Last Updated: June 17, 2020
Welcome to the Arist Holdings Inc (“Arist”, “we”, or “our”) website located at http://arist.co (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site and our platform accessible via our Site that allows individuals and/or businesses (“Authors”) to create online courses (“Courses”), which will be completed through text messages or such other messaging feature offered by the Services, with individuals and/or businesses that wish to enroll in such Courses (“Learners”). To make these Terms easier to read, the Site and our platform and services are collectively called the “Services”. Subject to your compliance with these Terms, you may register through the Services to be an Author who creates Courses and list and advertise such Courses through the Services or you may use the Services as a Learner.
1. Agreement to Terms. By accessing our Site or using our Services, you are agreeing to be bound by these Terms and all applicable laws. If you do not agree to be bound by these Terms, you are prohibited from using or accessing this Site or the Services. If you are accessing and using the Services on behalf of a company (such as your employer), institution, or other legal entity, you represent and warrant that you have the authority to bind that company, institution, or other legal entity to these Terms. In that case, “you” and “your” will refer to that company, institution, or other legal entity.
3. Changes to these Terms or the Services. We may update these Terms or the Services at any time in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. We are not obligated, however, to update the Courses or related materials made available as part of the Services.
4. Eligibility and Accounts. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Arist, and are not otherwise barred from using the Services under applicable law. If you want to access and use the Services as either an Author, in order to create Courses, or as a Learner, in order to enroll in the Courses, you’ll have to create an account (“Account”). You can do this via the Site or, in the case of Learners, through your account with certain third-party messaging services currently used by Arist in connection with Courses, such as Facebook Messenger or WhatsApp (each, an “SNS Account”). As a Learner, if you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. When you register to be a Learner, as part of the Account setup process, we’ll use the information you provide to us to administer your Account and to recommend certain Public Courses (as defined below) to you that are appropriate and correspond to your indicated interests. When you register to be an Author, as part of the Account setup process, you’ll provide us with certain information such as your name, email address, a description of your skill set with respect to Course subject areas, third party payment processing account information (your “Payment Account”), and any other necessary Account information. We’ll use this information to administer your Account, and for our internal 37354/00100/FW/11437559.4 purposes (including keeping records of Authors’ indicated skill sets). It’s important that you provide us with accurate, complete and current information for your Account and you agree to keep this information accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. To protect your Account, keep the Account details and password confidential and notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5. The Services; Disputes and Release. (a) Generally. Through the Services, we provide a platform enabling Authors to connect with Learners who wish to enroll in Courses created by such Authors. Arist’s role in this process is solely to provide the technology and platform that enables this connection. Enrollment and participation in Courses involves a direct relationship between an Author and a Learner. Arist is not a party to any agreements between Authors and Learners with respect to Courses, and does not have control over and disclaims all liability for the content, quality, timing, legality, failure to provide, or any other aspect whatsoever of any Courses created by Authors. Arist makes no representations about the suitability, reliability, or accuracy of the Courses created by Authors. Notwithstanding the foregoing, Arist serves as the limited authorized agent of Authors for the purpose of accepting payments from Learners on behalf of the Authors and is responsible for transmitting such payments to the Authors. Arist’s responsibilities are limited to: (i) facilitating the availability of the Services; and (ii) serving as the limited agent of each Author as described above. (b) Creating and Classifying Courses. When you register to be an Author, you’ll be able to create Courses and: (i) make them available via Arist’s online library of Courses (the “Course Library”) that Learners may access through the Site (such Courses, collectively, “Public Courses”); or (ii) make them available to Learners by means of your own selected advertising and promotional channels, including third-party websites, social media, or other such channels (collectively, the “Channels”) without making them available on the Course Library (such private Courses, together with the Public Courses, collectively, “Courses”). For the avoidance of doubt, Authors may also promote or advertise their Public Courses through any Channels, in addition to making them available through the Course Library; provided, that all Courses are subject to prior approval by Arist. For each Course you create, you must specify in reasonable detail: (1) the skill set required for a Learner to participate in and complete the Course; (2) instructions sufficient for a Learner with the requisite skill set to participate in and complete the Course; and (3) comply with all rules and guidelines set by Arist with respect to Course creation. Authors have the right, at any time and in their sole discretion, and subject to these Terms, to approve or reject enrollment by