Effective Date: December 24, 2014
Thank you for selecting Penmia as your secure notebook in the cloud! Penmia is a solution brought to you by Penmia,
LLC (referred to as "Penmia," "we," or "us") for use by you (also referred to as "user"). Please note that any use of
our websites or our services is subject to your review and agreement with these Terms of Service. This document describes
in detail your rights and our rights relating to our services and constitutes a contract between you and us, so please
review it carefully.
Our services consist of any of our software applications for compatible electronic devices that enable access and use of our services through such devices (the "Penmia Software"), and other products, services and websites hosted or made available by us, which enable you to use our software applications (collectively, the "Service"). In exchange for your use of the Service, you agree to abide by these Terms.
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we'll make reasonable efforts to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We'll announce changes on our applicable sites, and we also may elect to notify you of changes by sending an email to the address you have provided to us. In our sole discretion, we will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the Terms or to stop using our Service by closing your account (see below); your continued use of the Service after the effectiveness of such an update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
First, you need to create an account. You create an account by providing us with an acceptable username and email address, and creating a password (referred to as "Account Information"). We encourage you to use a distinct and non-obvious username and password combination, ideally one that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your Content without your permission, you should immediately change your password and notify firstname.lastname@example.org .
Second, although you may use our Service with only a web browser, in order to use our Service on a variety of computing devices, you'll need to install appropriate software on your computers, tablets and phones. We also have no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service. Obtaining those devices and paying for their connectivity and data plans is solely your responsibility.
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily, or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Penmia Software provided to you by or on behalf of us, for the sole purpose of enabling you to use the Penmia Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Penmia Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Penmia or the Service.
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use, you agree that you are responsible for your conduct and all conduct under your account. This means all content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, "Content") – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with the Penmia Software.
We ask that you respect the Service, Penmia Software, and other users. By using the Service or Penmia Software, you agree that you won't:
- Use the Service or Penmia Software for Anything Illegal – or to Promote Illegal Activities. Don't violate laws or regulations applicable to you. By way of example, don't do things like post instructions on how to assemble bombs; promote harm to any person, group of people (or animals, for that matter), or any governmental or legal entity; or stalk or harass anyone.
- Violate Our Users' Rights. Don't invade another's privacy, and don't use someone's personal data for commercial purposes or in some other manner that violates their rights or applicable laws. This also means you shouldn't upload, post or otherwise transmit any Content that you don't have a right to transmit under any law or under contractual or fiduciary relationships (e.g., inside information, confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
- Annoy or Scam Our Users. Don't upload, post or otherwise transmit any unsolicited or unauthorized advertising or promotional materials. So no spam, no pyramid schemes, and definitely no "I got kidnapped and need you to wire me $1,000" schemes. Don't try to solicit users' passwords or personal information. This also means no engaging in commercial activities within the Service or on our behalf without our prior approval (e.g., displaying a banner designed to profit you or any other business or organization or displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites). And don't use the Service as a forwarding means to another website.
- Violate IP Rights. Don't upload, post or transmit Content that infringes the copyright, trademark or other intellectual property or proprietary rights of another party.
- Mess With Our Service. Don't ruin this for everyone. Don't upload, promote or distribute software viruses or any other kind of computer code, files or programs that attempt to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Don't interfere with our servers or networks connected to the Service. Don't try to disguise the origin of any Content transmitted through the Service. And, unless we have given you prior approval, don't access or attempt to access the Service by any means other than through the interface provided by us (including through the use of scripts, web crawlers or the like).
- Attempt to Copy or Resell Our Service. Don't try to reproduce the Service or the Penmia Software or otherwise try to exploit any part of, use of or access to either. In addition, don't attempt to prevent or impair the full and complete display of advertisements or other messaging within the Service (if any).
- Pretend to Be Someone You Are Not. Don't impersonate anyone, and do not use the Service or the Penmia Software to create a fake identity in violation of any laws to which you are subject.
- Exceed the Scope of Your Authorized Use. Don't access or use features that you don't have a right to use; don't mess around with other users' Content if they haven't given you permission to do so.
