QVASA

TERMS OF USE

Last Updated: March 6, 2024

These Terms of Use (these "Terms") are a legally binding agreement between the party accepting these Terms as set forth in this paragraph ("you") and Qvasa Inc. ("Qvasa") and applies to your access and use of Qvasa's web application and related services (collectively, the "Services"). PLEASE READ THESE TERMS CAREFULLY. WHEN YOU CLICK "INSTALL," INSTALL THE APPLICATION THROUGH THE ZENDESK APP MARKETPLACE, OR OTHERWISE ACCESS OR USE THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

BY AGREEING TO THESE TERMS, EXCEPT FOR (A) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 11, (B) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 11, OR (C) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND QVASA WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL.

These Terms apply to users who access or use the free, generally-accessible version of the Services. You may access or use a paid version of the Services (the "Paid Services") by entering into an order form or other written documentation with Qvasa (an "Order Form"). If you enter into an Order Form, the terms, conditions, guidelines, policies, or rules included in or incorporated by reference into such Order Form ("Supplemental Terms") will govern your access and use of the Services. Such Supplemental Terms become part of your agreement with Qvasa if you use the Paid Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

Qvasa may make changes to these Terms. If Qvasa makes changes, Qvasa may provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or otherwise. Unless Qvasa says otherwise in its notice, the amended Terms will be effective immediately, and your continued use of the Services after Qvasa provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using the Services. Any changes to these Terms will not apply to any dispute between you and Qvasa arising prior to the date on which Qvasa posted the updated Terms incorporating such changes or otherwise notified you of such changes.

