ANATOMAGE SHARE TERMS OF USE

Welcome to Anatomage Share!

Our website (the “Platform”) is designed to enable healthcare educators, students, and other educators (each, a “User”) to upload and share educational materials, that relate to the Anatomage ecosystem of educational products, such as lecture notes, classroom activities, and Anatomage proprietary preset files. The purpose of which is to facilitate ease of use around the Anatomage ecosystem of educational products and enhance collaboration. The Platform is for EDUCATIONAL USE ONLY. This Terms of Use Agreement (“Terms of Use”) forms a binding agreement between you and Anatomage, Inc., and governs your use of the Platform as a User and the online services enabled via our Platform as well as the services we provide via the Platform (collectively, the “Services”). Please read these Terms of Use carefully.

THIS PLATFORM OF ANATOMAGE, INC. (“ANATOMAGE”, “WE” OR “US”) AND THE INFORMATION ON IT (OTHER THAN THE INFORMATION PROVIDED BY USERS) ARE CONTROLLED BY ANATOMAGE. THESE TERMS OF USE APPLY TO ALL INTERNET USERS VISITING THE PLATFORM BY ACCESS OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM. BY CHECKING ON THE “I HAVE READ AND AGREE TO THE TERMS OF USE” CHECKBOX, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ANATOMAGE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS PLATFORM OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 12 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

PLEASE NOTE THAT The Terms are subject to change by ANATOMAGE in its sole discretion at any time. When changes are made, Anatomage will make a new copy of the Terms of Use available on the Platform and any new Supplemental Terms will be made available from within, or through, the affected Service on the Platform. We will also update the “Last Updated” date at the top of the Terms of Use. Anatomage may require you to provide consent to the updated Terms in a specified manner before further use of the Platform, the Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform and/or the Services. Otherwise, your continued use of the Platform and/or Services constitutes your acceptance of such change(s).

PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.

1. Services.

1.1 Use of Services. Users can use the Platform to share educational materials, that relate to the Anatomage ecosystem of educational products, to enhance usability and collaboration within the ecosystem of products.

2. Use of the Services and Anatomage Properties.

The Platform, the Services, and the information and content available on the Platform and the Services (as these terms are defined herein (collectively, the “Anatomage Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Anatomage grants you a limited license to reproduce portions of Anatomage Properties for the sole purpose of using the Services for your educational purposes. Unless otherwise specified by Anatomage in a separate license, your right to use any and all Anatomage Properties is subject to the Agreement.

2.1. Updates. You understand that Anatomage Properties are evolving. As a result, Anatomage may require you to accept updates to Anatomage Properties. You acknowledge and agree that Anatomage may update Anatomage Properties with or without notifying you. You may need to update third-party software from time to time in order to use Anatomage Properties.

2.2. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Anatomage Properties (including images, text, page layout or form) of Anatomage; (b) you shall not use any metatags or other “hidden text” using Anatomage’s name or trademarks; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform 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); (d) you shall not access Anatomage Properties in order to build a similar or competitive website, application or service; and (e) except as expressly stated herein, no part of Anatomage Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Anatomage Properties shall be subject to the Terms. Anatomage, its suppliers and service providers reserve all rights not granted in the Terms.

3. Registration.

3.1. Registering Your Account. In order to access certain features of Anatomage Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Platform (“Account”).

3.2. Account Eligibility. THE WEBSITE IS NOT AVAILABLE TO: (A) ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE PLATFORM BY ANATOMAGE, OR (B) ANY PERSONS UNDER THE AGE OF 13 WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A LEGAL PARENT OR GUARDIAN (OR, FOR SCHOOL ACCOUNTS, BY SCHOOL PERSONNEL AS PERMITTED UNDER THE TERMS). If you are under the age of 18, you represent that your parent or legal guardian has reviewed and agreed to the Terms on your behalf.

3.3. Registration Data. In registering an Account on the Platform, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) of legal age to form a binding contract; and (2) not a person barred from using Anatomage Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Anatomage immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Anatomage has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Anatomage has the right to suspend or terminate your Account and refuse any and all current or future use of Anatomage Properties (or any portion thereof). You agree not to create an Account or use Anatomage Properties if you have been previously removed by Anatomage, or if you have been previously banned from any of Anatomage Properties.

4. Responsibility for Content.

4.1. Types of Content. You acknowledge that all information, data, materials, photos, videos and other content (“Content”), and Anatomage Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Anatomage, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Anatomage Properties (“Your Content”).

4.2. No Obligation to Pre-Screen Content. You acknowledge that Anatomage has no obligation to pre-screen Content although Anatomage reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. In the event that Anatomage pre-screens, refuses or removes any Content, you acknowledge that Anatomage will do so for Anatomage’s benefit, not yours. Without limiting the foregoing, Anatomage shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

4.3. Storage. Unless expressly agreed to by Anatomage in writing elsewhere or as required by applicable law, Anatomage has no obligation to store any of Your Content.

5. Ownership.

5.1. Anatomage Properties. Except with respect to Your Content, you agree that Anatomage and its suppliers own all rights, title and interest in Anatomage Properties.

5.2. License to Your Content. Subject to any applicable account settings that you select, you grant Anatomage a fully paid, royalty-free, worldwide, non-exclusive and sublicensable right and license to use, reproduce, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing our Services to you. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Anatomage, are responsible for all of Your Content that you Make Available on or in Anatomage Properties.

5.3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Anatomage through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Anatomage has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Anatomage a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Anatomage Properties

6. User Conduct.

6.1. You are responsible for your use of the Services, and for any use of the Services made using your Account. You hereby represent and warrant that Your Content does not violate our Acceptable Use Policy (defined in Section 6.2). Because you alone are responsible for Your Content, you may expose yourself to liability if, for example, Your Content violates the Acceptable Use Policy.

