Welcome to the Genote Platform. Genote is a PaaS service, providing access to Health Music Protocols streamed over the Internet to certain personal computers, mobile handsets, tablets, Internet-connected TV's, computers and other devices capable of connection to the Internet ("Genote ready devices"). You should read and understand the following terms and conditions, as they are the legal contract that governs your use of Genote’s service and content. By accessing Genote's websites, software applications, music, and protocols, you are entering into a binding contract with Genote. Genote provides a selection of music and video content (together, the “Content”) to end users ("Users") primarily by streaming the Content to Users via an Internet connection to Genote's User interface including all features and functionalities, our website and user interfaces, and all content and software associated therewith ("Genote Services"). You become a User of Services and Genote Content by accessing them, listening to them or watching them. You must subscribe to the Genote Services and enter a valid Genote access code ("Access Code") at the appropriate Genote web address and User interface in order to receive and access Content and Genote Services. Learn more about Genote Services by visiting www.genotelab.com.
2. LICENSE, COPYRIGHT, ACCEPTANCE, AND CHANGE OF TERMS.
Genote hereby grants you as a User a limited, non-exclusive, revocable license to use Genote Services and Content for the purposes described in this Agreement and on the terms and conditions set forth herein. Genote grants you a license to make use of the Genote Services and Content subject to the terms of this Agreement including Usage Rules and User Rights. This license and Agreement shall remain in effect as set forth in Section 8. You may not redistribute or transfer the Genote Services or the Content unless you execute a Schedule with Genote as contemplated by Section 7 below. Subject to the rights granted to you under this Agreement, all right, title, and interest in and to the Genote Services, Access Codes, and Content are and shall remain at all times the sole and exclusive property of Genote.
The Genote Service, including all Content included on the Genote website and user interfaces, or delivered to members as part of the service, including music protocols you can watch instantly, text, graphics, logos, designs, photographs, button icons, images, audio/video clips, digital downloads, data compilations, and software, are the property of Genote or its suppliers and are protected by United States and international copyright laws or other intellectual property laws and treaties. The compilation of all content and any software or other materials provided by Genote on our website and user interfaces, or in connection with the Genote Services are the exclusive property of Genote and its licensors and are protected by the copyright and trade secret laws in the territories in which the Genote Services operate and by international treaty provisions. Content shall not be reproduced or used without express written permission from Genote or its suppliers. You agree to adhere to ALL terms, conditions, and restrictions set forth in this Agreement.
The terms of this Agreement govern your use of the Genote Services. By using, visiting, or browsing the Genote Services, you accept and agree to be bound by this Agreement. If you do not agree to the Terms of this Agreement, do not use Genote Services, including our website and user interfaces. The terms of this Agreement are an ongoing contract between you and Genote and apply to your use of the Genote Services as made available. The Agreement defines your rights and you should read it carefully. Different terms, conditions and limitations may apply to the Genote Service available in different jurisdictions.
3. USING GENOTE SERVICES.
Genote is an online subscription service providing enterprises with access to Content streamed over the Internet. We reserve the right in our sole discretion to make changes from time to time and without notice in how we operate our service. Any description of how our service works should not be considered a representation or obligation with respect to how the service will always work. We are constantly making adjustments to our service and often these adjustments are not completely captured within the terms of this Agreement.
Genote’s instant streaming functionality allows you to instantly watch certain music protocols on a video streaming ready device. The availability of content to instantly watch will change from time to time. The quality of the display of the streaming Content may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible usage based data charges. Genote makes no representations or warranties about the quality of your instant watching experience on your display. The time it takes to begin watching instantly will vary based on a number of factors, including your location, available bandwidth at the time, the workout or routine you have selected and the configuration of your Genote ready device. You must be connected to the Internet throughout the watch instantly experience. Device Limitations and System Requirements. To enjoy watching instantly via your personal computer, your equipment must satisfy certain system requirements. The number of devices and concurrent streams may change without notice to you. For certain subscription plans, your available Genote ready device may be limited to personal computers. WE DO NOT WARRANT THE PERFORMANCE OF THIS SOFTWARE, INCLUDING ITS CONTINUING COMPATIBILITY WITH OUR SERVICE. Under certain of our subscription plans, the streaming functionality may be available for watch instantly only on a computer, and not on other Genote ready devices.
Geographic Limitation: If you have a non-U.S. Genote account you will not be able to access the Genote service in the U.S. Genote streaming software.