a Learner in their Course. You agree to use best efforts to continuously and diligently monitor and supervise Learners’ participation in and completion of the Course (including by responding to Learners’ inquiries). We grant you limited permission to use the Arist name solely to denote the existence of these Terms, in connection with the advertising and promotion of the Course(s) you make available through the Services; provided that we must approve your use of the Arist name in each instance. (c) Relationship of the Parties. Authors are not employees, agents or contractors of Arist, nor are they otherwise in a direct or indirect working or service provider relationship with Arist. You acknowledge that Arist does not, in any way, supervise, direct, or control an Author or such Author’s work created in relation to the Courses. Arist does not set an Author’s work hours or location of work. Arist will not provide an Author with training or any equipment, labor or materials needed for a particular Course. You agree to indemnify, hold harmless and defend Arist from any and all claims by or on behalf of an Author that an Author was misclassified as an independent contractor and/or that the Author maintained an employment relationship of any kind, including, any and all liabilities arising from a determination by a court, arbitrator, government agency or other body that an Author was an Arist employee (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Arist was an employer or joint employer of an Author, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.2 37354/00100/FW/11437559.4 (d) Disputes and Release. Because Arist is not party to any agreement or interactions between Authors and Learners, in the event that you have a dispute with one or more Authors or Learners (as applicable), you agree to address such dispute directly with the Author or Learner (as applicable) in question and you release Arist and our affiliates, officers, directors, agents, investors, subsidiaries, and employees (collectively, “Affiliates”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If a dispute arises between an Author and a Learner in connection with a Course or otherwise under these Terms, Arist may, in its sole discretion, facilitate communications between such Author and Learner in connection with such dispute. If such a dispute is unable to be resolved between such Author and Learner, Arist may, in its sole discretion, intervene in such dispute and take any actions Arist deems appropriate.
6. Payments and Subscriptions. If you are an Author, you agree to pay Arist a fee for use of the Services (or certain portions thereof), depending on the type of subscription (“Subscription”) you select, and you agree to pay such fees. If you are a Learner, you will not be charged any fees by Arist for access and use of the Services. (a) Course Fees. If you are an Author, you may charge one-time, fixed-fees for enrollment in your Course(s). You can determine the fees to be charged for any of your Courses (“Course Fee”) on a fixed-fee basis, subject to your compliance with these Terms and any rules and guidelines Arist may provide to you in connection with creating Courses in determining any such fees, and you may vary the Course Fee for a given Course at any time prior to such Course being made available through any Channels and/or the Course Library. Learners will be able to view Course Fees prior to selecting and enrolling in a Course. For the avoidance of doubt, Arist does not set the Course Fees for any Courses. Course Fees vary based on the particular Course in question. As a Learner, you agree to pay the applicable Course Fee and any associated fees and taxes, if any. (b) Arist Services Fee. If you are an Author, you hereby authorize us to: (i) collect the Course Fee for each Course from Learners on your behalf prior to such Learner’s commencement of each Course; and (ii) retain a percentage of such Course Fee (“Arist Services Fee”). The percentages used to determine the current Arist Services Fee, as well as the date on which such percentages are effective, are accessible at www.arist.co/pricing and Arist may change such percentages at any time, in its sole discretion, which changes will be effective after Arist has provided notice of such changes. Under no circumstances will any payment be due to an Author from Arist where a Learner has not paid for the relevant Course. (c) Timing and Delivery of Payments. For all Course Fees collected from Learners in a given calendar month, Arist will pass funds due to Authors (as applicable) on the last day of the ensuing calendar month (each such date that payment is due, a “Scheduled Payment Date”). If the amounts due to an Author on a Scheduled Payment Date are less than one hundred dollars ($100), then Arist may wait to pay such funds until the next Scheduled Payment Date in which at least one hundred dollars ($100), is due, or at another time to be determined by Arist in its sole discretion. Payments due to Authors will be credited to the Payment Account specified in the applicable Author’s Account profile. All monies provided to Authors will be provided in U.S. Dollars. Authors are solely responsible for all costs incurred by them in using the Services and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes. Arist will only pass funds on to Authors when it has actually collected payment from the applicable Learner. Arist may institute a chargeback policy as it deems appropriate in the event that a Learner or such Learner’s bank does not honor a payment obligation or if Arist questions its ability to collect funds. (d) General. Whether you pay a Course Fee, as a Learner, or purchase a Subscription, as an Author (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third 3 37354/00100/FW/11437559.4 parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States Dollars. Arist has no obligation to provide refunds or credits relating to any Courses, but may do so in Arist’s sole discretion. (e) Subscriptions. If you purchase a Subscription, you will be charged the monthly or annual (as applicable) Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month or year (as applicable) thereafter, at the rate of the then current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE ARIST TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month or year (as applicable) starting from the date of the commencement of your Subscription, using the Payment Information you have provided, until you cancel your Subscription. No less than fourteen (14) days, in the case of a Subscription plan that is charged on a monthly basis, and no less than sixty (60) days, in the case of a Subscription plan that is charged on an annual basis, before your Subscription term ends, or otherwise in accordance with applicable law, Arist will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Arist. