Date of last revision: January 31, 2023
These Terms of Service (“Terms”) govern your access and use of the AllClear ID Health Network and related websites, mobile applications and other products and services (collectively, the “Service”). The Service is made available to you (“you”) by AllClear ID Health, Inc., a Delaware corporation (“AllClear,” “us” or “we”). Unless otherwise defined in the Privacy Policy (“Privacy Policy”), the definitions set forth in these Terms will apply as such terms are used in the Privacy Policy. With respect to the collection, use, disclosure or storage of personally identifiable information, including Protected Health Information as such term is defined in Title 45 C.F.R. Section 106.103, the Privacy Policy will control and, with respect to all other matters, including the collection, use, disclosure or storage of non-personally identifiable information, these Terms will control.
BY CLICKING “I HAVE READ AND AGREE” OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING WITHOUT LIMITATION THE WARRANTY DISCLAIMERS, ARBITRATION PROVISIONS, WAIVER OF JURY TRIAL, WAIVER OF CLASS ACTION, INDEMNITY AND LIMITATION ON LIABILITY PROVISIONS BELOW AND PRIVACY POLICY, WHICH IS HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICE, AND PLEASE EXIT THE SERVICE NOW.
1 ELIGIBILITY.
YOU MUST BE AT LEAST 18 YEARS OLD TO USE THIS SERVICE. YOU ACKNOWLEDGE THAT YOU ARE NOT MISREPRESENTING ANY INFORMATION DURING YOUR ENROLLMENT OR USE OF THE SERVICE, INCLUDING YOUR IDENTITY OR INFORMATION ABOUT YOUR HEALTH DATA OR HEALTH CARE PROVIDERS. YOU HAVE A CONTINUING OBLIGATION TO KEEP YOUR IDENTITY AND CONTACT INFORMATION UP TO DATE AND ACCURATE.
You understand that your right to access is non-transferrable to any other person or entity. Each user must have their own login credentials, which are limited to managing their own health information.
ALLCLEAR DOES NOT KNOWINGLY (A) COLLECT OR SOLICIT PERSONAL INFORMATION FROM ANYONE UNDER 18 YEARS OF AGE OR (B) ALLOW ANYONE UNDER 18 YEARS OF AGE TO INDEPENDENTLY REGISTER FOR THE SERVICE.
2 MODIFICATIONS.
ALLCLEAR MAY, AT ANY TIME AND FROM TIME TO TIME, MODIFY THESE TERMS. ANY CHANGES TO THESE TERMS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE UPDATED VERSION ON THE SERVICE OR OUR WEBSITE. YOU AGREE TO PERIODICALLY REVIEW THESE TERMS, AND YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THESE TERMS AS MODIFIED.
3 Scope.
3.1 AllClear is not a health care provider. The Service does not offer medical advice. The Service should not be used during a medical emergency or for the diagnosis or treatment of any medical condition. Please consult your doctor or other qualified health care provider if you have any questions about a medical condition, or before taking any drug, changing your diet or commencing or discontinuing any course of treatment. Do not ignore or delay obtaining professional medical advice because of information accessed through the Service. AllClear is not recommending or endorsing any specific treatment, physician, healthcare provider, or medication.
Call 911 or your doctor for all medical emergencies. ALL CLEAR IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH THE SERVICE.
3.2 AllClear’s Service provides you with direct access to certain healthcare records your specified healthcare providers retain about you. In connection with providing the Service, AllClear may help provide you with access to your healthcare information, as detailed further in these Terms and including without limitation to:
3.2.1 store your healthcare records obtained directly from your physicians and health care providers via your authorization confidentially in a single repository across various healthcare networks and providers. You acknowledge and agree that AllClear does not originate, edit or otherwise modify the healthcare records obtained from your specified providers. AllClear makes no representations as to the accuracy, timeliness, or completeness of records obtained by your specified providers. AllClear does not assume any responsibility for non-delivery of requested healthcare records from your providers;
3.2.2 assist your doctors, providers or pharmacies with having up to date and accurate and summarized information about you and your medical history so that they can better provide you with clinical diagnoses and treatment. Notwithstanding the foregoing, you acknowledge and agree that AllClear does not itself provide healthcare or clinical services, and is not responsible for any such doctors’, pharmacies’ or other providers’ acts, omissions or for any content of their communications, whether based on the information provided to them via the Service or otherwise;
3.3 You acknowledge and agree that to use the Services, you must authorize your designated healthcare provider via the Health ID mobile app to share copies of your health care records with you through the Health ID mobile app. AllClear will only obtain your healthcare information or make it accessible through its Health ID mobile app where you have authorized a connection for that specified healthcare provider to release your medical records to you through the app. Each authorized connection will be valid for one year, unless otherwise revoked by you in accordance with applicable law.