Unless this Agreement is modified by a Schedule, Access Codes granted to you shall be used solely for your private, non-commercial use. Certain Access Codes will allow a User that is a business entity or organization to use the Genote Services to stream the Content to audio and video systems on that User’s premises, provided that the User shall exercise best efforts to ensure no person shall attempt to copy, record, or reproduce such streamed Content in any manner.
BY USING OUR GENOTE SERVICES, YOU ACKNOWLEDGE AND AGREE (1) TO THE TERMS OF THIS AGREEMENT AS SUCH MAY BE AMENDED OR ADDED TO FROM TIME TO TIME AND (2) TO RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE GENOTE SERVICES AND RELATED THIRD-PARTY SOFTWARE. Except as provided in this Agreement, the following is not permitted for any reason whatsoever: (a) copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Genote Services or the Content, or otherwise making any use of the Genote Services or the Content which is not expressly permitted under this Agreement or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Genote Services or the Content or any part of it; (b) transferring copies of cached Content from an authorized Device to any other Device via any means; (c) reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Genote Services or the Content or any part thereof unless permitted by applicable law; (d) attempting to or actually circumventing any technology Genote employs to protect the Content or the Service; (e) selling, renting, sublicensing or leasing of any part of the Genote Services or the Content; (f) altering, removing or modifying any copyright, trademark, or other intellectual property notices Genote includes with any Content or that is connected with the Genote Services in any way; (g) providing an Access Code granted to any person or entity to any other person or entity; or (h) "crawling” the Genote Services or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Genote.
You must be 18 years of age or older to become a User of the Genote Services. While individuals under the age of 18 may utilize the service, they may do so only with the involvement of a parent or legal guardian, under such parent or legal guardian's account and otherwise subject to the terms of this Agreement. The User who created the Genote account and whose Payment Method is charged is referred to here as the Account Owner. The Account Owner has access and control over the Genote account. The Account Owner's control is exercised through use of the Account Owner's password and therefore to maintain exclusive control, the Account Owner should not reveal the password to anyone. In addition, if the Account Owner wishes to prohibit others from contacting Genote Customer Support and potentially altering the Account Owner's control, the Account Owner should not reveal the last four digits of their credit or debit card associated with their account, or their email address if they use PayPal as their payment method.
By accessing the Genote Services, including the Genote website and User interfaces, you agree to use the Genote Services, features and functionalities associated therewith, the website and User interfaces and all Content and software associated therewith in accordance with all applicable laws, rules and regulations. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Genote Services. You also agree not to interfere with the servers or networks connected to any portions of the Genote Services or Content or to violate any of the procedures, policies or regulations of networks connected to the Genote Services and Content. You also agree not to impersonate any other person while using the Genote Services, conduct yourself in a vulgar or offensive manner while using the Genote Services, or use the Genote Services or Content for any unlawful purpose.
IF YOU DO NOT ACCEPT THE FOREGOING TERMS, DO NOT USE OUR SERVICE. Genote reserves the right to terminate your Access Code or subscription hereunder if Genote, in its sole and absolute discretion, believes that you are in violation of this paragraph, such violations including the Genote software restrictions, copying of music protocols provided to you by Genote, the or the copying or other unauthorized use of our proprietary Content.
4. USER RIGHTS
Genote Services and the Content are licensed, not sold, to you, and Genote retains ownership of all copies of the Genote software applications and Content even after installation on Genote Ready Devices. By using an Access Code, you agree to abide by this agreement including the Usage Rules and not to use the Genote Services, Access Codes, the Content, or any part thereof in any manner not expressly permitted by this Agreement. Except for the rights expressly granted to you in this Agreement, Genote grants no right, title, or interest to you in the Genote software, Service or Content.
5. AVAILABILITY OF SERVICE
Genote will make reasonable efforts to keep the Genote Services and Content available to Users. You acknowledge and agree that certain technical difficulties or maintenance may result in temporary interruptions of Genote Services and access to Content. To the extent permissible under applicable law, Genote reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Genote Services and access to Content, with or without notice, all without liability to any party, except where prohibited by law, for any interruption, modification, or discontinuation of the Genote Services or any function or feature thereof. You understand, agree, and accept that Genote has no obligation to maintain, support, upgrade, or update Genote Services, or to provide all or any specific Content through the Genote Services. This section will be enforced to the extent permissible by applicable law. Genote may, from time to time, remove any Content without notice to the extent permitted by applicable law.