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms. (f) Cancelling Course Fee or Subscription. You may cancel a Transaction for a full refund: (i) within five (5) calendar days of your purchase, if you are a Learner provided that you have not already begun the applicable Course; and (ii) within ten (10) calendar days of your initial purchase, if you are an Author. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR COURSE FEE OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, an Author may cancel a Subscription at any time, but please note that cancellation of a Subscription will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to email@example.com. Authors will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If an Author cancels a Subscription, such Author’s right to use the Services will continue until the end of the then-current Subscription period and will then terminate without further charges.
7. Your Content. (a) Posting Content. Our Services may allow you to store or share content that includes, without limitation, text (in posts or communications with others), files, documents, graphics, images, music, software, audio, and video. Anything (other than Feedback) that you post or otherwise make available through the Services, including Course content and materials is referred to as “User Content”. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content. (b) Permission to Your User Content. By making any User Content available through the Services you hereby grant us a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify (for formatting purposes only), distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services.4 37354/00100/FW/11437559.4 (c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. (d) Removal of User Content. You can remove your User Content by specifically deleting it, to the extent feasible and practicable. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. (e) Reservation of Rights. We and our licensors exclusively own all right, title and interest in and to the Services, including all associated patent, copyright, trademark, trade secret, moral rights or other intellectual property rights (“Intellectual Property Rights”). You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. (f) Customer Comments. Upon completing a Course, you have the opportunity to leave feedback and make comments about your experience with the Course and the applicable Author with whom you have interacted (“User Comments”), by filling out the “Rate Service” or “Review Service” form provided to you upon the completion of the Course. We advise you to exercise caution and good judgment when leaving such comments. Once you complete and submit your comments to the Site you will not be able to go back and edit them. You should also be aware that you can be held legally responsible for damage to someone’s reputation if your comments are deemed to be defamatory. We do not monitor or censor comments that are provided by users of the Services and disclaim any and all liability relating thereto. We do reserve the right, however, in our sole discretion, to remove any User Comments that we deem to be inconsistent with the online activities that are permitted under this Agreement. (g) Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
8. Rights in Content Granted by Arist. Subject to your compliance with these Terms, Arist grants you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and view the content available through the Services (the “Content”) solely in connection with your permitted use of the Services.
9. General Prohibitions and Our Enforcement Rights. You agree not to do any of the following: (a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances; (b) Use, display, mirror or frame the Services, or any individual element within the Services, Arist’s name, any Arist trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Arist’s express written consent;5 37354/00100/FW/11437559.4 (c) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Arist or any of Arist’s providers or any other third party (including another user) to protect the Services or Content; (d) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Arist or other generally available third -party web browsers; (e) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (f) Use any meta tags or other hidden text or metadata utilizing an Arist trademark, logo, URL or product name without Arist’s express prior written consent; (g) Use the Services, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms; (h) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source identifying information; (i) Attempt to decipher, decompile, disassemble or reverse engineer any software contained on the Site or otherwise used to provide the Services (j) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (k) Impersonate or misrepresent your affiliation with any person or entity; or (l) Violate any applicable law or regulation. We are not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
10. DMCA/Copyright Policy. We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy, available upon request, for further information.
11. Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We have not reviewed all such third-party websites and resources and provide access only as a convenience, and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. The inclusion of any third-party websites or other resources on the Services does not imply our endorsement of such third-party websites or other resources. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party resources.6 37354/00100/FW/11437559.4
12. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your Account, at our sole discretion, at any time and without notice to you. You may cancel your Account or, if you are a Learner, cease participation in any Course or use of the Services, at any time by sending us an email at firstname.lastname@example.org. Please note that if you don’t or are unable to complete such Course within the period of time set by the Author(s) of such Course, you will be required to re-enroll in such Course and pay any applicable Course Fees in order for you to complete the Course. If Arist terminates your access to and use of the Services for reasons other than your failure to comply with these Terms, Arist will, at its discretion, refund to you any applicable Course Fees, if you are a Learner, or any applicable Subscription Fees, if you are an Author. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 5(a), 5(c), 5(d), 6 (only for payments due and owing to Arist prior to the termination), 7(b), 7(c), 7(e), 7(g), 9, 12, 13, 14, 15, 16, and 17.
13. Warranty; Disclaimers. (a) General. THE SERVICES AND THE COURSES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SERVICES AND THE COURSES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, BUG-FREE, OR DEFECT FREE BASIS. WE MAKE NO WARRANTY CONCERNING THE QUALITY, ACCURACY, LIKELY RESULTS, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF THE USE OF THE INFORMATION OR CONTENT ON THE SERVICES. (b) No Liability for User Conduct. NEITHER ARIST NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE SERVICES. ARIST DOES NOT RECOMMEND ANY PARTICULAR COURSE OR AUTHOR. ARIST DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY AUTHOR’S PROFESSIONAL ACCREDITATION, REGISTRATION, OR LICENSE.
14. Indemnification. You will indemnify and hold us and our Affiliates harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with: (a) your access to or use of the Services; (b) your User Content; or (c) your violation of these Terms.
15. Limitation of Liability. (a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ARIST OR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OR INABILITY TO USE THE SERVICES OR (INCLUDING OTHER USERS OF THE SERVICES WITH WHOM YOU HAVE ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE SERVICES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR OUR SERVICE PROVIDERS HAVE BEEN NOTIFIED, ORALLY OR IN WRITING, OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSES. (b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE7 37354/00100/FW/11437559.4 OF OR INABILITY TO USE THE SERVICES EXCEED: (I) THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO US FOR USE OF THE SERVICES; OR (II) ONE-HUNDRED U.S. DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO US, AS APPLICABLE. (c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ARIST AND YOU.
16. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by and construed in accordance with the laws of the State of Massachusetts, without regard to its conflict of laws provisions. You submit to the exclusive jurisdiction of the state and federal courts located in Norfolk County for all disputes that may arise under or in connection with these Terms.
17. General Terms. (a) Force Majeure. Neither party will be liable in damages or have the right to terminate these Terms for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections. (b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Arist and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Arist and you regarding the Services. (c) Severability. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. (d) Construction. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify these Terms, except as expressly provided in these Terms or as the parties may agree in writing. Failure to promptly enforce a provision of these Terms will not be construed as a waiver of such provision. (e) Interpretation. The headings to Sections of these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect their interpretation. Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise. For purposes of these Terms, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”. (f) No Joint Venture or Partnership. Nothing contained in these Terms will be deemed to create, or be construed as creating, a joint venture, employment, agency, partnership, or other relationship between the parties. (g) Assignment. You may not assign, delegate or otherwise transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. (h) Notices. Any notices or other communications provided by Arist under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. (i) Waiver of Rights. Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective 8 37354/00100/FW/11437559.4 only if in writing and signed by a duly authorized representative of Arist. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
18. Contact Information. If you have any questions about these Terms or the Services, please contact us at email@example.com.