Matician Terms of Service

Matician, Inc.

Terms of Service

Last Updated: April 07, 2023

These Terms of Service (“Terms”) apply to any use of the products and services provided by Matician Inc. and its affiliates (collectively, “Matician,” “we,” or “us”), including our Matic Membership subscription service, Matic robot and charging dock (collectively, the “Matic”), Matic consumable parts, this website and its subdomains (collectively, the “Website”), and mobile applications (the “Mobile App”), and the services and resources available or enabled via the Website or the Mobile App (each, a “Service” and collectively, the “Services”). These Terms, along with all supplemental terms that may be presented to you for your review and acceptance (collectively, the “Agreement”), govern your access to and use of the Services. By clicking on the “I Accept” button, completing the registration process, browsing the Website, placing an order for or reserving a Matic, downloading or using the Mobile App, or otherwise accessing or using any of the Services, you represent that (i) you have read, understand, and agree to be bound by the Agreement, (ii) you are of legal age to form a binding contract with Matician, and (iii) you have the authority to enter into the Agreement. If you do not agree to be bound by the Agreement, you may not access or use any of the Services.

IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL MEMBERSHIP TERM”), THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL MEMBERSHIP TERM AT MATICIAN’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 3.2 BELOW.

PLEASE BE AWARE THAT SECTION 11 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

For information about how we collect, use, disclose, and otherwise process information about you, please refer to our Privacy Policy, which is available at https://matician.com/privacy. If you have any questions, please let our customer support team know at support@matician.com. Please note that any customer support provided over the phone may be recorded for training and quality purposes.

Please note that this Agreement is subject to change by Matician in its sole discretion at any time. When changes are made, Matician will make a copy of the updated Agreement available at the Website and update the “Last Updated” date at the top of these Terms. If we make any material changes to the Agreement, we will provide notice of such material changes on the Website and attempt to notify you by sending an email to the email address provided in your account registration. Any changes to this Agreement will be effective immediately for new users of the Services and will be effective for existing users of the Services upon the earlier of (i) thirty (30) days after the “Last Updated” date at the top of these Terms, or (ii) your consent to and acceptance of the updated Agreement if Matician provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Matician may require before further use of the Services is permitted. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Website to view the then-current Agreement. You agree that Matician’s continued provision of the Services is adequate consideration for the changes in the updated Agreement.

