VERSION 1.0
LAST REVISED ON: 13 FEBRUARY 2023
The following Terms and Conditions (the “Terms”) govern your access to and use of the Convergent platform for data consolidating, formatting, cleaning, and/or other scrubbing services located at convergentpro.io (the “Services”) and provided by Coherent Capital Advisors Limited, a company duly established and existing under the laws of Hong Kong (“Coherent,” “us,” “our,” and “we”). By clicking on the “I Accept” button, creating an Account (as defined below) on the Services, submitting an online request form (a “Job Submission”) for Scrubbing Services (as defined below), or otherwise accessing or using the Services, you acknowledge and agree that you have read and agree to be bound by this Agreement (as defined below).
1. OVERVIEW. The Services enables you to have data provided by you processed through the data consolidating, formatting, cleaning, and/or scrubbing services offered on the Services (the “Scrubbing Services”) in accordance with instructions you provide and receive the results of such processing (the “Outputs”). For purposes of this Agreement “Inputs” means any data provided by you for purposes of processing with the Scrubbing Services.
1.1 License. Subject to this Agreement, Coherent grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services solely for your own personal or internal use.
1.2 Certain Restrictions. You will not, directly or indirectly, shall not permit any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Services; (ii) write or develop any program that is based upon the Services or any portion of any of the foregoing, or otherwise use the Services in any manner for the purpose of developing, distributing or making available products or services that compete with the Services; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights to any of the foregoing; (iv) alter or remove any trademarks or proprietary notices contained in or on the Services; (v) circumvent or otherwise interfere with any authentication or security measures of the Services or otherwise interfere with or disrupt the integrity or performance of the foregoing; (vi) upload or submit any invalid data, viruses, worms, timebombs, or other software agents to the Services or otherwise harm the Services; (vii) permit any person to access or use the Services except as expressly set forth herein; (viii) use the Services for any illegal or unethical purposes; (ix) upload or submit any data, information, or content to the Services that infringes, misappropriates, or violates any third party’s rights or violates any applicable laws; or (x) otherwise use any portion of the Services for any purpose that is not expressly permitted hereunder. You represent and warrant to Coherent that you have all rights, authorizations, and consents to provide any data or information provided to the Services and you have all rights, authorizations, and consents to grant Coherent the rights and permissions to use and process such data as contemplated by this Agreement. You represent and warrant that you, at all times during the use of the Services, comply with all applicable laws in connection with your and their use of the Services. You acknowledge that Coherent may, but is under no obligation to, monitor your use of the Services. Coherent may suspend your access to the Services at any time for any reason, including if Coherent has reason to believe they are in noncompliance with this Agreement.
1.3 Modification. Coherent reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Coherent will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
1.4 No Support or Maintenance. You acknowledge and agree that Coherent will have no obligation to provide you with any support or maintenance in connection with the Services.
1.5 Enforcement. You acknowledge that Coherent may, but is under no obligation to, monitor your use of the Services. Coherent may suspend your access to the Services and/or cancel accepted Job Submissions at any time for any reason, including if Coherent has reason to believe you, Your Content, or your Job Submissions are in violation of this Agreement.
2.1 Account Creation. To access and use certain features and functionality of the Services, you may be required to create an account on the Services (an “Account”). If you register an Account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted in connection with registration; and (ii) maintain and promptly update such information to keep it true, accurate, current, and complete. You are responsible for all activities that occur under your Account, including any Job Submissions, whether or not expressly authorized by you. You may not share your Account or password with anyone, and you agree to notify us immediately of any unauthorized use of your Account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Coherent has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Coherent has the right to suspend or terminate your Account, cancel any Scrubbing Services regardless of whether they have already commenced, 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 except as expressly authorized by such individual or entity and by Coherent.
2.2 Account Responsibilities. If you have an Account, you are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Coherent of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Coherent cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.1 Scrubbing Services. Subject to the terms and conditions of this Agreement, including payment of all applicable fees, Coherent will use commercially reasonable efforts to provide the Scrubbing Services and Outputs described in a Job Submission that is accepted by Coherent in accordance with the Agreement. You must provide all Inputs and assistance necessary for Coherent to perform the Scrubbing Services for you. Coherent shall not be responsible for any delays in its performance under this Agreement that results directly or indirectly from your action or inaction.
