ICON TECHNOLOGY, INC. TERMS OF USE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.
These Terms of Use apply to this site, provided by ICON Technology, Inc. (“ICON,” “Company,” “we,” “us,” or “our”).
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
YOUR CONTINUED USE OF THIS SITE IS SUBJECT TO YOUR CONTINUED COMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THIS SITE.
CONTINUED ACCESS AND USE OF THIS SITE AFTER CHANGES HAVE BEEN MADE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT THEN IN EFFECT. YOU AGREE THAT YOU WILL REVIEW THIS AGREEMENT PERIODICALLY AND THAT YOU SHALL BE BOUND BY THIS AGREEMENT AND ANY MODIFICATIONS TO IT.
This Terms of Use Agreement (the “Agreement”) is a legal agreement exclusively between you and us governing your access to or use of our website or online platform and related applications that link to this Agreement (each a “Site,” and collectively “Sites”). By continuing to use our Site, you agree that such use is legally sufficient consideration under this Agreement.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” IN THIS AGREEMENT WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREMENT, YOU MAY NOT ACCESS OR USE THE SITE.
You may not access or use the Site if you are barred from accessing or using the Site under the laws of your country of residence or any other applicable jurisdiction. By accessing or using the Site, you represent and warrant that you are not barred from accessing or using the Site under the laws of your country of residence or any other applicable jurisdiction.
Last Updated: March 11, 2024
WHAT’S CONTAINED IN THIS AGREEMENT
- Our Intellectual Property Rights
- Your Authorized Use of Our Sites
- Accounts
- Fees and Taxes
- Descriptions, Testimonials, Opinions
- Your Content, Third-Party Content and Links Suggestions
- Updates to this Agreement
- Other Policies
- Changes to the Site
- Important Legal Terms
- Disputes, Arbitration and Class Action Waiver
- Procedure for Making Claims of Copyright Infringement
- California Users and Residents
- Contacting Us
COMPLETE AGREEMENT
OUR INTELLECTUAL PROPERTY RIGHTS
All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Sites (the “Content”) are protected intellectual property of, or used with permission or under license by, ICON. Such Content may be protected by copyright, trademark, patent or other proprietary rights and laws, whether marked or not. This includes the entire Content of each Site, copyrighted and protected as a collective work. All intellectual property rights associated with the Site, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title, or interest in any Content by accessing or using the Site. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any Content available on the Site is strictly prohibited.Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site and its Content for personal, and informational purposes. No Content from the Site may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of the rights owner, except that you may download or print one copy of specific Content or software made available for your downloading or printing for your personal, non-commercial home use, subject to your compliance with this Agreement and retain the same solely for as long as you continue to be permitted to access the Site. To use Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such Content pursuant to any licenses associated with such Content, (3) not copy or post such Content on any networked computer or broadcast it in any media, (4) make no modifications to any such Content, and (5) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Site or the Content.
YOUR AUTHORIZED USE OF OUR SITES
While using the Site, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You may not use the Site for any fraudulent or unlawful purpose, and you may not take any action to interfere with the Site or any other party’s use of the Site. In addition, we expect users of the Site to respect the rights and dignity of others. For example, you may not do any of the following without our consent: Reproduce, duplicate, copy, publicly display, frame, mirror, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site; Upload, post, email, transmit or otherwise make available any Content that: (1) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (2) any applicable law or contractual or fiduciary obligation prohibits you from making available (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (3) infringes any copyright, patent, trademark, trade secret, or other proprietary right of any party; (4) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; or (5) consists of information that you know or have reason to believe is false or inaccurate; Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site, or express or imply that we endorse any statement you make; Violate, or attempt to violate, the security of the Site; Disseminate on the Site any viruses, worms, spyware, adware, or other malicious computer code, file or program that is harmful or invasive or is intended to damage or hijack the operation of, or monitor the use of, any hardware, software or equipment; Reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Site; Build a competitive product or service using the Site, or use the Site to build a product or service using similar ideas, features, functions, or graphics as the Site or determine whether the Site is within the scope of any patent; Interfere in any manner with the operation or hosting of the Site or monitor the availability, performance, or functionality of the Site; Use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the Site or to collect any information from the Site or any other user of the Site; or Assist or permit any persons in violating this Agreement or other applicable laws or rules governing the use of the Sites.Linking: You are granted a limited, non-exclusive right to create text hyperlinks to the Sites for informational purposes, provided such links do not portray us in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking site does not contain any material that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising. Additionally, notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in a Site’s root directory, if such exists, we grant to the operators of public search engines permission to use spiders to copy Content from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such Content, but not caches or archives of such Content. We may revoke these permissions at any time.