Registering For and Using Your Matic Account
1. Account. To access many of our Services, you must register for an account through the Website or Mobile App (an “Account”). In registering an Account, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the registration form (your “Registration Data”); and (ii) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. You represent that you are (a) at least eighteen (18) years old; (b) of legal age to form a binding contract; and (c) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to notify Matician immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Matician has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Matician has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Matician, or if you have been previously banned from any of the Services.
2. Location of Services. The Services are only available in the United States and you agree not to use the Services elsewhere. We may add or subtract locations from time to time. The availability of Services may vary among locations. You agree that the address in your Account is the exclusive address where you will use the Matic. Before using the Matic at another address, you must update the address connected to your Account.
3. Modifying, Suspending or Terminating Services. We reserve the right to at any time, with or without prior notice, in our sole discretion and for any reason, modify, suspend, terminate, or stop providing all or portions of our Services and/or to require the immediate return of the Matic. Unless otherwise specified by us at the time of cancellation or termination, all licenses granted to you hereunder shall terminate automatically and your right to use the Services shall cease (i) if you delete your Account and you do not have an active Matic Membership, immediately upon such deletion, (ii) if you cancel the Matic Membership, at the end of your final billing period, or (iii) if we terminate the Matic Membership or Account, immediately upon such termination. We are not responsible for any loss or harm related to your inability to access or use our Services.
Reserving a Matic
1. Deposit and Membership Activation. You may be required to place a deposit to reserve the Matic, which will be specified through the Services at the time of reservation (the “Deposit”). We will notify you through the contact information you have provided once a Matic becomes available. In order to activate the Matic Membership (as defined in Section 3.1), you must confirm your membership package type, shipping details, and payment information and make your first membership fee payment (less the amount of your Deposit), including any applicable taxes within the time period specified when we let you know the Matic is available. We will confirm once the Matic Membership is active and subsequently process the Matic for shipment and delivery. If any portion of your Deposit remains after you have made your first membership fee payment (as defined below), the outstanding portion of your Deposit will automatically be applied toward your subsequent membership fees at the time you are billed, up to the amount owed for that billing period, until your Deposit has been used in full. Please note that we cannot guarantee when or if a Matic Membership will become available to you.
2. Deposit Refunds. Your Deposit is fully refundable, and you can cancel the Matic reservation and request refund of your Deposit, by contacting us at support@matician.com at any time before the Matic Membership becomes active. If you do not complete the membership activation process (as described in Section 2.1 above) within the time period specified when we notify you that the Matic is available for shipment (or if no such time period is provided, within fourteen (14) days of receiving such notice), you will be returned to the Matic waiting list. If you have not activated the Matic Membership within three (3) years after placing your Deposit, we may try to automatically refund your Deposit to the payment method you used to make your Deposit.
3. Limitations. Please note that we will fulfill reservations in an order at our sole discretion and may not fulfill your reservation at all. We reserve the right, at any time and for any reason, with or without notice, to refuse to allow you to join our reservation program, to cancel your reservation, or to suspend or terminate your Account. If you cancel the Matic reservation, terminate your Account, or if we terminate or suspend your Account for any reason prior to activation of the Matic Membership, we will refund any Deposit you made to the payment method you used to make the deposit. Any such refund will only be for the amount we received from you and will not include any interest, taxes, or other amounts.
Matic Membership
1. Matic Membership Benefits. A Matic Membership subscription includes the following, each in accordance with the membership package you select through the Services: (i) receipt and use of the Matic, (ii) HEPA bag replacements, (iii) brush roll replacements, (iv) mop roll replacements, (v) access to our support team and coverage for certain covered repairs (as described in Section 4 below), (vi) use of the Mobile App, and (vii) additional gifts, offers, credits, and other benefits we may provide at our discretion ((i)–(vii) collectively, the “Matic Membership”). We may update or change details of the Matic Membership subscription at our sole discretion upon notice to you.
2. Automatic Membership Renewal. Once activated, the Matic Membership will continue indefinitely until terminated in accordance with Section 3.4 below. After your Initial Membership Term, and again after any subsequent membership period, the Matic Membership will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Matician’s then-current price for your membership package. You agree that the Matic Membership will be subject to this automatic renewal feature unless you cancel the Matic Membership prior to the Renewal Commencement Date in accordance with the cancellation procedures set forth in Section 3.4 below.
3. Matic Membership Fees. Your Matic Membership includes enrollment in an ongoing and recurring payment plan. By activating the Matic Membership, you authorize Matician to charge your Payment Provider at the time of activation, and again at the beginning of any subsequent membership period, unless and until you cancel by following the instructions in Section 3.4 below. You will make your first membership fee payment at the time you activate the Matic Membership, but your first billing period will begin on the earliest of (i) the date the Matic is delivered to your designated address, (ii) the date the Matic is paired to your Account, or (iii) thirty (30) days after the Matic is shipped (the “Billing Period Start Date”). The amount of your membership payment and your selected membership package will be displayed via our Services at the time you activate the Matic Membership, along with any other fees or charges immediately due. Your Matic Membership will be a monthly membership plan and you will be billed annually on the same day as your Billing Period Start Date, or if no such date exists, on the last day of the month. Please note that you may cancel your Matic Membership at any time by following the instructions described in Section 3.4 below. You agree to pay, and authorize us to automatically charge, the membership fees and any taxes we determine are applicable to your designated Payment Provider at the start of every new billing period, until the Matic Membership is canceled or terminated in accordance with these Terms. Upon renewal of the Matic Membership, if Matician does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Matician may suspend the benefits of your Matic Membership and continue to attempt to charge your Payment Provider until payment is received or until you return the Matic to Matician in accordance with the instructions provided in Section 3.4 below (upon receipt of payment, the benefits of your Matic Membership will be reactivated).
  