- Use Shared or Public Notebooks to Post Objectionable Content. Don't upload, publish or display Content that contains nudity, sexually graphic material or material that is otherwise deemed explicit by us; or that we deem threatening, abusive, harassing, defamatory, libelous, obscene, invasive, hateful or racially, ethnically or otherwise objectionable.
While we hope that all users of the Service and the Penmia Software comply with these guidelines, we must caution you that, notwithstanding the requirements in our Terms, you may be exposed to offensive, indecent or objectionable Content when using the Service or the Penmia Software. We expect that you understand this and, accordingly, you use the Service at your own risk. If you encounter any of the prohibited uses listed above or any other objectionable content, you may contact our Customer Support team.
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. However, you do have to grant us a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, we acknowledge and agree that we do not obtain any right, title or interest from you under these Terms in any of your Content.
What License Do I Grant To Penmia?
In order to operate the Service, we must obtain from you certain license and other rights to the Content you submit so that our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of your Content doesn't infringe applicable copyright and other laws. This means that by using the Service and uploading Content, you grant us a license to display, perform and distribute your Content and to modify (for technical purposes, including but not limited to making sure content is viewable on smart phones as well as computers) and reproduce such Content to enable us to operate the Service. You also agree that we have the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as your Content is stored with us), and include a right for us to make such Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if we determine such access is necessary to comply with our legal obligations.
If you elect to use any third party service or application that is integrated with the Service (as we may offer from time to time), you also agree that the licenses granted to us in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant us the right and license to enable such access to your Content.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to us that you have the unfettered legal rights and authority to submit your Content to us, and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to us and granting us the rights described in these Terms, you are not infringing the rights of any person or third party.
Finally, you understand and agree that we, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Content & Penmia Software.
While you own the Content you store with us, you acknowledge and agree that we (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on our servers and all software deployed by you or a third party to enable clipping of Content originating at another party's web site.
By agreeing to these Terms, you also agree that the rights in the Service and the Penmia Software, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any separate agreement. In particular, you agree 1) not to modify, create derivative works of, decompile or otherwise attempt to extract source code from any Penmia Software, unless you are expressly permitted to do so under an open source license or we give you express written permission, 2) not to use, copy, frame, reproduce, republish, display, post, transmit, modify, or distribute any portion of the Service, including but not limited to related graphics, text, applications, designs, and information unless permitted by these Terms or without our prior written permission, and 3) not to use any trademark, service mark, trade name, logo of the Service for any unauthorized purpose under these Terms.
The Service and the Penmia Software are in private beta version, meaning you can only access with a login account that we provide you and that a lot will likely change in the near future. We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Penmia Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. From time to time, we may restrict access to some parts of or the entirety of either the Service or the Service or the Penmia Software to users, including registered users. We reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature of or your continued ability to access or distribute your Content and other data, and impose other limitations at any time, with or without notice.
As said, this is a beta version and rolling new features might impact the reliability of the Service or the Penmia Software. Therefore, you also acknowledge and understand that a variety of our actions, including but not limited to improvements to the Service, may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that we have no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. If you find that any such modifications or interruption of the Service adversely affects you, we ask that you please contact email@example.com.
Third Party Engagement.
From time to time, we may engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable.
From time to time, as part of the Service and the Penmia Software, we may include computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. We expressly disclaim any warranty or other assurance to you regarding such third party software.
In connection with any modification of the Service, we may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. We will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), we may require you to install the update to continue accessing the Service. In all cases, you agree to permit us to deliver these updates to you (and you to receive them) as part of your use of the Service.
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with the United States Digital Millennium Copyright Act and other applicable laws). If you believe that your intellectual property rights have been violated, please notify firstname.lastname@example.org as shown below so that we may investigate.
Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and we do not accept any obligation to take any particular action to enforce or protect any party's intellectual property rights.