You acknowledge and agree that AllClear may use your anonymized, de-identified health information for medical research purposes as permitted pursuant to HIPAA in Title 45 C.F.R. Sections 164.501, 164.508, and 164.512(i).
3.5 You acknowledge and agree that AllClear ID is not responsible for any fees (including search fees, duplication fees, reproduction fees or other similar fees) charged by your doctor or healthcare provider for providing copies of your medical records in relation to the Services.
3.6 You understand that you must pass the required identity verification protocols each time you attempt to use the Services.
4 License to Use the Service
4.1 The Service, including without limitation the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by AllClear or its licensors and are protected under both United States and foreign laws. The Service is licensed, not sold, to you. The Service is licensed only for uses expressly permitted under these Terms. Your use of the Service is subject to all restrictions set forth in these Terms. AllClear reserves all rights not expressly granted to you under these Terms. Subject to your complete and ongoing compliance with these Terms, AllClear hereby grants you a personal, limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Service for your private use as an individual consumer and not for any commercial purpose or benefit of any third party unless otherwise expressly permitted herein. Any use of the Service other than as expressly authorized herein is strictly prohibited and will automatically and immediately terminate any and all licenses granted to you under these Terms.
4.2 You acknowledge and agree that we may, from time to time, modify, discontinue, update and otherwise change the Service without notice to you, and that your right to use the Service will be limited to the then-current version of the Service that is offered by AllClear. In addition, we may suspend your access to the Service at any time for any reason or no reason. Termination of your right to use the Service will include the deletion of information in your user account such as your email address, password, and stored medical records. You also have the right to discontinue using the Service at any time. We are not responsible for any loss or harm related to your inability to access or use the Service.
5 Your Responsibilities; Prohibited Uses
5.1 Your Responsibilities. You agree to only provide accurate and complete information during the course of your use of the Service. Without limiting the generality of the foregoing, it is your responsibility to provide us with true, accurate, and complete email address, contact, and other information related to your account(s), and to maintain and promptly update any changes in this information. You are responsible for maintaining the confidentiality and security of your account credentials, and you understand that you may not share this information with anyone else (including immediate family members or representatives) or attempt to access the accounts of any other person. You are fully responsible for all activities that occur under your password or account, whether authorized or unauthorized. You agree to (a) immediately notify AllClear of any unauthorized use of your password or account, and (b) ensure that you properly exit from your account at the end of each session. AllClear shall not be liable for any loss or damage arising from your failure to comply with any of these Terms.
5.2 Prohibited Uses. By using the Service, you agree not to (a) modify, prepare derivative works of, decompile or reverse engineer the Service (except as and only to the extent any foregoing restriction is prohibited by applicable law or regulation); (b) use the Service in a way that abuses or disrupts our networks, user accounts, or the Service; (c) transmit any harassing, indecent, obscene, fraudulent or unlawful material through the Service; (d) market, sell or resell the Service to any third party or otherwise commercially use the Service; (e) use the Service in violation of any applicable laws, regulations or ordinances, including without limitation any laws regarding the export of data or software; (f) use the Service to send unauthorized advertising or spam content; (g) harvest, collect or gather data of other users; (h) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service or features that enforce limitations on use of the Service; (i) transmit any material that infringes, misappropriates or otherwise violates the intellectual property, privacy or other rights of third parties through the Service; (j) use or attempt to use another user’s account without express written authorization from that user and AllClear; (k) impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity; (l) except as expressly permitted by AllClear, copy, reproduce, distribute, publicly perform or publicly display all or portions of the Service; (m) use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Service; (n) remove any proprietary rights, notices or markings in the Service; (o) do anything that might discover source code of the Service or bypass measures employed to prevent or limit access to any part of the Service; (p) develop or use any applications that interact with the Service without our prior written consent; or (q) otherwise use the Service in any manner that violates these Terms.