• 1. THE SERVICES
  • 1.1 Right to Use. Subject to your compliance with the terms and conditions of these Terms, Qvasa grants you a limited, non-exclusive, revocable right to use the Services solely for your internal business purposes on a device that you own or control. You may not resell, transfer, assign, or sublicense your rights under these Terms to any third party or use the Services to provide services for the benefit of any third party.
  • 1.2 Third-Party Providers. You acknowledge that Qvasa may use the services of third-party contractors, including third-party data centers, cloud providers, and software implementation consultants, in providing the Services (collectively, "Service Providers") and that the Services (including Your Data, as defined below) may be hosted and processed on a network owned and maintained by a Service Provider. The performance of Service Providers is outside Qvasa's control. QVASA WILL NOT BE LIABLE FOR, AND QVASA EXPRESSLY DISCLAIMS, ANY LIABILITY FOR LOSSES, COSTS, OR EXPENSES CAUSED BY ANY SERVICE PROVIDERS.
  • 1.3 Modifications.Notwithstanding anything to the contrary in these Terms, (a) Qvasa may conduct maintenance on the Services from time to time without prior notice to you and (b) Qvasa may modify features of the Services from time to time at Qvasa's sole discretion.
• 2. ELIGIBILITY AND ACCOUNTS
  • 2.1 Authorization.If you use the Services on behalf of another person or entity, (a) all references to "you" throughout these Terms (other than in this Section 2.1(a), (b) and (c)) will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person's or entity's behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us.
  • 2.2 Jurisdiction. You may only use the Services in jurisdictions authorized by Qvasa. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country or (b) on any of the U.S. government lists of restricted end users.
  • 2.3 Use and Sharing. The Services are provided to you only for your internal business use and not for the benefit or use of any third party. Qvasa may enable you to designate authorized individuals ("Authorized Users") to use the Services, and if so, only Authorized Users may use the Services.
  • 2.4 Access Credentials.You must create an account to use our Services. You are responsible for access to your account and use of the Services by any Authorized User, as well as for your account access and use of the Services by any third party through your access credentials, whether authorized or not. You are responsible for implementing security measures to safeguard your access credentials and to prevent use and disclosure by unauthorized third parties. You will promptly notify Qvasa in writing of any unauthorized use of the Services or access credentials that comes to your attention. Neither Qvasa nor any of its Service Providers has any obligation to inquire about the authority of anyone using your personally identifiable information that can be used to identify your account.QVASA WILL NOT BE LIABLE FOR, AND QVASA EXPRESSLY DISCLAIMS, ANY LIABILITY FOR LOSSES, COSTS, OR EXPENSES CAUSED BY ANY UNAUTHORIZED USE OF THE SERVICES THROUGH YOUR ACCOUNT.
  • 2.5 SMS Usage and Consent. Within the Qvasa application, users can opt in to SMS notifications by providing phone numbers. By providing a phone number, either by you or a user of your account, you consent to receive SMS notifications from Qvasa for alerts and other critical notifications. You have the option to opt a phone number out of SMS notifications at any time within the application. Message and data rates may apply. Your account may be rate-limited on the number of SMS notifications it can receive within a given time period. Only add phone numbers that you or members of your account have the right to use and have the right to receive SMS notifications on. Adding phone numbers that you don't have the right to use is a breach of these terms and may result in immediate termination of your account. You may be rate-limited on the number of SMS notifications you can receive within a given time period.
• 3. YOUR OBLIGATIONS
  • 3.1 Restrictions. You agree that the Services contain trade secrets and other valuable proprietary information belonging to Qvasa. You will not, and will ensure that Authorized Users do not: (a) alter, copy, modify, translate, or make derivative works of, or permit the alteration, copying, modification, translation, or making derivative works of, the Services or any component thereof; (b) attempt to derive the source code or object code for the Services, including by reverse engineering, decompiling, disassembling, or similar means; (c) seek to acquire any ownership interest in or to the Services; (d) license, offer, sell, transfer, or lease the Services or attempt any of the foregoing; (e) remove, alter, or obfuscate any copyright, trademark, or other proprietary rights notices included with the Services; (f) access or use the Services in order to design, develop, or build a similar product or competitive product; (g) enable access to the Services by anyone not authorized to use the Services; (h) develop any scripts or software applications that interact with or integrate with the Services unless first authorized in writing by Qvasa; or (i) circumvent or modify any security technologies designed to prevent unauthorized access to the Services. You will not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Qvasa without Qvasa's express written consent. You will not use any meta-tags or any other "hidden text" utilizing any of Qvasa's names, trademarks, or service marks without the express written consent of Qvasa.