Owners of intellectual property rights that have a good faith belief that Content uploaded into the Service or the Penmia Software infringes their copyright, trademark or other intellectual property rights may notify email@example.com by delivering a written notice with the subject line "IP Rights Violation" to the appropriate address set forth below containing the following information ("Notice of Infringement"):
Identify the specific copyrighted work, trademark or other intellectual property that you believe has been infringed upon and, if you are asserting infringement of an intellectual property right other than copyright, the intellectual property right at issue (for example, trademark or patent);
Identify the Web page URL(s) within the Service containing the copyrighted work or intellectual property that you claim has been infringed and, if possible, the contact information for the person you believe responsible for the infringing act in connection with that that work. Describe the content on the page(s) you believe infringes upon the work identified in item (a) above, including whether the content is a particular image (and describe it in detail) or written work (including the text of the copyrighted work).
Include the statement: "I have a good faith belief that use of the materials described above as allegedly infringing is not authorized by the owner of the intellectual property rights therein, its agent or the law."
Provide your name, mailing address, telephone number and e-mail address.
Provide a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright, trademark or other intellectual property interest that is allegedly infringed.
Provide a signed statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark or other intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
You may also send the Notice of Infringement to us at the following address:
678 Massachusetts Ave., Suite 1002
Cambridge, MA 02139
Please note that we may reproduce any legal notice we receive to send to a third-party for publication and annotation, and we may post your notice in place of any removed Content. We will respond and/or take action on all complete and qualified notices within 48 business hours of receiving your correspondence and reserve the right to communicate with you via email or other means.
Please consider carefully taking an action to initiate a claim, as there are consequences for filing a claim without justification. For example, under United States federal law, you may be liable for any damages, including costs and attorneys’ fees incurred by us or our users if you knowingly materially misrepresent that material or activity is infringing. If you are unsure whether the material you are reporting is in fact infringing, you may wish to contact an attorney before filing a notification with us.
Although we require a Notice of Infringement to be in writing, you may also contact us with any concerns you have or problems you are having sending a Notice by calling 800.779.6765.
The Service is currently only for use in the United States, and our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks owned by us and third parties located in Massachusetts and other locations in the United States and (if applicable) other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
It is our intention to guard any personal information that you submit to us, and we will continue to take commercially reasonable steps to maintain the security of the Service. However, as the open nature of the internet is such that data may flow over networks without security measures and may be accessed and used by people other than those for whom the data is intended, you assume the risk of a third party obtaining that information when you use the Service.
You may close your account with our Service at any time, for any reason (or no reason), without any notice to us. Please follow the instructions located on our FAQs page to close your account, and contact firstname.lastname@example.org if you have any issue doing so.
We may suspend access to your account, or close your account, with or without notice according to these Terms. Our reasons for suspending or closing your account may include, but are not limited to the following: (i) breach or violation of these Terms or any other agreement between you and us, (ii) an extended period of inactivity (determined in our sole discretion), (iii) your nonpayment of any fees or other sums due to us or any other party related to your use of the Service (if any), (iv) the discontinuance or material modification of the Service (or any part thereof), or (vi) unexpected technical or security issues or problems.
In the event we elect to close your account, we will endeavor to provide at least thirty (30) days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on our servers (unless we determine that we are legally prohibited from enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
Our efforts to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or Account Information after you are no longer able to provide them access, you need to implement a process for providing your Account Information to them. We will not provide your Account Information or your Content to anyone, even next of kin, unless we determine that we are legally obligated to do so. We strongly encourage you to include your Account Information, with instructions on how to access your Content, in your will or other estate plans so that anyone you wish to have access to your account will have the means to do so.
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to us through a "Contact Us," user forum, support interface, or through any other mechanism (collectively, "Contributions"), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) we are not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) we shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) we may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of us without any obligation to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from us under any circumstances.
Currently, we do not. However, we may in our sole discretion choose to display advertisements and promotions on or in connection with the Service, some of which may be paid for by third parties. These messages may promote our products and services, demonstrate various uses of our Service, or promote certain third party applications and services that work with ours.
Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including without limitation all reliance upon advertising, all commercial transactions, and legal obligations associated therewith, are solely between you and such advertisers.
We may include or recommend third party resources, materials and developers and/or links to third party websites and applications as part of or in connection with the Service. We have no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold us, our subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service, or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
Available "As Is."