3.2 Job Submission. By submitting a Job Submission, you are submitting an offer for Coherent to provide Scrubbing Services, which can be accepted or rejected by Coherent in its sole discretion. You agree that you will not submit a Job Submission for any illegal or unethical purposes or for the processing of Personally Identifiable Information (defined below). Coherent will have no obligation with respect to any Job Submission unless and until Coherent accepts such Job Submission. A Job Submission will only be considered accepted upon Coherent sending you an email confirmation with respect to such Job Submission or Coherent’s commencement of the applicable Scrubbing Services. Even if a Job Submission has been accepted, Coherent may cancel a Job Submission at any time in its sole discretion, for any or no reason. If you pay for Scrubbing Services on a one-off basis and Coherent cancels a Job Submission, Coherent will provide you a refund for that Job Submission. If any Scrubbing Services under a Job Submission are within the quantities included in a Subscription that you purchased and Coherent cancels such Job Submission, the cancelled Job Submission will not count towards the quantity of Scrubbing Services allocated for the then current Initial Term or Renewal Term (as defined below).
4.1 Fees and Payment. You will pay Coherent all fees and charges for Scrubbing Services that you purchase and any other fees and charges to your Account, if applicable. Coherent may add new products and services for additional fees and charges or amend fees and charges for existing products and services, at any time in its sole discretion, provided that Coherent will provide notice of any increase in fees payable for any Subscription you have purchased. Coherent reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All fees are non-cancellable, non-refundable, and non-recoupable. Interest accrues from the due date at the lesser of 5% per year or the highest rate allowed by law. You are responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Coherent’s net income).
4.2 Payment Information. You may be required to provide Coherent or its third-party payment processor with information pertaining to a valid credit card (Visa, MasterCard, or any other issuer accepted by us), or other permitted payment method (“Payment Information”). You agree that Coherent and its third-party payment processor, as applicable, is authorized to immediately charge the Payment Information for all fees due and payable by you and that no additional notice or consent is required. You agree to immediately notify Coherent of any change in your billing address or Payment Information. Without limiting anything set forth therein, you acknowledge and agree that all Payment Information is sent directly to and stored with the third-party payment processor using its security protocols. Coherent does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information.
4.3 Subscriptions. If you elect to sign up for a Subscription, the fee for that Subscription will be billed at the start of the Subscription and at regular intervals in accordance with your elections at the time of purchase. Coherent reserves the right to change the timing of our billing. A Subscription will continue for the period identified at the time of purchase (the “Initial Term”) and will then be automatically renewed indefinitely for additional periods of the same duration as the Initial Term (each a “Renewal Term”) at Coherent’s then-current fees for such Subscription. You agree that your Subscription will be subject to this automatic renewal feature unless you cancel your Subscription at least thirty (30) days prior to the commencement of the next Renewal Term. For purposes of this Agreement, each of the Renewal Terms and the Initial Term of a Subscription, are referred to individually as a “Subscription Period.” Upon renewal of a Subscription, if Coherent does not receive payment via the Payment Information, you agree: (i) to pay all amounts due on your Account upon demand; and/or (ii) that Coherent may terminate or suspend the Subscription and continue to attempt to charge the Payment Information until payment is received.
(a) Cancellations. If you have a Subscription, you may cancel that Subscription prior to the start of a Renewal Term at convergentpro.io. If you cancel a Subscription, such cancellation shall be effective as of, and you may use such Subscription until the end of, the then-current Subscription Period, but the Subscription will not be renewed thereafter. However, in no event will you be eligible for a prorated refund of any portion of the fees paid for the then current Subscription Period.
(b) Use. Purchasing a Subscription grants you a right to receive a certain quantity of Scrubbing Services identified at the time of purchase of such Subscription during the Initial Term and each Renewal Term. Unused quantities of Scrubbing Services do not accumulate or rollover from any Initial Term or Renewal Term to the next Renewal Term. You will not be refunded or credited for any unused quantities of Scrubbing Services under a Subscription. Any Scrubbing Services ordered in excess of the quantity limits of a Subscription in any Initial Term or Renewal Term will be billed on a one-off basis at Coherent’s then standard fees.
(c) Upgrades and Downgrades. If permitted by the functionality of the Services and you choose to upgrade your Subscription in the middle of a Subscription Period, such upgrade will take effect immediately and any incremental fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the fees will reflect any such upgrades. If permitted by the functionality of the Services and you choose to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of the Services as available, and Coherent does not accept any liability for such loss.