ACCOUNTS
Our Site allows you to register for accounts specific to you (“Account”).You are not obligated to register for an Account to access the Site. However, certain sections and features of some of the Sites are available only to users who have registered for an Account (“Registered Users”). You may only have one active Registered User Account on the Site at any given time, and you may not allow other people to use your Account to access the Site.If you are a Registered User, we expect you to accurately maintain and update any information about yourself that you have provided to us. You agree that you are responsible for all activities that occur under your Account and for maintaining the confidentiality of your password and restricting access to your computer so others may not access a Site in violation of this Agreement.You agree to notify us of any unauthorized use of your Registered User username, log-in ID, password or any other breach of security that you become aware of involving or relating to the Site by contacting us as soon as possible. We reserve the right to take any and all actions we deem necessary or reasonable to maintain the security of our Sites and your Account, including without limitation, terminating your Account or requesting information to authorize actions on your Account. WE EXPLICITLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
FEES AND TAXES
You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Site. Some features of the Site are free to use, but fees may apply for subscriptions, premium features and other components. If there is a fee listed for any portion of the Site, by accessing or using that portion, you agree to pay the fee.All amounts payable hereunder by you (if any) are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). You are solely responsible for paying all applicable Taxes, except for any Taxes based upon ICON’s net income. If ICON has the legal obligation to collect any Taxes, you shall reimburse ICON upon invoice by ICON. Taxes, if applicable, are calculated based on the information you provide and the applicable rate at the time of the purchase.
DESCRIPTIONS, TESTIMONIALS, OPINIONS
The Site may contain expert opinions. Information on the Site identified as expert opinion, or accessed from this Site by hyperlink, represents the opinions of these respective experts, which are not necessarily those of ICON. The Site may contain statements written by us but are not a representation or warranty about a product and should not be relied upon as such.Descriptions and graphic representations of products or services on the Site are for informational purposes only and may not completely reflect the current product or services. We reserve the right to change product descriptions at any time, and we are not responsible for variations between a product description and the actual product. Technological issues, such as your device settings, may alter how a product appears on the Site. WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON ANY SITE TO THE MAXIMUM EXTENT ALLOWED BY LAW. CLAIMS CONTAINED IN TESTIMONIALS, BLOGS, DESCRIPTIONS, OR OPINIONS HAVE NOT BEEN SUBSTANTIATED SCIENTIFICALLY.
YOUR CONTENT, THIRD-PARTY CONTENT AND LINKS
You, and not ICON, are entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available through the Site (“Your Content”), and other users of the Site, and not ICON, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Site. Any information, statements, opinions, or other information provided by third parties and made available on our Sites are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, service, offer, statement, or other third-party Content on the Site.ICON does not claim ownership of Your Content. However, you hereby grant ICON and its service providers an irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable (through multiple tiers), transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, and have made Your Content (in any form and any medium, whether now known or later developed) in connection with providing access to and use of the Site. To the extent any of your rights in Your Content are protected as moral rights, droit moral, or other similar rights, you hereby irrevocably and unconditionally waive all enforcement of such rights against ICON and its affiliates and each of their assigns, successors in interest, and licensees.You represent and warrant that: (1) you have obtained all necessary rights and authority to grant the rights set forth in this Agreement with respect to Your Content, including any consents and releases needed from any third parties who appear in Your Content or whose content is used in Your Content; (2) use of Your Content as contemplated herein does not violate any applicable laws or regulations; and (3) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of another party.ICON has no obligation to pre-screen Content, although ICON reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, ICON shall have the right to remove any Content that violates this Agreement.We may provide on the Site, solely as a convenience to users, links to websites, social media pages, mobile applications or other services operated by other entities. If you click these links, you will leave our Site. If you decide to visit any external link, you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked Sites or the information appearing thereon or any of the products or services described thereon. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked Site is authorized to use any of our trademarks, logos or copyright symbols.We may maintain a presence on and link to social media websites, including Facebook, Twitter, YouTube, and Instagram, and others (collectively, “Social Media Pages”), to provide a place for people to learn more about us and our products and services and to share experiences. When you visit these Social Media Pages, you are no longer on our Site, but rather a website operated by a third party. All comments, visuals and other materials posted by visitors to our Social Media Pages do not necessarily reflect our opinions, values or ideas. All visitors to our Social Media Pages must comply with the respective social media platform’s terms of use. YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