6. GENOTE USER FORUM AND SOCIAL MEDIA
We permit you to post reviews and ratings of music protocols available through the Genote Services. We do not regularly review the content posted on the Genote website; however, we reserve the right to reject, remove or edit such content at anytime without notice. Reviews should not be posted that contain: harsh, profane or discriminatory language; illegal, obscene, threatening, defamatory or otherwise objectionable content; URLs, phone numbers, mailing or e- mail addresses, personal attacks on creative personnel; misleading information regarding the origin of the content; or a discussion of Genote policies or services. Please click on the "Reviews" link that appears on the Genote website for a link to guidelines for writing and posting member reviews. You understand and agree that we may, but are not obligated to, review the content and may delete or remove it (without notice) in our sole and absolute discretion, for any reason or no reason. WHEN YOU HAVE SUBMITTED A REVIEW, WE WILL DISPLAY YOUR RATINGS OF MUSIC PROTCOLS AND YOUR CITY AND STATE LOCATION GIVEN AT SIGN UP. BY SUBMITTING A REVIEW, YOU UNDERSTAND AND AGREE THAT YOU ARE CONSENTING TO THE RELEASE OF ALL INFORMATION PROVIDED IN YOUR REVIEW, INCLUDING YOUR RATING OF GENOTE’S SERVICES AND CONTENT, AND YOUR CITY AND STATE TO A PUBLIC FORUM, INCLUDING OTHER MEMBERS OF, AND VISITORS TO, THE GENOTE SERVICES AND CONTENT. IF YOU DO NOT WANT YOUR REVIEWS, RATINGS, CITY AND STATE TO BE SHARED IN A PUBLIC FORUM, DO NOT USE THE REVIEW FEATURE. YOU ALWAYS HAVE THE OPPORTUNITY TO UPDATE THIS AUTOMATIC PSEUDONYM WITH A PSEUDONYM OF YOUR CHOICE, OR EVEN SUPPLY YOUR REAL NAME, BUT BY DOING SO YOU ARE CHOOSING TO DISCLOSE YOUR IDENTITY IN CONNECTION WITH YOUR REVIEWS AND RATINGS AND OTHER FORMS OF PERSONAL INFORMATION ON OUR WEB SITE. In addition, photos or images that you choose to post to your profile must be owned entirely by you and cannot contain the images of, or owned by, any third party, and cannot be infringing, vulgar, obscene, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable. Like the content of your review itself, you understand and agree that we may, but are not obligated to, review any photos, images or pseudonyms you create and may delete or remove them (without notice) in our sole and absolute discretion, for any reason or no reason. The Reviews feature may change without notice to you and the degrees of associated information sharing and functionality may also change without notice.
You may connect your account to various Social Media outlets. If you choose to connect, you may be able to take advantage of various social features Genote has or will be creating (“Connect” or “Connect Features”). The Connect Features will be designed to share information with others - the essence of social media. For example, your friends and others who have access to view information about you and will be able to see that you're a Genote member. You'll also be able to see similar information from your friends who are connected with Genote. In addition, Genote may personalize and otherwise enhance your experience based on your Social media information, such as your Likes and Interests. Please pay careful attention to your Connect settings in Your Account as well as your Privacy Settings in Facebook, which will impact this feature and give you some control over the information that is shared and with whom it is shared. While we hope that you find the Connect Features to be a great way to share information you may nonetheless disconnect your accounts at anytime.
7. ACCESS CODE USE AND DISTRIBUTION.
You acknowledge that Content may only be accessed through a Genote authorized Access Code. Genote will distribute Access Codes on terms and conditions set by Genote from time to time. Access Codes will be valid for a limited time as determined by Genote at the time Access Codes are made active. In certain circumstances, Genote may enter into a Schedule to this Agreement that allows certain Users designated as User-Distributors (or simply Distributor) to provide Access Codes to individuals affiliated with such Users. The Schedule shall set the terms and conditions on which a User-Distributor is authorized to provide individual users with Access Codes ("User Distributed Access Codes”). All Users that gain access to the Content and Genote Services through a User Distributed Access Code shall be subject to the terms, conditions, limitations, and Usage Rules and User Rights set forth in this Agreement.
8. TERM AND TERMINATION.
The license granted by this Agreement shall commence when you activate any Access Code for the Genote Services or access the Content in any way, and the license shall terminate at such time as the you no longer possesses a valid and active Access Code or Access Codes.