  • 3.2 Acceptable Use. You will not use the Services, and will ensure that Authorized Users do not use the Services, to: (a) infringe on, violate, dilute, or misappropriate the intellectual property rights, rights of publicity, privacy rights, or other rights of any person; (b) engage in any fraudulent, unlawful, or abusive activities; (c) store, send, or post defamatory, inflammatory, trade libelous, threatening, abusive, hateful, harassing, obscene, pornographic, or indecent content or data; (d) interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services or Qvasa provision of services to other customers; (e) attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services; or (f) upload or transmit any content that constitutes unsolicited or unauthorized advertising promotional materials, commercial activities, or any other form of solicitation.
• 4. YOUR DATA
  • 4.1 Ownership. You own and retain all right, title, and interest in and to information, data, content, and/or files transmitted, uploaded, or stored in association with your use of the Services, including personal information ("Your Data"), including all intellectual property rights therein. You acknowledge and agree that you (not Qvasa) have control over Your Data stored by operation of the Services.
  • 4.2 Use of Your Data. You hereby grant Qvasa and its affiliates a worldwide, royalty-free, fully paid, transferable, assignable, sublicensable (through multiple tiers), perpetual, and irrevocable license to collect, host, use, access, view, store, copy, display, create derivative works of, delete, and otherwise process Your Data (including, without limitation, providing Your Data to applicable Service Providers and others) to (a) provide, support, monitor, analyze, and improve the Services and improve Qvasa's other products and services, (b) communicate with you about your account, (c) comply with the law and any legal and regulatory requirements, including court orders, subpoenas, and requests or requirements for information made by regulatory or investigatory entities, (d) prevent fraud or misuse of the Services, (e) perform market research, (f) conduct product research and improvement and development of products and services by Qvasa, and/or (g) for any other lawful purpose. Qvasa may expand its use of Your Data in its discretion if not precluded by applicable law. Qvasa will not be required to transmit or provide you or any third party with Your Data in any format except as required by applicable law.
  • 4.3 Rights in Your Data. You represent and warrant to Qvasa that you have the rights, licenses, and permissions necessary to grant the license and use rights in Section 4.2 and to otherwise provide Your Data to Qvasa and allow the collection of Your Data by Qvasa in connection with your use of the Services. You will comply with all applicable local, state, national, and foreign laws in connection with your use of the Services, including those laws related to data privacy and the transmission of personal information. You will be solely responsible for ensuring that any processing of Your Data by Qvasa and/or you via the Services does not violate any applicable laws. You acknowledge that Qvasa exercises no control over the content of Your Data. You will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property rights without first obtaining the permission of the owner of such rights. Without limiting the generality of the foregoing, you will be solely responsible for: (a)ensuring that you and Qvasa, to the extent acting on your behalf, have the right to collect, store, use, process, and share Your Data via the Services; and (b) providing adequate notice to, and obtaining any necessary consents from, any individuals as required under applicable laws with respect to Your Data collected, stored, used, processed, and shared in connection with the Services.
  • 4.4 Compliance with Laws. You will comply with all applicable local, state, national, and foreign laws in connection with your use of the Services. You acknowledge that all system hardware, system software, proprietary data, know-how, or other data or information (herein referred to as "Systems") obtained from Qvasa may be subject to the import and/or export control laws of one or more countries and, accordingly, their import, export, re-export, and transfer may be restricted or prohibited. You agree not to, directly or indirectly, import, export, re-export, transfer, or cause to be imported, exported, re-exported, or transferred, any such Systems to any destination, entity, or persons prohibited or restricted under any law or regulation, unless you have first obtained prior written consent of Qvasa and any applicable governmental entity, either in writing or as provided by applicable regulation, as the same may be amended from time to time.
  • 4.5 Account and Data Deletion. If at any time you decide to discontinue the use of our Services and wish to have your account and associated data deleted, you should contact Qvasa directly at contact@qvasa.com. Upon receiving your request, Qvasa will take reasonable steps to remove your personal information and delete your account in accordance with applicable legal requirements and our data retention policies. Please be aware that the deletion of your data may be irreversible, and Qvasa may retain certain information as required by law or for legitimate business purposes. You acknowledge and agree that Qvasa shall not be liable for any loss of data or information resulting from such deletion.
• 5. INTELLECTUAL PROPERTY RIGHTS
  • 5.1 Ownership by Qvasa. Subject to the use rights granted under these Terms, as between the parties, Qvasa owns and retains all right, title, and interest in and to the Services and any improvements, modifications, enhancements, or derivatives of the foregoing, all work product (including any software) and deliverables created, and all intellectual property rights relating to any of the foregoing. These Terms do not convey to you any rights of ownership in or related to the Services, work product, or deliverables. Except for the rights expressly granted in these Terms, no other rights are granted to you in, to, or under Qvasa's intellectual property rights, whether by implication, estoppel, waiver, or otherwise.