SUGGESTIONS
If you elect to provide or make available to ICON any suggestions, comments, ideas, improvements or other feedback relating to the Site (“Suggestions”), you hereby grant ICON an irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable (through multiple tiers), transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
UPDATES TO THIS AGREEMENT
We may revise or otherwise change or update this Agreement from time to time. Please check the “Last Updated” legend at the top of this page to see when this Agreement was last revised. When changes are made to this Agreement, they will become immediately effective when published on this page unless otherwise noted. We encourage you to periodically review this Agreement―there may have been changes to our policies that may affect you. If you do not agree to the Agreement as modified, then you must discontinue your use of our Sites. Your continued use of a Site will signify your continued agreement to this Agreement as revised. We will make reasonable efforts to notify you of material changes to this Agreement.We may assign this Agreement at any time with or without notice to you. You may not assign or sublicense this Agreement or any of your rights or obligations under this Agreement without our prior written consent.
OTHER POLICIES
This Agreement applies exclusively to your access to, and use of, the Site. Additional policies and terms may apply to the use of specific portions of the Site and are included as part of this Agreement whether they reference this Agreement or not. Should we employ you, none of the materials provided on a Site constitute or should be considered part or of an employment contract or an offer for employment.
CHANGES TO THE SITE
ICON reserves the right to modify, suspend or discontinue the Site or any product or service to which it connects, with or without notice, in its sole discretion. ICON shall not be liable to you or any third party for any such modification, suspension or discontinuance.
IMPORTANT LEGAL TERMS
Termination
The Sites and this Agreement are in effect until terminated by you or us. We may terminate this Agreement by notifying you using any contact information we have about you or by posting such termination on a Site, including in your Account. You may terminate this Agreement by providing written notice of termination, including your detailed contact information and any Account information or other Site credentials, to us by using the information in the Contacting Us section. In addition to any right or remedy that may be available to us under applicable law, we may suspend, limit, or terminate all or a portion of your access to a Site or any of its features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. We may be protected for liability from these actions under the Communications Decency Act, 47 U.S.C. § 230.The provisions of this Agreement concerning protection of intellectual property rights, authorized use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.Upon any such termination, (1) you must destroy all Content obtained from the Site and all copies thereof; (2) you will immediately cease all use of and access to the Site; (3) and we may delete your Account at any time. You agree that if your use of the Site is terminated pursuant to this Agreement, you will not attempt to use that Site under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur. Your use of the Site after termination will be a violation of this Section, which survives any termination.To the extent you have made any portion of Your Content accessible to others through the Site, ICON may continue to make that portion of Your Content accessible to others through the Site even after: (1) termination of this Agreement; or (2) you have deleted your account or that portion of Your Content from your account.
Children
Our Sites do not target and are not designed to appeal to minors, and we do not knowingly attempt to solicit or receive any information from children under 13 years of age. YOU MUST BE AT LEAST 13 YEARS OF AGE TO ACCESS AND USE OUR SITES. If you are under the age of majority in your home state, which is 18 years in most states, you may not establish a registered Account with us, and you should use our Sites only with the supervision of a parent or guardian who agrees to be bound by this Agreement.
Disclaimer of Warranty
YOUR USE OF THE SITE IS AT YOUR SOLE RISK. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF THE CONTENT AVAILABLE ON A SITE OR ANY OTHER SITES LINKED TO OR FROM A SITE. THE CONTENT OF A SITE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ICON MAKES NO WARRANTY OR REPRESENTATION THAT: (1) THE SITE WILL MEET YOUR REQUIREMENTS; (2) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SITE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. NO PROFESSIONAL ADVICE OR FIDUCIARY DUTIES. ANY CONTENT YOU OBTAIN FROM OR THROUGH THE SITE SHOULD NOT BE CONSTRUED AS AND IS NOT INTENDED TO BE PROFESSIONAL ADVICE. YOU SHOULD NOT TAKE OR OMIT ANY ACTION IN RELIANCE ON ANY CONTENT OBTAINED FROM OR THROUGH THE SITE. YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY, COMPLETENESS AND RELIABILITY OF ANY CONTENT. BEFORE YOU MAKE ANY ARCHITECTURAL, CONSTRUCTION, FINANCIAL, LEGAL OR OTHER DECISIONS INVOLVING CONTENT, YOU SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FROM AN INDIVIDUAL WHO IS LICENSED AND QUALIFIED IN THE AREA FOR WHICH SUCH ADVICE WOULD BE APPROPRIATE.