  We reserve the right to change membership fees at any time in our sole discretion upon notice to you. If the amount of your membership fees is going to change (other than a change in taxes), we will notify you of the new amount to be charged and the date of the charge in advance. If you do not want to pay the new membership fees, you must begin the cancellation process at least twenty-four (24) hours before the Renewal Commencement Date and complete the cancellation process described in Section 3.4 below within the Return Window (as defined in Section 3.4 below).If the Matic is not returned within the Return Window, you will be charged the new amount each billing period until you return the Matic.
4. Cancellation. You may request that your Matic Membership be canceled at any time using the “Account” section of our Website or by contacting our support team at support@matician.com. However, please note that cancellation of the Matic Membership is only effective once every Matic sent to you has been returned or picked up by our shipping partner to be returned. If you begin the cancellation process, you will have 30 days from the day you began the process (the “Return Window”) to return any Matic(s) in your possession, and we will postpone charging the applicable membership fee due during the Return Window. If you return the Matic(s) in the Return Window, we will waive such applicable membership fee. If, through no fault of ours or our shipping partners’, at the end of the Return Window the Matic(s) has not been returned, the Matic Membership will remain active, you will be charged the applicable membership fee payment postponed during the Return Window, and you will continue to be charged membership fee payments at the current rate on your existing payment schedule until the Matic(s) has been returned. If the Matic is lost, stolen, or otherwise cannot be returned, you agree you will (i) contact our support team immediately at support@matician.com, and (ii) pay the full replacement cost of the applicable Matic. You must notify us of your intent to cancel the Matic Membership at least twenty-four (24) hours before the end of your current billing period to begin the Return Window; otherwise, you will be charged as scheduled. For clarity, if you fail to return the Matic(s) within the Return Window and complete the membership cancellation process as described above, you will not be eligible to receive an additional Return Window grace period. Once your cancellation has been processed in accordance with the foregoing instructions, we will issue you a refund of any fees you have paid for Services not yet rendered as of the cancellation effective date, prorated on a monthly basis, less any outstanding charges (including but not limited to damage to the Matic beyond normal wear and tear). Such refund will be issued to the payment method you used to pay the applicable refundable fees.
Payment
1. Payment Method. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You must provide Matician with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or a Google Pay or Apple Pay account (each, a “Payment Provider”) as a condition to being placed on the waiting list for a Matic or subscribing to a Matic Membership. Your agreement with the applicable Payment Provider governs your use of your designated payment method, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Matician with a Payment Provider and associated payment information, you agree that Matician is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Matician of any change in your billing address or Payment Provider to be used for payment hereunder.
2. Taxes. The payments required hereunder do not include any Sales Tax that may be due in connection with the Services. If Matician determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Matician may collect such Sales Tax in addition to the payments required under Sections 2.1 and 3.3. If any services or products, or payments for any services or products, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Matician, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Matician for any liability or expense Matician may incur in connection with such Sales Taxes. Upon Matician’s request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. Additionally, you agree to make all payments of fees to Matician free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Matician will be your sole responsibility, and you will provide Matician with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
3. Billing Errors. In the event of a billing error, we reserve the right to correct the error and revise your payment accordingly, which may include charging the correct price.
4. No Refunds. Except as otherwise expressly described by this Agreement, all fees for the Services are non-refundable.
5. Late Payments. If we do not receive a payment you owe us under these Terms by the date such payment comes due (including but not limited to any failure by a Payment Provider to honor any charge), which may be after the Matic Membership or Account is terminated, we will attempt to notify you and will make additional attempts to charge your designated Payment Provider. Late or missed payments will not change your billing period or other scheduled payments.
6. Promotional Credits. We may choose, at our sole discretion, to offer promotions or credits for the Services in various ways, including but not limited to, coupons, credits, and promotional campaigns (“Promotional Credits”). To qualify for and receive any Promotional Credits, you must meet the requirements indicated in the applicable Promotional Credits offer. Unless otherwise indicated in the terms of the credit offer, Promotional Credits can only be used to offset your subsequent Matic Membership fee payments. To the extent that you have been awarded Promotional Credits, unless the offer states a different expiration date, credits will expire and no longer be redeemable twelve (12) months from the date the applicable Promotional Credit was issued. All offers are subject to availability. We may, in our sole discretion, modify or cancel a Promotional Credit offer at any time.
  