6 Intellectual Property
6.1 You acknowledge that we or our licensors retain all proprietary right, title and interest in the Service, our name, logo or other marks (together, the “AllClear ID Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the AllClear ID Marks or is similar to any of these.
6.2 All materials available through the Service may be accessed, downloaded, or printed for the user’s own personal, noncommercial purpose and solely within the scope allowable by these Terms except in circumstances specified by federal or local law. No other use of these materials is allowed without express written permission of AllClear.
6.3 Any unauthorized use of the words or images from the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes. The Service includes material that is derived in whole or in part from materials that are copyrighted, including the content, format and layout of the Service. The copyrights are owned by AllClear, or for licensed content, by the content providers.
6.4 None of the names, trademarks, service marks and logos of AllClear appearing on the Service may be used in any advertising, publicity or otherwise to indicate AllClear’s sponsorship of or affiliation with any product or service without express written permission of AllClear. Nothing contained within the Service should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right of use to any trademark displayed on or through the Service without the written permission of AllClear or the third party owner of the trademark, if any. The Service may contain other proprietary notices and copyright information, the terms of which must be observed and followed by you.
7 Your Content
7.1 The Service may enable you to provide information, text, links, graphics, photos, videos or other materials (“Your Content”). We take no responsibility for, and we do not expressly or implicitly endorse any of, Your Content. By submitting Your Content to the Service, you represent and warrant that you have all rights, power and authority necessary to grant the rights to Your Content contained within these Terms. You retain any ownership rights you have in Your Content, but you grant us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable license to use, copy, distribute, perform and display Your Content and any name, username or likeness provided in connection with Your Content to enable your use of the Service. This license includes the right for us to make Your Content available to other companies or organizations who partner with us to enable your use of the Service. You also agree that we may remove metadata associated with Your Content, and you irrevocably waive any claims and assertions of moral rights or attribution with respect to Your Content.
7.2 Although we have no obligation to screen, edit or monitor Your Content, we may, in our sole discretion, delete or remove Your Content at any time and for any reason, including for a violation of these Terms or if you otherwise create liability for us.
7.3 If you use the Service to enter and maintain your personal information, you understand that you are responsible for safeguarding and securing your mobile device and the associated credentials (such as your PIN code needed to access to the Services or device passcodes). If you leave your mobile device unattended, or if it is lost or stolen, you understand that your personal information may be accessible to others. By providing your phone number to AllClear, you expressly consent to AllClear calling or texting you at this phone number—in person or through an automated system.
7.4 You shall not create, post, store or share any content that (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of AllClear or any third party; (d) impersonates or misrepresents your affiliation with any person or entity; (e) contains any unsolicited promotions, political campaigning, advertising or solicitations; (f) contains any private or personal information of a third party without such third party’s consent; (g) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (h) in our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Service, or may expose AllClear or others to any harm or liability of any type.
8 Privacy
Please refer to our Privacy Policy for information about how we collect, use, and share personally identifiable information about individual users of the Service.
9 Feedback
If and to the extent you provide any comments, suggestions, ideas, enhancement requests, recommendations or other feedback in connection with the Service (collectively, “Feedback”), you hereby grant us a royalty-free, irrevocable, perpetual, transferrable, sublicensable license to use and incorporate such Feedback into the Service and to otherwise use such Feedback for any other reason as we see fit without consent, obligation or compensation to you.