Limitation of Liability
WE AND OUR AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, AND SERVICE PROVIDERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR THE INABILITY TO USE THE SITE, THE SITE’S CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA OR PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORSEEABLE. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.
Indemnity
You agree to indemnify, defend and hold us and the Releasees and all of our directors, officers, employees, agents, shareholders, successors, assigns, and contractors harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (1) your breach of any provision of this Agreement; (2) your activities in connection with a Site; or (3) the Content or other information you provide to us through a Site. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Severability
If any provision of this Agreement is held to be invalid or unenforceable, it shall be replaced in interpretation by a valid and enforceable term that most closely aligns with the intent of the original provision. If that is not possible, the provision shall be removed, and the rest of the Agreement will be enforceable.
Disputes, Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. IF, HOWEVER, EITHER THE CLASS ACTION WAIVER OR COORDINATED CLAIMS PROVISION BELOW ARE FOUND INVALID, THEN THE SPECIFIC INVALID PROVISION WILL BE UNENFORCEABLE AND WILL BE SEVERED AND THE REMAINDER OF THE ARBITRATION PROVISIONS WILL REMAIN IN FULL FORCE.
Any dispute, claim or controversy, including those known or unknown that may be later discovered, arising out of or relating to this Agreement, other agreements on the Site, or the Privacy Policy, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be either determined by binding arbitration in Austin, Texas before one arbitrator or submitted to small claims court in Austin, Texas. If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules.
No Class Actions: YOU AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Seeking Arbitration: If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: Legal Department, ICON, 220 E. St. Elmo Rd., Austin, Texas 78745. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com. If you are required to pay a filing fee, after we receive Notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000 or the arbitrator determines the claims are frivolous, in which event you will be responsible for filing fees.
Hearing: If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.
Award: In the event arbitration awards you damages of an amount at least $100 greater than our last documented settlement offer, we will pay your awarded damages or $2,500, whichever is greater.
Injunctive Relief: Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Confidentiality: The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Coordinated Proceedings: If 25 or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals ("Coordinated Claims"), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for ICON shall each select five cases to proceed first in arbitration in a bellwether proceeding ("Test Cases"). The remaining cases shall not be filed in arbitration until the first ten have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against ICON. Individuals bringing Coordinated Claims shall be responsible for up to $250 of their filing fees or the maximum permissible under the applicable arbitration rules. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending. We will take such action, if any, required to effectuate such tolling.
Governing Law and Rules: This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Texas, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
Severance of Arbitration Agreement. If the clauses concerning and describing the procedures and obligations related to Coordinated Claims and Test Case procedures is or becomes invalid or unenforceable, then the remaining entire arbitration agreement and any clauses concerning, relating to, specifying or otherwise describing the arbitration agreement shall be severed from this Agreement. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance.
Procedure for Making Claims of Copyright InfringementIf you believe that your work has been made available through the Site in a way that constitutes copyright infringement, please provide ICON’s Agent for Notice of Copyright Claims the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (3) a description of the material that you claim is infringing and where that material may be accessed within the Site; (4) your address, telephone number and email address; (5) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (6) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
ICON’s Agent for Notice of Copyright Claims can be reached as follows:
ICON
Attn: Agent for Notice of Copyright Claims
220 E. St. Elmo Rd.
Austin, TX 78745
Email: copyright@iconbuild.com
CALIFORNIA USERS AND RESIDENTS
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 such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, by telephone at (800) 952-5210, or as otherwise set forth at www.dca.ca.gov.
CONTACTING US
If you have questions about this Agreement, or if you have technical questions about the operation of a Site, please contact us through this online form or by writing us at Legal Department, ICON, 220 E. St. Elmo Rd., Austin, Texas 78745.