  Under no circumstances can Promotional Credits offset the amount due for the Matic Membership fees, or other amounts owed, by more than the amount then owed. If Promotional Credits are applied to a payment that later qualifies for a refund, the maximum refund you may receive is the amount you actually paid. Under no circumstances will a refund be made for the cash value or cash equivalent of previously applied Promotional Credits. Promotional Credits are issued for promotional purposes only; they have no cash value and may not be exchanged for cash or cash equivalents. Promotional Credits can only be used by you, are non-transferable, and may not be auctioned, traded, copied, bartered, modified, or sold. We may alter the terms and conditions applicable to any Promotional Credits at any time and for any reason.
Matic
1. Delivery. You must follow instructions we provide to receive the Matic. You bear all risk of loss for the Matic once it has been delivered to the address you’ve provided Matician. You agree to promptly inspect the Matic once it has been delivered and to notify us immediately at support@matician.com if you find any damage. If you fail to notify us of any damage upon receipt, you agree the Matic was damage-free when delivered.
2. Safety. Prior to using the Matic for the first time, you must complete our onboarding procedures and review any safety warnings and instructions we provide, including the warnings and instructions identified in our safety card. You agree to always follow these warnings and instructions while using a Matic.
3. Setup and Use. You are responsible for the setup and use of the Matic in accordance with the instructions we provide, including those described in the user manual. You may only use the Matic with accessories provided by us (for example, HEPA bags) and in accordance with our instructions, including any instructions provided by our support team. You are responsible for obtaining a reliable wireless internet connection at the place in which the Matic is located, and you acknowledge the Services may be subject to malfunctions and delays inherent in the use of the internet. You agree that you will not give or lend the Matic to anyone else. You agree to protect the Matic against damage, tampering, theft, and misuse, and agree to notify our support team at support@matician.com immediately if the Matic is lost, damaged, or stolen. If the Matic is stolen, you agree to file available insurance claims, cooperate with us on any insurance claims we make, and remit to us any proceeds you receive from an insurance claim on the Matic.
4. Consumable Accessories. As long as the Matic Membership is active, we will provide unlimited refills on consumables needed to operate and maintain the Matic, including HEPA bags, brush rolls, and mop rolls to the mailing address you’ve last associated with your Account. You agree to replace such consumable accessories in accordance with the schedule and instructions set forth in the user manual.
5. Limited Warranty; Maintenance or Replacement. Matician warrants that the Matic will materially conform to the documentation provided to you, including the user manual, and that the Matic will function as described therein when operated in accordance with the applicable user instructions (the “Membership Warranty”). Notwithstanding the foregoing, you acknowledge that the Matic may incorporate neural network (“NN”) and artificial intelligence (“AI”) components, and that such components may not always behave as expected or produce the desired outcomes. Matician does not warrant the infallibility of the NN and AI components and shall not be held responsible for any deviations from expected behavior arising from these components. You agree to notify Matician promptly upon discovery of any error, malfunction, or damage to the Matic at support@matician.com. Subject to your compliance with all instructions provided by us, including any instructions provided by our support team, Matician will maintain, repair, or replace (each, at our sole discretion) any Matic which does not materially conform to the Membership Warranty. Without limiting the foregoing, you are responsible for any repair or replacement costs for any damage not covered by the Membership Warranty, including but not limited to damage caused by or resulting from (i) any failure to follow all user instructions provided by Matician, (ii) any neglect or failure to maintain the machine in accordance with the documentation provided by Matician; (iii) negligence or intentional misconduct by you or any third party while the Matic is in your possession. We retain sole discretion in determining whether maintenance or replacement of a Matic is needed and whether maintenance or replacement is covered by the Membership Warranty.
