Welcome to 21dayclub.com, the website and online service of E. Orioli’s Essi Systems, Inc., a corporation organized under the laws of the State of California, (“Essi,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, web site, and software provided on or in connection with the service (collectively the “Service”). By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in Essi’s Privacy Notice, whether or not you are a registered user of our Service. Essi reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. The Service
a. Description of the Service
The Service provides a place for individuals to learn about and assess their stress, resilience and emotional intelligence and provides an opportunity to participate in a voluntary personal assessment and self-improvement program that provides Users with norm tested, statistically reliable assessments of stress, resilience and emotional intelligence.
i. Access Codes
In order to create a User Account (as defined in the sub-section titled Accounts below), you must enter an access code. You may receive an access code from your Organization or you may purchase an access code for the Service directly. Invitation codes may be purchased at www.essisystems.com. When an Organization purchases access codes, it purchases a set quantity of codes. Those codes may then be distributed to that number of individuals. Your use of an access code to subscribe to the Service is entirely voluntary. Some individuals may choose to use the access code provided to them by their Organization, while others may not. Essi does not provide an Organization with the identity of any individual that subscribes to the Service using an Organization’s access code, nor can an Organization access or view the User Content (as defined in the Section titled User Content below) of any User on the Service. Essi will only report to the Organization the number of access codes from the Organization’s originally purchased quantity that: 1) have been activated and 2) remain available for activation. For additional terms related to access codes, including payment terms, please contact: essi@essisystems.com.
ii. Mapping Center
The Mapping Center allows each User to identify and target areas they wish to work on improving. Depending on your subscription level, you may have access to certain features of the Service that offer you the ability to engage in various personal assessments, which include a map questionnaire, scoring grid, and interpretation guide (collectively, a “Map”). You may also elect to share your scoring grid or full results of your Map with another individual by using the Share Results feature accessed from within the Mapping Center.
iii. Team Maps
If an Organization purchased the access code through which you’ve accessed the Service, then you may elect to have the information contained in your Map(s) combined with the information from the Map(s) of other Users who are associated with your Organization to create a Team Map. A “Team Map” is a report that displays, in a manner that does not individually identify any single User, the aggregated results of all Users who have taken a certain Map and elected to participate in the Team Map of their sponsoring Organization. Similar to how a Map allows a User to identify and target areas they wish to work on improving, a Team Map allows an Organization to identify and target areas the Organization wishes to work on improving for the entire set of Users within an Organization or a subset of the Users within an Organization. The User Content required to create a Team Map is aggregated via the Service and the Organization will only receive the final report, which will not identify any individual User as a source of any information contained in the report. A User’s participation in a Team Map is entirely voluntary. An Organization will not know whether or not any specific individual did or did not participate in any Team Map ordered by the Organization. A Team Map can be ordered by an Organization subject to additional terms. Please contact Essi for additional terms applicable to Organizations: essi@essisystems.com.
iv. Change Center
Depending upon your subscription level, the Service also provides behavior change tools that help Users create a “Statement of Commitment,” which is one sentence structured to help your brain and body remember and practice your new behavior for 21 days to create a habit, and track their progress over 21 days to reach their personal habit-changing and/or performance improvement goals. Users may choose a change to help create and maintain habits that improve their stress management skills, build their resilience and develop their emotional intelligence competencies.
v. Alerts and Notifications
As part of your use of the Service, you may receive notifications, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Service by using your account settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
The Service is not a medical or mental health care service. The Service is not intended to be a substitute for professional medical consultation, advice, or treatment from qualified physicians or mental health professionals. If you think that you have a medical or mental health emergency, call your doctor or 911 immediately.
b. License to Use the Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Essi reserves all rights not expressly granted herein in the Service and Essi Content (as defined below). Essi may terminate this license at any time for any reason or no reason.
c. Accounts
i. Eligibility
This is a contract between you and Essi. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Essi, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Essi. When you create an account, you agree to transact electronically through the web-based platform. You agree that your selection of an item, button, icon, or other similar action, constitutes your signature as if actually signed by you in writing. By creating your account, you agree to be bound by the terms of this Agreement. We may update the terms of this Agreement from time to time.
ii. Account Types
An "Account" represents your legal relationship with Essi. A “User Account” represents an individual User’s authorization to log in to and use the Service. An access code is required to create a User Account. Subject to this Agreement, each User retains ultimate administrative control over their User Account and the User Content (as defined in the Section titled User Content below) within it. An “Organizational Account” represents the authorization of a legal entity (an “Organization”) to purchase access codes and Team Maps. Please contact Essi at essi@essisystems.comfor additional terms applicable to an Organization. Your account on the Service gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, and these different accounts may have different functionalities available to them.
iii. Account Controls
1. Users
Subject to this Agreement, you retain ultimate administrative control over your User Account and the User Content (as defined in the Section titled User Content below) within it.