  • 5.2 Usage Data. Notwithstanding anything to the contrary in these Terms, you agree that Qvasa may generate, collect, store, use, transfer, and/or disclose to third parties information gathered, prepared, computed, originated, or stored by Qvasa resulting from the use or provision of the Services, including information derived from or based on Your Data ("Usage Data") (a)to perform data analytics, (b) to monitor, improve, and support the Services, (c) to design, develop, and offer Qvasa products and services, and/or (d) for any other lawful purpose. Qvasa owns and retains all rights to Usage Data, and no rights are granted to you, whether by implication, estoppel, waiver, or otherwise in or to any Usage Data. Qvasa has no obligation to provide or make any Usage Data available to you.
• 6. TERM, TERMINATION, AND SUSPENSION
  • 6.1 Term. The term of these Terms commences on your acceptance of these Terms and, unless either party terminates your access to the Services as set forth in this Section 6, continues until your access to the Services terminates or expires (the "Term").
  • 6.2 Termination for Convenience.Unless otherwise specified in the Order Form, (a) either you or Qvasa may terminate your access to the Services for convenience at any time and (b) you may terminate your access to the Services by notifying Qvasa in writing or by closing your account (and all Authorized User accounts). Qvasa may terminate your access to the Services by notifying you in writing (with email notice being sufficient).
  • 6.3 Termination for Cause. Either you or Qvasa may terminate your access to the Services upon written notice to the other party (a) if such other party commits a material breach of these Terms and fails to cure such breach within 30 days of having received noticed of the breach or (b) immediately if the other party becomes insolvent, makes an assignment for the benefit of its creditors, appoints a receiver for the whole or part of its assets, if there is a filing of voluntary bankruptcy petition by such other party or the filing against such other party of an involuntary bankruptcy petition that is not stayed or dismissed within 60 days, or there is an issuance of any order or the passing of a resolution for the winding-up of such other party's business.
  • 6.4 Suspension of Services. Qvasa may suspend or limit access to the Services at any time: (a) if Qvasa determines or reasonably suspects that you are using the Services in violation of applicable law or in connection with any fraudulent activity; (b)if Qvasa reasonably determines that your use of the Services adversely affects or interferes with the normal operation of the Services or any service to others; (c) if Qvasa is prohibited by an order of a court or other governmental agency from providing the Services; (d) if Qvasa reasonably believes there exists a security incident that threatens the security of the Services, Your Data, or any data of others; or (e) for any other reason in Qvasa's reasonable discretion. QVASA WILL HAVE NO LIABILITY FOR ANY DAMAGES, LIABILITIES, OR LOSSES AS A RESULT OF ANY SUSPENSION OR LIMITATION OF YOUR USE OF THE SERVICES IN ACCORDANCE WITH THIS PARAGRAPH.
  • 6.5 Effect of Expiration or Termination. Upon any expiration or termination of these Terms, all rights granted to you under these Terms and Qvasa's obligations will immediately cease, and you will stop accessing or using the Services, except the following provisions will survive: Sections 3.1 (Restrictions), 4.1 (Ownership), 4.2 (Use of Your Data), 5 (Intellectual Property Rights), 6.5 (Effect of Expiration or Termination), 7 (Confidentiality), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Arbitration), and 12 (General Provisions).
• 7. CONFIDENTIALITY
  • 7.1 Protection. You may be exposed to or receive certain information that is not generally known to the public and is marked as confidential or proprietary, or which, under the circumstances ought to be treated as confidential ("Confidential Information"). You agree that if you are exposed to or receive Confidential Information, you: (a) will protect Confidential Information from unauthorized disclosure using at least a commercially reasonable degree of care; (b) will not disclose Confidential Information to any third party; and (c) will not use the Confidential Information for any purpose.
  • 7.2 Return. After any expiration or termination of these Terms, or at any time upon request from Qvasa, you will immediately return or destroy (at Qvasa's sole direction) all materials or media containing any Confidential Information, including all copies thereof, and will certify in writing to Qvasa that all such Confidential Information has been returned or destroyed.
  • 7.3 Injunctive Relief. You expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 7 and that in such event Qvasa will be entitled to seek and obtain immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
  • 7.4 Feedback. You may from time to time voluntarily provide suggestions, enhancements, recommendations, requests for features or functionality, comments, or other feedback to Qvasa regarding Qvasa and/or the Services ("Feedback"). Feedback, even if designated as "confidential" or "proprietary" by you, will not create any confidentiality or other obligation for Qvasa, and you hereby assign to Qvasa all rights (including intellectual property rights), title and interest in and to such Feedback. All Feedback is Confidential Information.
• 8. INDEMNIFICATION