10 WARRANTIES; DISCLAIMER
10.1 WARRANTIES. YOU REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY POWER AND LEGAL AUTHORITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR AS A LEGAL GUARDIAN OF SOMEONE ELSE, AND THAT YOU OWN ALL OF THE LEGAL RIGHTS TO THE INFORMATION YOU PROVIDE AND GRANT THE RIGHTS AND LICENSES GRANTED HEREIN; AND ALL INFORMATION THAT YOU PROVIDE TO ALLCLEAR OR ITS EMPLOYEES AND/OR AFFILIATES IS ACCURATE, COMPLETE AND TRUE WHEN PROVIDED.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALLCLEAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ALLCLEAR ID MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, RELIABLE, TIMELY, SECURE OR ERROR FREE. ALLCLEAR WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE TO OBTAIN HEALTH INFORMATION, LOSS OF HEALTH INFORMATION OR PERSONALIZED SETTINGS, OR SERVICE INTERRUPTIONS. WHILE ALLCLEAR ENDEAVORS TO MAKE YOUR USE OF THE SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR SERVERS UPON WHICH THE SERVICE IS HOSTED ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM ALLCLEAR, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. FEATURES AND SPECIFICATIONS OF PRODUCTS OR SERVICES DESCRIBED OR DEPICTED AS PART OF THE SERVICE ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT PRIOR NOTICE. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE.
11 LIMITATION OF LIABILITY
11.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALLCLEAR AND THE OTHER ALLCLEAR PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY, WARRANTY OR OTHERWISE) FOR ANY INDIRECT CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF ALLCLEAR OR THE OTHER ALLCLEAR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 THE TOTAL LIABILITY OF ALLCLEAR AND THE OTHER ALLCLEAR PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO $100.
11.3 THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR ANY MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN LIMITATIONS OR EXCLUSIONS ABOVE MAY NOT APPLY TO YOU.
11.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE ALLCLEAR AND THE OTHER ALLCLEAR PARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING WITHOUT LIMITATION CLAIMS OF NEGLIGENCE) ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USES AND THE ACTS OR OMISSIONS OF THIRD PARTIES. IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
12 Indemnification
To the fullest extent permitted by applicable law, you hereby agree to indemnify, defend and hold harmless AllClear and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “AllClear Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Service; (b) Your Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including without limitation intellectual property rights or privacy rights); or (e) your conduct in connection with the Service. You agree to promptly notify AllClear Parties of any third-party Claims, cooperate with AllClear Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including without limitation attorneys’ fees). You also agree that, at AllClear’s option, the AllClear Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and AllClear or the other AllClear Parties.
13 Security Guarantee
As a user of the Service, you are entitled to the AllClear Security Guarantee to provide identity repair services in the event of identity theft enabled by AllClear’s failure to maintain security of your personal information uploaded to the Service (“Security Guarantee”). The Security Guarantee is not an insurance policy, and AllClear will not make payments or reimbursements to you for any financial loss, liabilities or expenses you incur. The Security Guarantee is available to you while you are enrolled in the Service. Fraud events that were discovered or otherwise occurred prior to your enrollment in the Service are not covered by the Security Guarantee. Notwithstanding anything to the contrary, Security Guarantee coverage does not apply to any expense, damage or loss due to: Any transactions on your financial accounts made by authorized users, even if acting without your knowledge, or any act of theft, deceit, collusion, dishonesty or criminal act by you or any person acting in concert with you, or by any of your authorized representatives, whether acting alone or in collusion with you or others (collectively, your “Misrepresentation”).
AllClear will not pay or be obligated to pay for any costs or expenses other than as described herein, including the fees of any service providers not retained by us. We reserve the right to investigate any asserted claim to determine its validity. AllClear is not a credit repair organization, is not a credit counseling service, and does not promise to help you improve your credit history or rating beyond resolving incidents of fraud. All recipients of the Security Guarantee are expected to always protect their personal information in a reasonable way. Accordingly, recipients will not deliberately or recklessly disclose or publish their Social Security number or any other personal information to those who would reasonably be expected to improperly use or disclose that personal information.
14 Dispute Resolution; Binding Arbitration
PLEASE READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ALLCLEAR AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ALLCLEAR, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
14.1 NO REPRESENTATIVE ACTIONS. YOU AND ALLCLEAR AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE IS PERSONAL TO YOU AND ALLCLEAR AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OR REPRESENTATIVE PROCEEDING.