4.4 Free Trials. Coherent may offer you access, on a time-limited basis, to certain pre-release, or beta, features or functionality of the Services or certain features or functionality of the Services as a free trial (a “Free Trial”) without charge. The period of each Free Trial will commence upon your agreement to the Free Trial and continue for the period communicated to you via the Services. Coherent may terminate or cease offering any Free Trial at any time and for any or no reason. Unless otherwise stated at the time that you opt-in for a Free Trial, upon expiration or termination of the Free Trial, your access to and use of the applicable features and functionality of the Free Trial will terminate and any data or information stored as part of or in connection with the Free Trial may be erased or inaccessible to you unless you purchase the applicable features and functionality, if offered by Coherent; provided that you acknowledge and agree that Coherent has no obligation to make the features or functionality of any Free Trial available to you outside of the Free Trial. Where stated at the time that you opt in for a Free Trial, a Free Trial that automatically converts into a Subscription may be made available prior to charging your payment method for the Subscription. The period of such Free Trial will be communicated to you via the Services. If you decide to unsubscribe from the applicable Subscription before Coherent starts charging your payment method, you must cancel the Subscription before the free trial ends at convergentpro.io. Otherwise, you will be responsible for payment for the full term of the Subscription Period.
4.5 Taxes. The payments required under this Agreement do not include any sales, use, or value added tax and any other equivalent tax (“Sales Tax”) that may be due in connection with the Services provided under this Agreement. If Coherent determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Coherent shall collect such Sales Tax in addition to the payments required under this Agreement. If payments for any Services under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Coherent, 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 Coherent for any liability or expense Coherent may incur in connection with such Sales Taxes. You agree to make all payments of fees to Coherent free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Coherent will be your sole responsibility, and you will provide Coherent with official receipts issued by the appropriate taxing authority, or such other evidence as Coherent may reasonably request, to establish that such taxes have been paid. If you are legally obligated to withhold any taxes from payments made to Coherent, you will be entitled to do so provided that you pay the relevant taxes on behalf of Coherent to relevant tax authorities, and you furnish to Coherent copies of receipts or other government certifications evidencing all taxes withheld from such payment promptly after such receipts are available. You and Coherent will cooperate and endeavor to comply with all applicable documentation requirements so as to minimize the amount of withholding taxes imposed.
5.1 Ownership. Excluding Your Content (defined in Section 6.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Coherent or Coherent’s suppliers. Neither this Agreement nor your access to the Services transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. Coherent and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
5.2 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Coherent (“Feedback”) is at your own risk and that Coherent has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Coherent a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Coherent’s business or for any other purpose.
6.1 Your Content. “Your Content” means any and all information and content that you submit to the Services, including, without limitation, Inputs, Job Submission instructions, and Outputs. As between you and Coherent, you retain ownership of the rights in or to Your Content. You are solely responsible for Your Content and your use of the Outputs. You assume all risks associated with use of Your Content, including any reliance on their accuracy, completeness, or usefulness by others, or any disclosure that personally identifies you or any third party. You hereby represent and warrant that Your Content does not violate the Restrictions set forth in Section 1. You may not represent or imply to others that Your Content is in any way provided, sponsored, or endorsed by Coherent. Because you alone are responsible for Your Content and the use of the Outputs, you may expose yourself to liability if, for example, Your Content contains Personally Identifiable Information or any losses occur due to reliance on inaccurate Outputs.
6.2 Storage. Coherent is not obligated to back up Your Content and Your Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of Your Content if you desire.
6.3 Use of Your Content. You hereby grant (and you represent and warrant that you have the right to grant) to Coherent an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, prepare derivative works of, and otherwise use Your Content and to grant sublicenses of the foregoing rights, solely for the purposes of making available the Services to you, perform its obligations hereunder, and improving the Services, including, without limitation, creating an automated data scrubbing technology and performing any required, usual, appropriate, or acceptable activities relating to the Services, such as: (i) providing or supporting the use of the Services to you; (ii) maintaining records relating to the Services; and (iii) complying with any legal or self-regulatory obligations relating to the Services.