9. SUBSCRIPTION AND BILLING.
You can find the specific details regarding your subscription with Genote at anytime by visiting our website and logging into your account.
By starting your Genote subscription, you are expressly agreeing that Genote is authorized to charge you a monthly subscription fee at the then current rate plus any applicable tax, and any other charges you may incur in connection with your use of the Genote Services to the Payment Method you provided during registration (or to a different Payment Method if you change your account information). Please note that prices and charges are subject to change with notice. As used in this Agreement, "billing" shall indicate either a charge or debit, as applicable, against your Payment Method. The subscription fee will be billed at the beginning of the paying portion of your subscription and each month thereafter unless and until you cancel your subscription. We automatically bill your Payment Method each month on the calendar day corresponding to the commencement of your paying subscription. Subscription charges are fully earned upon payment. In the event your paying subscription began on a day not contained in a given month, we bill your Payment Method on the last day of such month. For example, if you became a paying member on January 31st, your Payment Method would next be billed on February 28th. You acknowledge that the amount billed each month may vary from month to month for reasons that include differing amounts due to promotional offers, differing amounts due to changes in your subscription plan, changes in the amount of applicable sales tax and you authorize us to charge your Payment Method for such varying amounts. If you are eligible, and have signed up for a free trial, your Payment Method will be authorized for up to approximately one month of service; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial portion. We may also periodically authorize your card in anticipation of or subscription related charges. All fees and charges are fully earned upon payment. Payments are nonrefundable and THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. At any time, and for any reason, we may provide a refund, discount, bonus disc or other consideration to some or all of our members ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email. If you want to use a different Payment Method or if there is a change in Payment Method, such as your credit card validity or expiration date, you may edit your Payment Method information by visiting our website. If your Payment Method reaches its expiration date and you do not edit your Payment Method information or cancel your account (see, "Cancellation" below), you authorize us to continue billing that Payment Method and you remain responsible for any uncollected amounts.
11. ONGOING SUBSCRIPTION.
Your Genote subscription will continue in effect unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews each month in order to avoid billing of the next month's subscription fees to your Payment Method. We will bill the monthly subscription fee at the then current rate plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). Subscription fees are fully earned upon payment.
You may cancel your Genote subscription at anytime, and cancellation will be effective immediately. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS. To cancel your subscription, visit our website.
13. WARRANTY AND DISCLAIMER.
GENOTE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GENOTE AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER GENOTE NOR ANY OWNER OF CONTENT WARRANTS THAT THE GENOTE SERVICES ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW. We do not warrant that any of the software used and or licensed in connection with our service will be compatible with other third party software nor do we warrant that operation of our service and the associated software will not damage or disrupt other software or hardware. In addition, Genote ready devices are manufactured and sold by entities other than Genote. A Genote ready device is any electronics equipment that is authorized to decode and capable of decoding Genote Services and Content that Genote transmits over the Internet. These devices may include mobile devices, stand alone set-top boxes, network connected Blu-ray DVD players, Internet-connected HDTVs, and game consoles. WE DO NOT TAKE RESPONSIBILITY OR OTHERWISE WARRANT THE PERFORMANCE OF THESE DEVICES, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE WITH GENOTE SERVICES. By using Genote Services and accessing Content, you agree to look solely to the entity that manufactured and/or sold you the device for any issues related to the device and its compatibility with the Genote Services and Content. In response to requests from Content providers, or due to technical limitations, or for any reason in our sole and absolute discretion, and without prior notice to you, some or all music protocols may not be watched, or may cease to be available for watching instantly, through our service on some Genote ready devices. Any issues related to our service, including any system requirements, are covered and limited by this Agreement.
14. LIMITATION ON RECOVERY.
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE GENOTE SERVICES ARE TO UNINSTALL ANY GENOTE SOFTWARE AND TO STOP USING THE GENOTE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL GENOTE, ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE GENOTE SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER GENOTE HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE GENOTE SERVICE, SHALL BE LIMITED TO NO MORE THAN THE AMOUNTS PAID TO GENOTE DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW. Nothing in the Agreements removes or limits Genote’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law. Limits on arbitration awards shall apply regardless of the nature of the claim.