6.2. Acceptable Use Policy.6.2. This Section 6.2 constitutes our Acceptable Use Policy. You agree that you will only Make Available Contents that are professional and created and used in the ordinary course of education, and not for any other purpose. YOU FURTHER AGREE THAT YOU WILL MAKE CONTENT AVAILABLE THAT IS FOR ANATOMAGE PRODUCTS AND SERVICES ONLY. You further agree that when you use the Services, you agree that you will NOT, under any circumstances:

• 6.2.a) 6.2.a) Make Available any Content that, in Anatomage’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; or (vi) harm minors in any way;
• 6.2.b) Impersonate any person or entity, including, but not limited to, Anatomage personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• 6.2.c) Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
• 6.2.d) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
• 6.2.e) Use any Content or the Platform for any commercial use or purpose unless expressly permitted by Anatomage in writing;
• 6.2.f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
• 6.2.g) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
• 6.2.h) Stalk or otherwise harass any other user of the Anatomage Properties; or
• 6.2.i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

7. Interactions with Other Users.

7.1. User Responsibility. You are solely responsible for your interactions with other Users; provided, however, that Anatomage reserves the right, but has no obligation, to intercede in such disputes. You agree that Anatomage will not be responsible for any liability incurred as the result of such interactions.

7.2. Release. You acknowledge that Anatomage merely provides a means for Users to share Contents with other Users, in order to collaborate related to those Contents. Anatomage does not have any control or authority over any Users, and is not responsible for any of their actions and inactions. You hereby release Anatomage and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Anatomage Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor or the released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Anatomage or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.

8. Indemnification.

8. You agree to indemnify and hold Anatomage and its respective parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Anatomage Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Platform or Your Contents, including your failure to obtain any necessary consents or rights in order to grant Anatomage the rights purportedly granted by you herein. Anatomage reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Anatomage in asserting any available defenses. This provision does not require you to indemnify any of the Anatomage Parties for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Anatomage Properties.

9. Disclaimer of Warranties and Conditions.

9.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF Anatomage PROPERTIES IS AT YOUR SOLE RISK, AND Anatomage PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Anatomage PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PLATFORM.

• 9.1.a) Anatomage PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) Anatomage PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF Anatomage PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
• 9.1.b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH Anatomage PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS Anatomage PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
• 9.1.c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Anatomage MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
• 9.1.d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH Anatomage PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
• 9.1.e) FROM TIME TO TIME, Anatomage MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

9.2. No Liability for Conduct of Users. YOU ACKNOWLEDGE AND AGREE THAT Anatomage PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Anatomage PARTIES LIABLE, FOR THE CONDUCT OF USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

10. Limitation of Liability.

10.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Anatomage PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH Anatomage PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT Anatomage HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF Anatomage PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE Anatomage PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH Anatomage PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON Anatomage PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO Anatomage PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

10.2. Cap on Liability. Anatomage is not liable for any incidental, indirect, special, or consequential damages arising out of or in connection with the Services provided by Anatomage, including without limitation loss of use of the any products, including inability to achieve a particular result. Anatomage’s total liability arising out of or in connection with any event or series of connected events occurring in connection with the Services shall not exceed the amount of fees paid for use of the Services. These provisions allocate the risks under use of the Services. Anatomage’s pricing reflects this allocation of risk and the limitation of liability specified herein.

10.3. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Anatomage AND YOU.

11. Term and Termination.

11.1. Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Anatomage Properties, unless terminated earlier in accordance with the Terms.

11.2. Termination of Services by Us. We may terminate and/or suspend the Services, your Account and/or these Terms in the event you breach any terms herein, or if required to do so by applicable law. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.

11.3. Termination of Services by You. If you want to terminate the Services provided by Anatomage, you may do so by executing the Delete Account procedures on the Platform. Alternatively, you can do so by (a) notifying Anatomage at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Anatomage’s address set forth below.

11.4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content, unless we are required to retain a copy of such Content in accordance with applicable law. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Anatomage will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

12. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Anatomage and limits the manner in which you can seek relief from us.

12.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Platform, to any products sold or distributed through the Platform, or to any aspect of your relationship with Anatomage, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Anatomage may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

12.2. Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Anatomage, 3350 Thomas Rd, Suite 150, Santa Clara, California. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

12.3. Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Anatomage. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

12.4. Waiver of Jury Trial.  YOU AND Anatomage HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Anatomage are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

12.5. Waiver of Class or Other Non-Individualized Relief.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in Santa Clara County, California. All other claims shall be arbitrated.

12.6. Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

12.7. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Anatomage.

13. General Provisions.

13.1. Electronic Communications. The communications between you and Anatomage use electronic means, whether you visit Anatomage Properties or send Anatomage e-mails, or whether Anatomage posts notices on Anatomage Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Anatomage in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Anatomage provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

13.2. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Anatomage’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Anatomage may freely assign these Terms including its rights herein, in whole or in part, without your prior consent.

13.3. Force Majeure. Anatomage shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

13.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Anatomage Properties, please contact us at: Anatomage, 3350 Thomas Rd, Suite 150, Santa Clara, California. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

13.5. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Anatomage agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Santa Clara County, California.

13.6. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TermS.

13.7. Notice. Where Anatomage requires that you provide an e-mail address, you are responsible for providing Anatomage with your most current e-mail address. In the event that the last e-mail address you provided to Anatomage is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Anatomage’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Anatomage at the following address: Anatomage, 3350 Thomas Rd, Suite 150, Santa Clara, California. Such notice shall be deemed given when received by Anatomage by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

13.8. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.9. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

13.10. Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

13.11. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.