14.2 ARBITRATION OF DISPUTES. EXCEPT FOR SMALL CLAIMS DISPUTES IN WHICH YOU OR ALLCLEAR SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT LOCATED IN THE COUNTY OF YOUR BILLING ADDRESS OR DISPUTES IN WHICH YOU OR ALLCLEAR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, YOU AND ALLCLEAR EACH WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE. INSTEAD, FOR ANY DISPUTE THAT YOU HAVE AGAINST ALLCLEAR, YOU AGREE TO FIRST CONTACT ALLCLEAR AND RESOLVE THE DISPUTE INFORMALLY BY SENDING WRITTEN NOTICE OF YOUR CLAIM TO ALLCLEAR BY EMAIL AT LEGAL@ALLCLEARID.COM OR BY CERTIFIED MAIL ADDRESSED TO 9600 ESCARPMENT BLVD., SUITE 745, #225, AUSTIN, TX 78749. THE NOTICE MUST (A) INCLUDE YOUR NAME, RESIDENTIAL ADDRESS, EMAIL ADDRESS AND TELEPHONE NUMBER; (B) DESCRIBE THE NATURE AND BASIS OF THE DISPUTE; AND (C) SET FORTH THE SPECIFIC RELIEF SOUGHT. OUR NOTICE TO YOU WILL BE SIMILAR IN FORM TO THAT DESCRIBED ABOVE. IF YOU AND ALLCLEAR CANNOT REACH AN AGREEMENT TO RESOLVE THE DISPUTE WITHIN THIRTY (30) DAYS AFTER SUCH NOTICE IS RECEIVED, THEN EITHER PARTY MAY SUBMIT THE DISPUTE TO BINDING ARBITRATION ADMINISTERED BY JAMS OR, UNDER THE LIMITED EXCEPTIONS EXPRESSLY DESCRIBED IN THESE TERMS, IN COURT. ALL DISPUTES SUBMITTED TO JAMS WILL BE RESOLVED THROUGH CONFIDENTIAL, BINDING ARBITRATION. ARBITRATION PROCEEDINGS WILL BE HELD IN AUSTIN, TEXAS UNLESS AUSTIN, TEXAS AS VENUE IS PROHIBITED UNDER APPLICABLE LAW. YOU AND ALLCLEAR AGREE THAT DISPUTES WILL BE ARBITRATED AND RESOLVED IN ACCORDANCE WITH THE JAMS STREAMLINED ARBITRATION RULES AND PROCEDURES (“JAMS RULES”). THE MOST RECENT VERSION OF THE JAMS RULES ARE ON THE JAMS WEBSITE AND ARE HEREBY INCORPORATED INTO THESE TERMS BY REFERENCE. YOU EITHER ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE JAMS RULES OR WAIVE YOUR OPPORTUNITY TO READ THE JAMS RULES AND WAIVE ANY CLAIM THAT THE JAMS RULES ARE UNFAIR OR SHOULD NOT APPLY FOR ANY REASON.
14.3 YOU AND ALLCLEAR AGREE THAT THESE TERMS AFFECT INTERSTATE COMMERCE AND THAT THE ENFORCEABILITY OF THIS SECTION 14 WILL BE SUBSTANTIVELY AND PROCEDURALLY GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1, ET SEQ. (THE “FAA”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AS LIMITED BY THE FAA, THESE TERMS AND THE JAMS RULES, THE ARBITRATOR WILL HAVE EXCLUSIVE AUTHORITY TO MAKE ALL PROCEDURAL AND SUBSTANTIVE DECISIONS REGARDING ANY DISPUTE AND TO GRANT ANY REMEDY THAT WOULD OTHERWISE BE AVAILABLE IN COURT, INCLUDING WITHOUT LIMITATION THE POWER TO DETERMINE THE QUESTION OF ARBITRABILITY. THE ARBITRATOR MAY CONDUCT ONLY AN INDIVIDUAL ARBITRATION AND MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, PRESIDE OVER ANY TYPE OF CLASS OR REPRESENTATIVE PROCEEDING OR PRESIDE OVER ANY PROCEEDING INVOLVING MORE THAN ONE INDIVIDUAL.