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- (a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PENMIA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- (b) PENMIA DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
- (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PENMIA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PENMIA, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF PENMIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) PENMIA’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE. IN THE EVENT THAT PENMIA, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, OR OUR OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS ARE FOUND LIABLE FOR ANY DAMAGES RELATED TO USE OF THE SERVICE OR THE PENMIA SOFTWARE, YOU AGREE THAT SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT YOU HAVE PAID FOR USE OF THE SERVICE OR THE PENMIA SOFTWARE.
Exclusions and Limitations.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
How Will Notifications Be Sent to Users?
This is a one vital reason that it is important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email, regular mail or postings on the website(s) related to the affected Service, in our sole discretion.
How Can I Send A Notice to Penmia?
Except where these Terms or any separate agreement specifically provide for use of a different means or address for notice, any notice to us must be delivered by email to email@example.com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
678 Massachusetts Ave., Suite 1002
Cambridge, MA 02139
The Service may currently be used only in the United States and, by using the Service or the Penmia Software, you agree to be bound by such restriction. You may not use or otherwise export the Service or any Penmia Software, except as authorized by United States law. In particular, but without limitation, the Penmia Software may not be (i) exported or re-exported into any U.S. embargoed countries, or (ii) provided to or used by anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service in any such country.
These Terms and the relationship between you and us (including any dispute) shall be governed in all respects by the laws of the Commonwealth of Massachusetts, United States of America, as they apply to agreements entered into and to be performed entirely within such jurisdiction between residents of such jurisdiction, without regard to any conflict of law provisions.
If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
Let Us Know About It.
We want to know if you have a problem with the Service or with us, so we encourage you to contact firstname.lastname@example.org if you have any concerns with respect to the operation of the Service or any Penmia Software.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. Penmia provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against us in any other manner, you shall be in violation of these Terms and you agree that we shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse us for reasonable costs incurred in defending against such improperly initiated claim. You agree that, prior to initiating any formal proceedings against us, you will send us a notice to email@example.com and state that you are providing a "Notice of Legal Action" in the subject line. Upon receipt of such notice, we shall attempt to resolve the dispute with you through informal negotiation. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), you agree that any claim or dispute you may have against us must be resolved exclusively by a state or federal court located in Middlesex County, Massachusetts. You agree to submit to the personal jurisdiction of the courts located within Middlesex County, Massachusetts for the purpose of litigating all such claims or disputes.
Alternative Dispute Resolution Process.
Unless you are subject to the Arbitration Agreement set out below, if a claim arises between you and us where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This "Alternative Dispute Resolution Process" shall be initiated by either party sending notice to the other, in which event you and Penmia agree to use reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the "Arbitration Manager") according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Dispute Manager will be borne equally by the parties or be submitted to the Dispute Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Penmia agree that any and all disputes or claims that have arisen or may arise between the parties - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under the rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in Middlesex County, Massachusetts or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Massachusetts, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise.
YOU AND PENMIA AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING (REFERRED TO AS THE "PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS"). UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
Claims Are Time-Barred.
You agree that, regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these Terms must be filed within one (1) year after such claim or cause of action arose. If you fail to file such claim(s) within the applicable time period, you hereby agree to be forever barred from bringing such claim.
There are some remaining points that we need to address.
First, these Terms constitute the entire agreement between you and us and govern your use of the Service, except and then only to the extent that you have entered into a separate agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and us for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that any company affiliated with us shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
Third, we ask you to please acknowledge that the Service and the Penmia Software are in beta and that everything is subject to change, so please direct any issues you may find with the Service or the Penmia Software to firstname.lastname@example.org. We desire to actively encourage our users to publicly talk and write about the Service and the Penmia Software, but we request that you please restrain from publishing full reviews, public tests, screenshots, or anything else that might unfaithfully represent Penmia. Stated plainly, this is not a restriction on your behavior. We trust your judgment and discretion in helping us spread the word about Penmia, and we genuinely want your direct feedback about how we can improve the Service and the Penmia Software.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.