  You will indemnify and hold Qvasa and its affiliates, and its and their officers, employees, and agents harmless against any damages, liabilities, losses, costs, or expenses (including reasonable attorneys' fees) arising from or in connection with (a) your access to or use of the Services, (b) Your Data, (c) your breach or alleged breach of these Terms, and/or (d) your infringement, misappropriation, or violation of any intellectual property rights, rights of publicity, privacy rights, or other rights of a third party (each, an "Indemnifiable Claim"). Additionally, you will, at Qvasa's sole election, defend Qvasa from any Indemnifiable Claims. If Qvasa directs you to defend an Indemnifiable Claim, then (i) Qvasa has the right to approve the counsel you select to defend the Indemnifiable Claim and (ii) Qvasa may also have its own counsel participate in the defense and settlement of the Indemnifiable Claim at your expense. Qvasa may also exclusively retain control of the defense of an Indemnifiable Claim. You will not settle an Indemnifiable Claim without Qvasa's written consent.

• 9. DISCLAIMERS

  THE SERVICES ARE PROVIDED "AS IS," AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QVASA HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND SERVICE PROVIDERS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR THROUGH A COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. QVASA DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL OPERATE UNINTERRUPTED, BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. QVASA MAKES NO WARRANTY CONCERNING TIMELINESS, ACCURACY, PERFORMANCE, QUALITY, RELIABILITY, OR COMPLETENESS OF ANY INFORMATION OR RESULTS OBTAINED OR DERIVED THROUGH THE USE OF THE SERVICES. QVASA DISCLAIMS ANY LIABILITY FOR UNAUTHORIZED ACCESS, USE, OR RELEASE OF ANY OF YOUR DATA.