14.4 THE ARBITRATION WILL ALLOW FOR THE DISCOVERY OR EXCHANGE OF NON-PRIVILEGED INFORMATION RELEVANT TO THE DISPUTE. THE ARBITRATOR, ALLCLEAR AND YOU WILL ALL MAINTAIN THE CONFIDENTIALITY OF ANY AND ALL ARBITRATION PROCEEDINGS, JUDGMENTS AND AWARDS, INCLUDING WITHOUT LIMITATION INFORMATION GATHERED, PREPARED AND PRESENTED FOR PURPOSES OF THE ARBITRATION OR RELATED TO THE DISPUTE(S) THEREIN. THE ARBITRATOR WILL HAVE AUTHORITY TO MAKE APPROPRIATE RULINGS TO SAFEGUARD CONFIDENTIALITY, UNLESS APPLICABLE LAW PROVIDES TO THE CONTRARY. THE DUTY OF CONFIDENTIALITY DOES NOT APPLY TO THE EXTENT THAT DISCLOSURE IS NECESSARY TO PREPARE FOR A PRELIMINARY REMEDY OR IN CONNECTION WITH A JUDICIAL CHALLENGE TO AN ARBITRATION AWARD OR ITS ENFORCEMENT, OR TO THE EXTENT THAT DISCLOSURE IS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION.
14.5 YOU AND ALLCLEAR AGREE THAT FOR ANY ARBITRATION YOU INITIATE, YOU WILL PAY THE FILING FEE (UP TO A MAXIMUM OF $250 IF YOU ARE A CONSUMER) AND ALLCLEAR WILL PAY THE REMAINING JAMS FEES AND COSTS. FOR ANY ARBITRATION INITIATED BY ALLCLEAR, ALLCLEAR WILL PAY ALL JAMS FEES AND COSTS. YOU AND ALLCLEAR AGREE THAT THE STATE OF FEDERAL COURTS OF THE STATE OF TEXAS AND THE UNITED STATES SITTING IN AUSTIN, TEXAS HAVE EXCLUSIVE JURISDICTION OVER ANY APPEALS AND THE ENFORCEMENT OF AN ARBITRATION AWARD.
14.6 ANY CLAIM YOU WISH TO ASSERT AGAINST ALLCLEAR OR ANOTHER ALLCLEAR PARTY MUST BE FILED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION UNDERLYING SUCH CLAIM FIRST AROSE; OTHERWISE THE DISPUTE IS PERMANENTLY BARRED, WHICH MEANS THAT YOU WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM IF YOU FAIL TO NOTIFY ALLCLEAR OF THE DISPUTE WITHIN SUCH TIME PERIOD.
14.7 IF ANY PORTION OF THIS SECTION 14 IS FOUND TO BE UNENFORCEABLE OR UNLAWFUL FOR ANY REASON, (A) THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL BE SEVERED FROM THESE TERMS; (B) SEVERANCE OF THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL HAVE NO IMPACT WHATSOEVER ON THE REMAINDER OF THIS SECTION 14 OR THE PARTIES’ ABILITY TO COMPEL ARBITRATION OF ANY REMAINING CLAIMS ON AN INDIVIDUAL BASIS PURSUANT TO THIS SECTION 14; AND (C) TO THE EXTENT ANY CLAIMS MUST THEREFORE PROCEED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS, SUCH CLAIMS MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION AND NOT IN ARBITRATION, AND YOU AGREE THAT LITIGATION OF THOSE CLAIMS SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS IN ARBITRATION. FURTHER, IF ANY PART OF THIS SECTION 14 IS FOUND TO PROHIBIT AN INDIVIDUAL CLAIM SEEKING PUBLIC INJUNCTIVE RELIEF, THAT PROVISION WILL HAVE NO EFFECT TO THE EXTENT SUCH RELIEF IS ALLOWED TO BE SOUGHT OUT OF ARBITRATION, AND THE REMAINDER OF THIS SECTION 14 WILL BE ENFORCEABLE.
15 Governing Law and Jurisdiction
The Service is offered solely in the United States and may be accessed solely from the United States. Except to the extent preempted by United States federal law, any Dispute arising from these Terms or your use of the Service will be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of law rules or principles (whether of Texas or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Texas and the United States, respectively, sitting in Austin, Texas.