6. Return. You must return the Matic and all accessories (unless we instruct otherwise) to us in order to cancel the Matic Membership, if the Matic Membership is terminated for any reason, as needed for maintenance or replacement, to receive an upgraded Matic or different model, for recall advisories, or for other reasons as we may indicate. You agree to return the Matic in accordance with the instructions we provide. If we send you a box to return the Matic but you do not complete the return within the applicable Return Window, additional charges may apply if you need an additional box to complete a return. If we instruct you to return a Matic, you must do so by the date we specify. Your Matic Membership will not be canceled until all Matic(s) sent to you have been returned or you have paid the applicable replacement fee.
7. Exclusive Matician Ownership. You acknowledge that the Matic and all accessories are the exclusive property of Matician. Any Matic and accessories we provide are rentals subject to your having an active Matic Membership, and we retain ownership of the Matic and all accessories at all times. Nothing (including payment of charges for unreturned, lost, stolen, or damaged Matic(s)) will result in a sale of, or transfer of title to, any Matic. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services, or to make any modifications to the Matic which are not authorized by us in writing.
8. Matic Model; Upgrades. Your Matic may be a refurbished model with cosmetic imperfections. We reserve the right to replace your Matic with a different Matic for any reason at any time upon notice to you, and you agree to follow any steps we provide related to effecting such an exchange. We may, from time to time, make upgraded versions of the Matic available, or choose to offer additional Matic(s), accessories, or other services. If we indicate that an upgrade requires payment of additional fees, and you elect to receive the upgrade, you are responsible for such fees, including, if applicable, any recurring fees, in the amount indicated at the time you elect to purchase the upgrade, including applicable taxes.
Intellectual Property
1. Ownership. The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, are owned by us or our licensors and are protected under both United States and foreign laws. All rights in and to the Services, including, but not limited to, any intellectual property rights in the firmware or software embedded in the Matic, the Website, and our Mobile App or otherwise used to provide the Services, are reserved by us or our licensors.
2. Limited License; Updates. Subject to these Terms, you may use the Services for your own personal use, and we grant you a non-exclusive, non-transferable, revocable limited license to install copies of our Mobile App on mobile devices you own or control for use in connection with the Matic Membership and Account. Software copies and updates to our Mobile App, and software and firmware copies and updates to the Matic, are licensed and not sold to you personally in object code form only (without making any modification thereto) on a non-exclusive, non-transferable, limited, and revocable basis. You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of any portion of the Services. We may, from time to time, provide updates to the Services. You authorize us to automatically install these updates without providing any additional notice or receiving any additional consent from you. If you do not want those updates, your sole and exclusive remedy is to stop using the Services. If we ask for your cooperation to install any update, you must follow our instructions to promptly install such update. Any use of the Services other than as specifically authorized by us, without our prior written permission, is strictly prohibited and will immediately terminate the license granted herein.
3. Feedback. You may voluntarily submit or otherwise communicate to us any questions, comments, suggestions, ideas, or other feedback about us or our Services. You understand that we may use such feedback for any purpose, commercial or otherwise, without restriction or acknowledgment or compensation to you. You understand that we may treat feedback as nonconfidential.
4. Trademarks. Matician’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Matician and may not be used without permission in connection with your, or any third-party, products or services. Third-party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
Service Restrictions