6.4 No Personally Identifiable Information. Coherent does not wish to receive, and Coherent requests that you do not provide, and you agree that you will not provide, information that, when used alone or with other relevant data, can identify an individual (“Personally Identifiable Information”) as part of your Inputs. You acknowledge and agree that the Services are not intended for the processing of Personally Identifiable Information. You represent and warrant that your Inputs will not include or contain any Personally Identifiable Information.
6.5 No Obligation to Pre-Screen. You acknowledge that Coherent may, but has no obligation to, pre-screen Your Content, although Coherent reserves the right in its sole discretion to pre-screen, refuse, or remove any of Your Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. In the event that Coherent pre-screens, refuses, or removes any of Your Content, you acknowledge that Coherent will do so on its benefit, not yours. Without limiting the foregoing, Coherent shall have the right to remove any of Your Content and/or terminate this Agreement or your ability to access and use the Services in the event that Your Content violates the Agreement or is otherwise objectionable, including if any of your Inputs contains Personally Identifiable Information.
You agree to indemnify and hold Coherent (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Services, (ii) Your Content, (iii) your violation of this Agreement; (iv) your violation of applicable laws or regulations; or (v) your reliance on or use of any Outputs. Coherent reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Coherent. Coherent will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
8.1 Third-Party Links, Applications & Ads. The Services may contain links to third-party services, applications, and/or display advertisements for third parties (collectively, “Third-Party Links, Applications & Ads”). Such Third-Party Links, Applications & Ads are not under the control of Coherent, and Coherent is not responsible for any Third-Party Links, Applications & Ads. Coherent provides access to these Third-Party Links, Applications & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Applications & Ads. You use all Third-Party Links, Applications & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, Applications & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links, Applications & Ads.
YOU UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICES, INCLUDING THE SCRUBBING SERVICES AND ANY OUTPUTS ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, INCLUDING THE SCRUBBING SERVICES AND OUTPUTS ARE PROVIDED “AS IS.” COHERENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF YOUR CONTENT RETURNED FROM THE SERVICES. COHERENT DOES NOT WARRANT THAT THE SERVICES, INCLUDING ANY SCRUBBING SERVICS WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY, TO, OR THROUGH THE SERVICES, INCLUDING ANY OUTPUTS, WILL BE ACCURATE OR COMPLETE, OR THAT COHERENT’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO YOUR CONTENT OR OUTPUTS. YOU ACKNOWLEDGE AND AGREE THAT: (i) YOU ARE SOLELY RESPONSIBLE FOR YOUR CONTENT AND USE OF THE OUTPUTS, AND COHERENT WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE USE OF THE OUTPUTS OR FOR THE EFFECTIVENESS, ACCURACY, OR COMPLETENESS OF ANY OUTPUTS; AND (ii) YOU BEAR ALL RESPONSIBILITY, AND COHERENT WILL HAVE NO LIABILITY FOR DECISIONS BASED ON ANY OUTPUTS RETURNED FROM THE SCRUBBING SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
FROM TIME TO TIME, COHERENT MAY OFFER BETA SERVICES. SUCH BETA SERVICES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COHERENT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO BETA SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (i) IN NO EVENT WILL COHERENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING LOST PROFITS), HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (a) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE THE SCRUBBING SERVICE, INCLUDING ANY OUTPUT; (b) ANY DECISION MADE WITH RESPECT TO THE OUTPUTS; OR (c) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR ACCOUNT, TRANSMISSIONS, YOUR OUTPUTS, AND YOUR CONTENT, INCLUDING YOUR INPUTS; AND (ii) COHERENT’S TOTAL LIABILITY WITH RESPECT TO THE SERVICES, THE OUTPUTS, OR FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED TO $100. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COHERENT AND CUSTOMER.
11.1 Term. The Agreement commences on the earlier of: (i) the date you first used the Services and (ii) the date you accepted the Agreement and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Agreement.
11.2 Termination by Coherent. Coherent may terminate this Agreement or your ability to access or use any or all Services at any time for any reason or no reason, including if timely payment cannot be charged to your Payment Information for any reason, if you have materially breached any provision of the Agreement, or if Coherent is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful).
11.3 Termination by You. You may terminate this Agreement by: (i) notifying Coherent at any time; (ii) cancelling your Subscription(s) as described in Section 4.3(a); and (iii) closing your Account for the Service. Any such termination shall be effective as of and, in the event of such termination, this Agreement will remain in effect until the end of the then current term of any and all of the Subscriptions as set forth in Section 4.3.