16 CLASS ACTION AND JURY TRIAL WAIVER
YOU AND ALLCLEAR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. YOU AGREE THAT, BY USING THE SERVICE AND THEREBY ACCEPTING THESE TERMS, YOU AND ALLCLEAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
17 Compliance with Laws
You may not export or otherwise access or use the Service except as expressly authorized by United States (“U.S.”) law and the laws of the jurisdiction in which the Service is hosted or where you use the Service. In particular, but without limitation, the Service may not be (a) exported or re-exported into any countries that are subject to U.S. economic sanctions or (b) provided to or used by anyone on the U.S. Department of the Treasury’s lists of Foreign Sanctions Evaders or Specially Designated Nationals or the U.S. Department of Commerce Denied Persons, Unverified or Entity lists. 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, or provide access to or use of the Service to anyone, in any such country. In addition, you are responsible for compliance with applicable export control, economic sanctions and related laws when you travel across international borders and access Your Content.
18 Apple Terms
In the event you are using the Service as made available through the Apple App Store in connection with a device manufactured by Apple, Inc. (“Apple”), the following terms of service shall apply:
18.1 Both you and AllClear acknowledge that these Terms are between you and AllClear only, and not with Apple, and that Apple is not responsible for the Service;
18.2 The license granted to you for the Service is limited to a non-transferable license to use the Service on any Apple-branded Products that you own or control, and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions;
18.3 you acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service;
18.4 in the event of a failure to conform to any applicable warranty (if any warranty is available), including those implied by law, you may notify Apple; and Apple will refund the purchase price for the Service to you (if you paid any) and Apple has no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will not be at Apple’s responsibility;
18.5 you acknowledge and agree that AllClear, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Service or your possession and/or use of that Service, including, but not limited to: (1) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under the consumer protection or similar legislation;
18.6 you acknowledge and agree that, in the event of any third-party claim that the Service or your possession, and use of the Service infringes that third party’s intellectual property rights, AllClear, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
18.7 you represent and warrant that you are not located in a region subject to a United States government embargo, or that has been designated by the U.S. government as a “terrorist supporting” region, and that you are not listed on any United States government list of prohibited or restricted parties;
18.8 you acknowledge and agree that, in your use of the Service, you will comply with any and all applicable third-party terms of agreement which may affect or be affected by such use; and
18.9 both you and AllClear acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
19 Google Terms
In the event you are using the Service as made available through the Google Play Store in connection with an Android-powered device:
19.1 You acknowledge that these Terms are between you and us only, and not with Alphabet Inc., Google LLC or any of their subsidiaries or affiliates (collectively, “Google”).
19.2 Your use of the Service must comply with Google’s then-current Google Play Developer Distribution Agreement.
19.3 Google is only a provider of the Google Play Store where you obtained the Service. We, and not Google, are solely responsible for the Service. Google has no obligation or liability to you with respect to the Service or these Terms.
19.4 You will contact AllClear, not Google, concerning any defects or performance issues in the Services.
20 No Waiver.
Enforcement of these Terms is solely at AllClear’s discretion, and AllClear’s failure to enforce a provision of these Terms in a given instance does not constitute a waiver of AllClear’s right to enforce it in other instances.
21 Third-Party Content
AllClear may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Service (collectively, “Third-Party Content”). Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. AllClear does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own sole risk.
22 General
If you have not signed a separate written agreement with AllClear related to the Service, these Terms, along with the Privacy Policy, constitute the entire agreement between you and AllClear related to the Service, replacing any prior agreements. If there is any conflict between these Terms and a signed written agreement between you and AllClear related to the Service, these Terms will control. If any provision of these Terms is determined to be invalid, illegal or unenforceable, the remaining provisions of these Terms remain in full force, provided that the essential portions of these Terms remain valid, binding and enforceable and the economic and legal substance of the transactions contemplated by these Terms are materially preserved. You may not assign, transfer, or delegate any of your rights or obligations under these Terms, without our prior written consent. AllClear may assign, transfer or delegate Our rights and obligations under these Terms of Service, in whole or in part, in Our sole discretion. The United States export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. You agree to abide by these laws and their regulations. Nothing in these Terms creates an agency, partnership, or joint venture. Failure to enforce any provision will not constitute a waiver of that provision.
23 CONTACT US
If You have any questions about this Agreement or otherwise need to contact us for any reason, You can reach us at 9600 Escarpment Blvd., Suite 745, #225, Austin, TX 78749 or at Legal@AllClearid.com.