No remedy conferred on you by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be additional to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
16. FORCE MAJEURE.
If the performance of this Agreement or any obligation hereunder by any party is prevented, restricted, or interfered with by reason of fire or other casualty or accident, acts of God, severe weather conditions, strikes or labor disputes, war or other violence, any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or any other act or condition whatsoever beyond the reasonable control of such party, the party whose performance is so affected, on giving prompt notice to the other party, shall be excused from such performance. In the event such force majeure condition continues for 90 days, then the party whose performance is not affected by such condition may, at its option and without liability to the other party, terminate this Agreement.
f any provision of this Agreement is declared or found to be illegal, unenforceable, or void by a court of competent jurisdiction, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable, or void, it being the intent and agreement of the parties that this Agreement may be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement will not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected will be enforced to the extent permitted by law.
Except as set forth in a Schedule duly executed by Genote, you may not assign or delegate any or all of its rights, obligations, and duties under this Agreement without Genote’s prior written consent, which may be withheld in Genote’s sole discretion. Nothing contained in this Agreement, whether express or implied, is intended to confer on any person or entity other than the parties hereto and their successors-in-interest and permitted assigns, any rights or remedies under or by reason of this Agreement.
This Agreement will inure to the benefit of and be binding on the heirs, legal representatives, successors, and permitted assigns of the parties.
Headings used herein are for reference purposes only and neither limit nor amplify the terms and conditions herein.
21. GOVERNING LAW.
This Agreement will be governed by and construed according to the laws of Utah as such laws are applied to contracts made and to be performed entirely in Utah, but without reference to Utah’s rules regarding conflicts of laws.
22. SURVIVAL OF CERTAIN PROVISIONS.
Termination or expiration of this Agreement for any reason will not release you from the obligations set for in sections 1 through 5, 6, 7, 9, 10, 13, 14, 17, 24, 25, 26, 27, 28, 29 and 30 which shall survive the termination of this Agreement.
23. ENTIRE AGREEMENT.
This Agreement, together with its exhibits, constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein. Except as specifically provided for herein, this Agreement may not be altered, amended, or modified except by an instrument in writing signed by a duly authorized representative of each party.
24. COMPLIANCE WITH LAWS.
You agree to comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act and the rules and regulations pertaining to U.S. export controls, as the same may be amended from time to time. Without in any way limiting the foregoing, (a) You may not export or otherwise remove any Content or from the United States, either directly or indirectly, and (b) you agree that neither it, nor any officer, director, employee, or agent of it (1) will pay or be instructed to pay or give anything of value, either directly or indirectly, to an official of any foreign government or any foreign political party for the purpose of influencing an act or decision in such person’s official capacity, or inducing such person to use such person’s influence with the foreign government in order to assist you in obtaining or retaining business for or with, or directing business to, any person, or (2) are at present or will at any time during the term of this Agreement become an official, officer, or representative of a foreign country.
25. CLASS ACTION WAIVER.
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND GENOTE AGREE THAT
EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and GENOTE agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
26. DISPUTE RESOLUTION, CHOICE OF LAW, VENUE.
Unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, this Agreement (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Utah, without regard to choice or conflicts of law principles. Any controversy or claim between you and Genote shall be submitted to binding arbitration for resolution. The arbitration or other legal proceedings must be conducted in Salt Lake City, Utah. Arbitration is different from proceedings in a court of law. For example, arbitration does not allow for a jury, has limited judicial review, typically there is no right to appeal an arbitration ruling, and there are limited discovery rights in arbitration. YOU HEREBY WAIVE YOUR RIGHTS TO A JURY TRIAL, COURT TRIAL, OR ANY OTHER JUDICIAL PROCEEDING EXCEPT AS NECESSARY TO (1) ENFORCE THE ARBITRATION PROVISIONS OF THIS AGREEMENT OR (2) ENFORCE AN ARBITRATION AWARD.
27. ARBITRATION PROCEDURE.
Any arbitration shall be conducted according to the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Agreement. You agree that the Agreement affects interstate commerce, so the U.S. Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org.
Any arbitration hearings will take place at a location to be agreed upon in Salt Lake City, Utah, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non- appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. Your share of Arbitration fees and arbitrator compensation will be set forth in the AAA’s Consumer Rules. Payment of arbitration fees will be governed by the AAA Rules if an arbitrator finds that either the substance of a claim or the relief sought in an arbitration demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), and in this event, the party making the demand will reimburse all monies Genote previously paid under the AAA Rules.