• 10. LIMITATION OF LIABILITY

  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL (A) QVASA OR ANY OF ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR PERSONAL INJURY, PROPERTY DAMAGE, ERROR OR INTERRUPTION OF USE, LOSS, INACCURACY, OR CORRUPTION OF DATA, COVER, LOST PROFITS OR REVENUE, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, REGARDLESS OF THE FORM IN WHICH THE ACTION IS BROUGHT (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATING TO THE RELATIONSHIP BETWEEN THE PARTIES (INCLUDING THESE TERMS), INCLUDING THE USE OR INABILITY TO USE THE SERVICES, WHETHER OR NOT QVASA HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, OR (B) QVASA'S TOTAL LIABILITY UNDER THESE TERMS, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, $50. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 10 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT NEITHER PARTY WOULD ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS LIMITATION ON LIABILITY WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH IN THESE TERMS.

• 11. ARBITRATION

  PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND QVASA TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH THE PARTIES CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND QVASA FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND QVASA AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. QVASA AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

  FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

  • 11.1 Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against Qvasa, that Qvasa has against you, or that you have or Qvasa has arising from or relating to these Terms, the Services, or any aspect of the relationship between you and Qvasa as relates to these Terms, the Services, including any privacy or data security claims (collectively, "Claims," and each a "Claim"), you and Qvasa agree to attempt to first resolve the Claim informally via the following process:
    • If you assert a Claim against Qvasa, you will first contact Qvasa by sending a written notice of your Claim ("Claimant Notice") to Qvasa by certified mail addressed to Qvasa Inc., 7621 SW 61^st Ave, South Miami, Florida 33143 or by email to [email address]. The Claimant Notice must (a) include your name, residence address, email address, and telephone number, (b) describe the nature and basis of the Claim, and (c) set forth the specific relief sought.
    • If Qvasa asserts a Claim against you, Qvasa will first contact you by sending a written notice of Qvasa's Claim ("Qvasa Notice"), and each of a Claimant Notice and Qvasa Notice, a "Notice") to you via email to the primary email address associated with your account. The Qvasa Notice must (a) include the name of a Qvasa contact and the contact's email address and telephone number, (b) describe the nature and basis of the Claim, and (c) set forth the specific relief sought.
    • If you and Qvasa cannot reach an agreement to resolve the Claim within thirty (30) days after you or Qvasa receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Qvasa first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
  • 11.2 Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Qvasa, including any disputes in which you or Qvasa seek injunctive or other equitable relief for the alleged unlawful use of your or Qvasa's intellectual property or other infringement of your or Qvasa's intellectual property rights ("IP Claims"), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 11.1 will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
  • 11.3 Federal Arbitration Act.These Terms affect interstate commerce, and the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules (as defined below), 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 the power to determine the question of arbitrability.
  • 11.4 Arbitration Procedure.All Claims must be submitted to the American Arbitration Association (the "AAA") and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA.The then-current version of the AAA's Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA's website (adr.org) (the "AAA Rules"), as amended by these Terms as follows, will apply to any arbitration between you and Qvasa:
    • YOU AND QVASA AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND QVASA ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Qvasa or you by the same or coordinated counsel, 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.
    • Any in-person appearances will be held in Miami, Florida.
    • You and Qvasa agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Qvasa agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
    • The arbitrator's decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against Qvasa for you.
    • The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Qvasa or against you by the same or coordinated counsel or are otherwise coordinated.
      • In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Qvasa understand and agree that when twenty-five (25) or more similar claims are asserted against Qvasa or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Qvasa 's Claim might be delayed.
      • For such coordinated actions, you and Qvasa also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Qvasa shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
      • A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
      • This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
      • The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Qvasa's case is selected for a bellwether process, withdrawn, or otherwise resolved.
      • A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Qvasa or you.
  • 11.5 One Year to Assert Claims. To the extent permitted by law, any Claim by you or Qvasa relating in any way to these Terms, the Services, or any aspect of the relationship between you and Qvasa as relates to these Terms or the Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Qvasa will not have the right to assert the Claim.
  • 11.6 Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing Qvasa with notice of your decision to opt-out via email at [email address] or by certified mail addressed to Qvasa Inc., 7621 SW 61^st Ave, South Miami, Florida 33143.In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 12.9.
  • 11.7 Rejection of Future Arbitration Changes. You may reject any change we make to Section 11 (except address changes) by personally signing and sending Qvasa a notice within 30 days of the change via email at [email address] or by certified mail addressed to Qvasa Inc., 7621 SW 61^st Ave, South Miami, Florida 33143. If you do, the most recent version of Section 11 before the change you rejected will apply.
  • 11.8 Severability. If any portion of this Section 11 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 11 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 11; and (c) to the extent that 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. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 11 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 11 will be enforceable.
  • 11.9 Disputes Outside the United States. Notwithstanding any terms to the contrary in these Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding these Terms either by following the arbitration procedure detailed above in this Section 11 or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
• 12. GENERAL PROVISIONS
  • 12.1 Entire Agreement. These Terms constitute the entire understanding of the parties with respect to their subject matter and supersede all prior or contemporaneous proposals, understandings, and agreements. If you provide Qvasa with any pre-printed terms and conditions that appear on any purchase order or other form document, such terms will be of no force or effect.
  • 12.2 Assignment. You may not assign or transfer these Terms or any of your rights or obligations under it without Qvasa's prior written consent. Qvasa may freely assign these Terms, including to its affiliates. Any attempted assignment in violation of this paragraph will be null and void. Subject to the foregoing, these Terms are binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
  • 12.3 Severability. If a court finds any term of these Terms, other than Section 11, to be invalid or unenforceable, that term will be enforced to the maximum extent permissible so as to reflect the parties' intent, and the remainder of these Terms will remain in full force and effect.
  • 12.4 Waiver. Either party's delay or failure to exercise any right under these Terms or any law does not mean a party waives that right or any other rights under these Terms in the future. No waiver of any provision of these Terms, or any rights or obligations of either party under these Terms, will be effective except pursuant to a written instrument signed by the party against whom the waiver is sought.
  • 12.5 Use of Name and Logo. Notwithstanding any terms to the contrary in this Agreement, you consent to Qvasa's use of your name and logo on Qvasa's website and on Qvasa's promotional and marketing related materials, identifying you as a customer of Qvasa and describing your use of the Services.
  • 12.6 Independent Contractors. Nothing contained in these Terms will be construed to create a joint venture or partnership between the parties. Neither party is authorized as an agent or legal representative of the other party. Neither party will have the right or authority to bind or create any obligation on the other party.
  • 12.7 Force Majeure. Qvasa is excused from performance of these Terms and will not be liable for any delay in whole or in part caused by any event outside of its control.
  • 12.8 No Third-Party Beneficiary. Nothing contained in these Terms will be deemed to create, or be construed as creating, any third-party beneficiary right of action upon any third party in any manner whatsoever.
  • 12.9 Governing Law and Venue. These Terms will be governed in all respects in accordance with the laws of the State of Florida, without regard to conflict of law principles that would cause the laws of any other jurisdiction to apply. Except as set forth in Section 11, you expressly agree that federal and state courts located in Miami, Florida will have exclusive jurisdiction over any action or claim that you bring that arises out of or relating to these Terms. You expressly consent to personal jurisdiction in any such court and hereby irrevocably waive any objection to or claim of lack of jurisdiction or forum non conveniens.
  • 12.10 Interpretation. The headings of these Terms are for reference only and will not be used to interpret the meaning of these Terms. Any reference to "includes" or "including" will be understood to be exemplary and not limiting and followed by "but not limited to." Each party has had the opportunity to review these Terms with legal counsel, and there will be no presumption that ambiguities will be construed or interpreted against the drafter.