11.4 Effect of Termination. In the event of the expiration or termination of the Agreement for any reason: (i) your access to the Services, and the licenses granted to you hereunder will automatically terminate; and (ii) all outstanding payment obligations upon the effective date of termination will become due and payable immediately. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1.2, 4 through 13. Notwithstanding the termination of this Agreement, your Account, or a Subscription, Coherent may no longer allow you or any third parties to access your Outputs.
12. ARBITRATION CLAUSE AND CLASS ACTION WAIVER. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Coherent arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 12 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND COHERENT HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND COHERENT BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 12 CAREFULLY.
12.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Coherent agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Coherent may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Coherent 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 Terms as well as claims that may arise after the termination of these Terms.
12.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Coherent. If that occurs, Coherent is committed to working with you to reach a reasonable resolution. You and Coherent agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Coherent 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 also agree to 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 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Coherent that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@convergentpro.io or regular mail to our offices located at 1646 West Snow Avenue, Suite 6, Tampa, Florida 33606, United States of America. The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) 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.
12.3 Waiver of Jury Trial. YOU AND COHERENT 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 Coherent are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.4 Waiver of Class and Other Non-Individualized Relief. YOU AND COHERENT AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 12.9 (BATCH ARBITRATION), 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 the subsection 12.9 (Batch Arbitration) entitled “Batch Arbitration.” 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 subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Coherent 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 New York, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Coherent from participating in a class-wide settlement of claims.
12.5 Rules and Forum. These Terms evidence 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 process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Coherent agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitratio n/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) 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; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) 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: (i) 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; (ii) 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 (iii) 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 otherwise agree, or the Batch Arbitration process discussed in subsection 12.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Coherent 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.
12.6 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 JAMS 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 JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 12.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
12.7 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: (i) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) 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 (iv) 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 the subsection entitled “Batch Arbitration.” 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.
12.8 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 Coherent 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 process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
12.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Coherent agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Coherent 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), JAMS shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) 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 JAMS, and JAMS 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 Coherent.
You and Coherent agree to cooperate in good faith with JAMS 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: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) 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.
12.10 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: 1646 West Snow Avenue, Suite 6, Tampa, Florida 33606, United States of America, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Coherent Account (if you have one), 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 these Terms 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.
12.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief”, 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 Coherent 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.
12.12 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Coherent makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Coherent at: 1646 West Snow Avenue, Suite 6, Tampa, Florida 33606, United States of America , your continued access and use of the Services, including the acceptance of products and services offered on or through the Services, 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 these Terms 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 Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Coherent will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
13.1 Changes. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Services. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
13.2 Entire Agreement. This Agreement constitutes the entire agreement between you and Coherent regarding the use of the Services. Coherent’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Coherent is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Coherent’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Coherent may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
13.3 Force Majeure. Coherent will not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
13.4 Exclusive Venue and Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation, will be governed by and construed in accordance with the laws of New York, consistent with the federal arbitration act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the agreement. The parties agree to submit to the exclusive jurisdiction and venue of the state and federal courts located New York, New York for any litigation under this Agreement permitted to be initiated in court.
13.5 Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to use, export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Coherent, or any products utilizing such data, in violation of the United States export laws or regulations. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained or used 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 Coherent 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 Coherent products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.6 Disclosures. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product 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.
13.7 Electronic Communications. The communications between you and Coherent use electronic means, whether you use the Services or send Coherent emails, or whether Coherent posts notices on the Services or communicates with via email. For contractual purposes, you: (i) consent to receive communications from Coherent in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Coherent provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
13.8 Notice. Where Coherent requires that you provide an e-mail address, you are responsible for providing Coherent with your most current e-mail address. In the event that the last e-mail address you provided to Coherent is not valid, Coherent’s dispatch of the e-mail containing such notice will constitute effective notice. you may give notice to Coherent by email via the contact information below. Such notice shall be deemed given when received by Coherent by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address or, in the case of notice by email, when such email has been transmitted to Coherent.
13.9 Contact Information:
Address: 1646 West Snow Avenue, Suite 6 Tampa, Florida 33606, United States of America
Email: support@convergentpro.io