2. Organizations
Please contact Essi for additional terms applicable to Organizations.
iv. Account Rules
You may never use another User’s account. You agree that you will utilize the Service for its intended purpose and not falsify your Personal Information, activity and fitness information or biometric and health information. You are fully and solely responsible for all activity on your account, including any inaccuracies in the information you share. Essi reserves the right to periodically review activity that occurs on the Service in order to safeguard against Service abnormalities and abuse. If the activity relates to your account and indicates there may be an abnormality or abuse, and such abnormal/abusive activity continues after initial communications from us, we reserve the right to make adjustments, suspend or terminate your account. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Essi immediately of any breach of security or unauthorized use of your account. Essi will not be liable for any losses caused by any unauthorized use of your account.
d. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Essi servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Essi grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from https://www.21dayclub.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
e. Service Issues and Interruptions
From time to time, you may encounter a technical or other problem in inputting or retrieving your Personal Information. In order to review and resolve these errors, We may need to access your Personal Information and User account. You agree to make your User account details and Personal Information available to Us to allow Us to diagnose and resolve the problem.
1. User Content
a. Generally
Some areas of the Service allow Users to submit or provide content such as profile information, comments, questions, and other content or information (any such materials a User submits, displays, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content you originate on the Service. The User Content you originate on the Service remains yours; however, by providing or sharing User Content through the Service, you agree to allow Essi and others to view, display, make derivatives of, and/or share your User Content in accordance with your account settings and this Agreement (please reference Sections 3(a) and 3(b) for more details). User Content will never be shared through the Service with an Organization in a manner that identifies any User, individually, as the source of such User Content.
In connection with your User Content, you affirm, represent and warrant the following:
i. Your User Content and Essi’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
ii. Essi may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
iii. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
iv. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
b. User Content License Grant and Ownership
By submitting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Essi a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Essi’s (and its successors’ and affiliates’) business, including without limitation for Essi’s research and analysis purposes, as well as promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. Further, Essi shall have the right to aggregate, analyze and derive de-identified statistical and usage data related to the Services and your User Content (the “Aggregated Data”). Essi will be the owner of all right, title and interest in such Aggregated Data.
3. Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Essi Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Essi and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Essi Content. Use of Essi Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Essi under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Essi does not waive any rights to use similar or related ideas previously known to Essi, or developed by its employees, or obtained from sources other than you.
4. Privacy
For information about our data practices, please see our Privacy Notice, including our Cookie Use statement. By accessing or using the Service, you agree that we can collect and use your information in accordance with the Privacy Notice.
5. Security
Essi cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
6. Termination
This Agreement becomes enforceable once you accept its terms and remains in effect until it is terminated when your account is deleted. You can delete your account, and terminate this Agreement, for any reason at any time, by selecting the “Delete My Account” option from within your Account controls page.
7. Indemnity
You agree to defend, indemnify and hold harmless Essi and its successors, subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
8. Representations and Disclaimers
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ESSI OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ESSI, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE ESSI CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
ESSI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND ESSI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Essi makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESSI, ITS AFFILIATES, SUCCESSORS, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL ESSI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESSI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL ESSI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO ESSI HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ESSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Governing Law, Arbitration, and Class Action / Jury Waiver
a. Governing Law
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Essi, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Alameda County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Alameda County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
b. Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ESSI. For any dispute with Essi, you agree to first Contact Us and attempt to resolve the dispute with us informally. In the unlikely event that Essi has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Alameda County, California, unless you and Essi agree otherwise. As an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Essi from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
c. Class Action / Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ESSI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
11. General
a. Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Essi without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
b. Notification Procedures and Changes to the Agreement
Essi may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Essi in our sole discretion. Essi reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Essi is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Essi may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.
c. Entire Agreement / Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Essi in connection with the Service, shall constitute the entire agreement between you and Essi concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
d. Translations
Please note that any translation of this Agreement is intended solely to facilitate your access to this information. The English version is the only official version of this Agreement and any translation inaccuracies or discrepancies are not binding and have no legal effect for compliance or enforcement purposes.
e. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Essi’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
f. Contact
Please Contact Us with any questions regarding this Agreement.
This Agreement was last modified on June 21, 2020.