The arbitrator will issue a written decision with factual and legal findings and conclusions supporting the arbitrator's decision. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Arbitration instituted in connection with a User not located in, not based in, not having offices in, and not doing business in the United States, will be conducted under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules, as modified by this Agreement, and will be administered by the International Court of Arbitration of the ICC. All arbitration demands and proceedings must be conducted in the English language and unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, the law to be applied in any arbitration must be the law of the State of Utah, United States, without regard to choice or conflicts of law principles.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Genote does not have a physical address on file for you, by electronic mail ("Notice"). Any Notice to Genote must be sent to the Genote's administrative office address listed on Genote's web site (www.genotelab.com) as of the date the Notice is given, attention to the Office of General Counsel. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). Genote will attempt in good faith to resolve any claim informally, but if no resolution is reached within 30 days after Genote's receipt of the Notice, either party may commence an arbitration proceeding. Any settlement discussions or offers may not be disclosed to the arbitrator.
In the event a dispute is finally resolved through arbitration in favor of a User, Genote will not be required to pay more than (1) the amount awarded by the arbitrator, if any, (2) the last written settlement amount offered by Genote in settlement of the dispute prior to the arbitrator’s award; or (3) $1,000.00, whichever is greater.
All arbitration proceedings and any documents and information disclosed in the course of the arbitration must be kept strictly confidential by the recipient and must not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of any arbitrator’s award and must not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Neither party to any arbitration may publicize or make any public statement concerning the arbitration or any arbitration award, the existence of a dispute, or the terms of any settlement of a dispute. The filing of documents in a court of law to enforce the agreement to arbitrate or to enforce an arbitration award may be considered a violation of this prohibition on publicity.
In the event that Genote makes any future change to this arbitration provision (other than a change to Genote's address for Notice), you may reject any such change by sending Genote written notice within 30 days of the change to Genote's address for Notice, in which case your account with Genote will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive. If the class action waiver at Section 22 is found to be unenforceable in arbitration or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 23 shall govern any action arising out of or related to the Agreement.
28. NO MEDICAL ADVICE OR TREATMENT IMPLIED/WAIVER OF WARRANTIES.
GENOTE DOES NOT PROVIDE MEDICAL TREATMENT OR ADVICE FOR ANY HEALTH
CONDITION, WHETHER PHYSICAL, EMOTIONAL, OR OTHERWISE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT GENOTE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL TREATMENT OF ANY PHYSICAL, EMOTIONAL OR OTHER CONDITION. GENOTE MUSIC PROTOCOLS ARE NOT GUARANTEED FOR ANY PARTICULAR PURPOSE. YOU EXPRESSLY WAIVE ANY IMPLIED OR EXPRESS WARRANTIES OF FITNESS OF A PARTICULAR PURPOSE OR MERCHANTABILITY. YOU ARE HEREBY ADVISED TO OBTAIN COMPETENT PROFESSIONAL HELP AND ASSISTANCE WITH ANY PHYSICAL, EMOTIONAL, OR OTHER CONDITION. GENOTE WILL NOT BE RESPONSIBLE FOR THE CARE AND TREATMENT OF ANY INDIVIDUAL USER THAT OBTAINS AN ACCESS CODE FROM A DISTRIBUTOR THAT IS A HEALTH PROFESSIONAL OR A HEALTHCARE ENTITY SUCH AS A HOSPITAL, CLINIC, OR HEALTH SYSTEM OF ANY KIND.
29. ASSUMPTION OF THE RISK.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT EVERY PERSON RESPONDS DIFFERENTLY TO THE GENOTE SERVICE, AND IT IS IMPOSSIBLE TO PREDICT WITH ANY DEGREE OF CERTAINTY WHAT EFFECT, IF ANY, THE GENOTE SERVICES WILL HAVE ON YOU. AS SUCH, YOU EXPRESSLY ASSUME THE RISK OF USING THE GENOTE SERVICE. YOU WAIVE ANY AND ALL CLAIMS AGAINST GENOTE, ITS OFFICERS, DIRECTORS, MEMBERS, AGENTS, EMPLOYEES, ATTORNEYS, AND CONTRACTORS, IN CONNECTION WITH OR ARISING OUT OF ANY HEALTH CONDITION, SICKNESS, OR AILMENT OF ANY KIND OR NATURE WHATSOEVER.
30. PRIVACY AND COMMUNICATIONS.