payments. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Overjet for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
5.1 Term, Termination and Automatic Renewal. The term of this Agreement shall commence upon Customer’s subscription to the Service and, unless earlier terminated as set forth herein, shall continue for the period of the initial subscription selected by the Customer (the “Initial Term”). The Customer may terminate this Agreement upon thirty (30) days’ written notice to Overjet (or such shorter period as Overjet may permit in its sole discretion). Overjet reserves the right to terminate this Agreement at any time upon written notice to the Customer and shall repay to Customer any pro-rated portion of the fees paid to it in connection with the Service that the Customer would have received but for Overjet’s cancellation. In the event that the Agreement is not terminated as set forth herein it shall continue to automatically renew for the length of the Initial Term (a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term”, and the Subscription Terms are referred to collectively as the “Term.”
5.2 Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
5.3 Effects of Termination; Survival. Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Overjet shall no longer provide access to the Service to Customer, and (b) Customer shall cease and cause its Users to cease using the Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3 through 11.
6.1 Data Generally. All data and information which the Customer inputs into the Service (the “Customer Data”) is stored in a private and secure fashion, and will not be used by Overjet except as permitted herein. Customer hereby grants to Overjet a limited, non-exclusive, royalty-free right and license to use, reproduce, manipulate and display the Customer Data: (a) during the Term solely in connection with providing the Service to Customer; and (b) during and after the Term to improve, develop and market the Service, provided that Overjet may only use de-identified Customer Data to improve, develop and market the Service. Without limiting the above, Overjet may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser or device, and Overjet may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Overjet shall operate the Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. If any Customer Data qualifies as Protected Health information within the meaning of the Health Insurance Portability and Accountability Act of 1996, Title 45 Code of Federal Regulations (CFR) Parts 160 and 164, Subparts A and E, the Standards for Privacy of individually Identifiable Health Information and 45 CFR Parts A and C, the Security Standard, as amended by the American Recovery and Reinvestment Act of 2009, the terms and conditions of the Business Associate Agreement set forth on Schedule 1 hereto shall apply with respect to the protection and handling of such information.
6.2 Additional Customer Responsibilities. Customer is solely responsible for all Customer Data. Overjet does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Overjet any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Overjet any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Overjet any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Service; (f) upload or otherwise make available to Overjet any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data.
7. Representations and Warranties; Disclaimer.
7.1 General Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.
7.2 Overjet Limited Warranty. Overjet further represents and warrants that (a) it will provide the Service in a competent and workmanlike manner; and (b) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Customer under this Agreement. Overjet does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. Overjet makes no warranty regarding features or services provided by any third parties. Overjet retains the right to modify its services and the Overjet Technology in its sole discretion. Customer’s sole remedy for Overjet’s breach of the warranty in this paragraph shall be that Overjet shall remedy the applicable error, or if Overjet is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid during the six (6) month period leading up to when the breach of warranty occurred.
7.3 Disclaimer. Except for the warranties set forth in sections 7.1-7.2 above, overjet makes no representation or warranty whatsoever, and hereby disclaims all representations and warranties with respect to the service (in each case whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise), including any warranty (a) of merchantability, fitness for a particular purpose, or noninfringement, (b) that the service will meet customer’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, (c) as to the results that may be obtained from the use of the service, or (d) as to the accuracy or reliability of any information obtained from the service.
7.4 Additional disclaimer. Customer acknowledges that the service is hosted by a third party hosting provider (the “hosting contractor”) and uses third party server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs for delivery of the services. Additionally, overjet uses third parties to help receive payments (“payment processor”). Overjet may change its hosting contractor and payment processor at any time. Your use of the service is subject to any restrictions imposed by the hosting contractor and the payment processor, as applicable. Notwithstanding any other provision of this agreement, overjet shall not be liable for any problems, failures, defects or errors with the service to the extent caused by the hosting contractor or payment processor. Customer acknowledges that the fees payable for the service reflect the fact that overjet is not responsible for the acts and omissions of the hosting contractor or payment processor, and that overjet could not afford to provide the service at the prices offered if it were responsible for the acts or omissions of the hosting contractor or payment processor
8.1 Damages cap. To the fullest extent permissible by law, overjet’s total liability for all damages arising out of or related to the service or this agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the total amount of fees paid by customer to overjet under this agreement during the six (6) months preceding the event giving rise to the claim. This limitation will not be increased by the existence of more than one claim.
8.2 Disclaimer of indirect damages. Except for (a) customer’s obligation to pay all amounts due hereunder; (b) its indemnification obligations; and (c) its breach of any intellectual property or confidentiality obligations or restrictions herein (including any limitations or restrictions on use of the service), in no event shall either party be liable for any indirect, consequential, incidental, special, exemplary or punitive damages (including loss of data, profits or revenue) arising out of or related to the service or this agreement, whether such damages arise in contract, tort (including negligence) or otherwise.
8.3 Basis of the bargain. The parties agree that the limitations of liability set forth in this section 8 are a fundamental basis of the bargain, that overjet has set its fees in reliance on the enforceability of these provisions, and that they shall apply notwithstanding that any remedy shall fail its essential purpose.
9.1 Overjet Indemnification. Overjet shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9.2 Customer Indemnification. Customer shall defend, indemnify and hold harmless Overjet and its directors, officers, employees, agents and providers (“Overjet Indemnified Parties”) from and against any Claims to the extent based on any claim that the Customer Data Infringes any third party intellectual property or proprietary right (excluding patents).
9.3 Indemnification Process. As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or Overjet Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
9.4 Exclusions. Overjet’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service (including any use not strictly in accordance with the documentation therefor, Overjet’s instructions, and this Agreement); (b) any modification, alteration or conversion of the Service not created or approved in writing by Overjet; (c) any combination of the Service with any computer, hardware, software or service not provided by Overjet; (d) Overjet’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9.1 above, Overjet may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. Overjet’s obligations in this Section 9 shall be Overjet’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10.1 Definition. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, source code, software, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and Overjet Technology shall be deemed Confidential Information of Overjet, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2 General Obligations. Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10.3 Return or Destruction. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
10.4 Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Overjet with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Overjet shall be free to use, disclose and otherwise exploit in any manner, the Feedback for any purpose.
11.1 Compliance with Laws; Business Associate Agreement. Each Party shall comply with (i) all laws, rules, regulations and ordinances applicable to its activities hereunder, and (ii) the terms and conditions of a duly executed Business Associate Agreement (“BAA”), which BAA upon execution by the Parties shall be incorporated into this Agreement.
11.2 Assignment. Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of Overjet. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, Overjet may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11.3 Entire Agreement; Amendment. This Agreement along with the subscription arrangement chosen by the Customer contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the Parties or this Agreement. This Agreement may be amended or modified only by an express written agreement signed by duly authorized representatives of both Parties.
11.4 Notices. Overjet may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11.5 Force Majeure. Overjet shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Overjet, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
11.6 Publicity. Overjet shall have the right to use Customer’s name and logo on client lists published on Overjet’s website and in marketing materials. Overjet may announce the relationship hereunder in a press release provided that Overjet obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
11.7 Choice of Law. This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11.8 Disputes; Arbitration. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Overjet or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
Customer and Overjet agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Overjet will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) Overjet also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing (i) either Customer or Overjet may bring an individual action in small claims court to the extent eligible, and (ii) either Party may seek emergency equitable relief before the state or federal courts located in Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11.9 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.10 Waiver. No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
11.12 Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.