You will not, nor will you permit anyone else to: (i) use a Matic or any other portion of the Services other than for their intended purpose; for any malicious, illegal, or unauthorized purpose; or in a negligent, grossly negligent, or reckless manner; (ii) violate any applicable law, contract, intellectual property right, or other third-party right, or commit a tort in connection with your use of the Services; (iii) place the Matic (a) outside of your dwelling, (b) in an uncovered area, or (c) anywhere it is reasonably likely to be damaged; (iv) license, sell, resell, rent, lease, transfer, assign, trade, barter, distribute, host, or otherwise commercially exploit the Services, including a Matic, in any way; (v) copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; (vi) make or allow others to make any aftermarket alterations or modifications to the Matic, or otherwise tamper with the Matic; (vii) provide the Matic to anyone other than us or our authorized agents for alteration, adjustment, or maintenance of any kind; (viii) intentionally damage a Matic; (ix) modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; or (x) engage in, encourage, or promote any activity that violates this Agreement.
Indemnification

You agree to indemnify and hold Matician, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Matician Party” and collectively, the “Matician Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) your use of any Services in violation of the Agreement; (ii) your violation of any rights of another individual or entity; or (iii) your violation of any applicable laws, rules or regulations. Matician reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Matician in asserting any available defenses. This provision does not require you to indemnify any of the Matician Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
Disclaimer of Warranties
1. YOU AGREE THAT THE MATIC IS STILL IN DEVELOPMENT AND IS BEING PROVIDED TO YOU BEFORE IT IS AVAILABLE FOR GENERAL COMMERCIAL RELEASE. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5.5 HEREIN, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5.5 HEREIN, MATICIAN EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
2. MATICIAN MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MATICIAN OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
4. From time to time, Matician may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Matician’s sole discretion. The provisions of this section apply with full force to such features or tools.
Limitation of Liability
1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE MATICIAN PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT MATICIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A MATICIAN PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MATICIAN PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR FOR (ii) ANY INJURY CAUSED BY A MATICIAN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE MATICIAN PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO MATICIAN BY YOU DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MATICIAN PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MATICIAN PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR FOR (ii) ANY INJURY CAUSED BY A MATICIAN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
3. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MATICIAN AND YOU.
ARBITRATION AGREEMENT. Please read this Section 11 (sometimes referred to herein as this “Arbitration Agreement”) carefully. It is part of your agreement with Matician and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Matician agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Website, any communications you receive from Matician, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Matician may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Matician may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Matician. If that occurs, Matician is committed to working with you to reach a reasonable resolution. You and Matician agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome. You and Matician therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
  
  The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Matician that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@matician.com or regular mail to our offices located at 339 Bernardo Avenue, Suite 100, Mountain View, CA 94043. The Notice must include: (1) your name, telephone number, mailing address, and email address (if you have one); (2) the name, telephone number, mailing address and email address of your counsel, if any; and (3) a description of your Dispute.
  
  The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
3. Waiver of Jury Trial. YOU AND MATICIAN HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Matician are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
4. Waiver of Class and Other Non-Individualized Relief. YOU AND MATICIAN AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 11.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 11.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Matician agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco, California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Matician from participating in a class-wide settlement of claims.
5. Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Matician agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
  
  A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
  
  If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
  
  Unless you and Matician otherwise agree, or the Batch Arbitration process discussed in Section 11.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
  
  You and Matician agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 11.9 is triggered, the AAA will appoint the arbitrator for each batch.
7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 11.4, including any claim that all or part of Section 11.4 is unenforceable, illegal, void or voidable, or that Section 11.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 11.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 11.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Matician need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Matician agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Matician by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
  
  All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Matician.
  
  You and Matician agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
  
  This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 339 Bernardo Avenue, Suite 100, Mountain View, CA 94043 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to Matician (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11. Invalidity, Expiration. Except as provided in Section 11.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Matician as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Matician makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Matician at 339 Bernardo Avenue, Suite 100, Mountain View, CA 94043, your continued use of the Website, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Website, any communications you receive, any products sold or distributed through the Website or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Matician will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
Accessing and Downloading the Mobile App from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
1. You acknowledge and agree that (i) the Agreement is concluded between you and Matician only, and not Apple, and (ii) Matician, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Matician and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Matician.
4. You and Matician acknowledge that, as between Matician and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and Matician acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Matician and Apple, Matician, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
6. You and Matician acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
General Provisions
1. Governing Law. Any dispute, claim or request for relief relating in any way to your use of the services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
2. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Matician agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
3. Electronic Communications. The communications between you and Matician may take place via electronic means, whether you visit the Services or send Matician emails, or whether Matician posts notices on the Services or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Matician in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Matician provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
4. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Matician’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
5. Force Majeure. Matician shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
6. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@matician.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
7. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
8. Notice. Where Matician requires that you provide an email address, you are responsible for providing Matician with your most current email address. In the event that the last email address you provided to Matician is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Matician’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Matician at the following address: 339 Bernardo Avenue, Suite 100, Mountain View CA 94043. Such notice shall be deemed given when received by Matician by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
9. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
11. Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Matician are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Matician products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
13. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.