Terms of Service

Last updated on May 20, 2018

Sickk Software, LLC., a Delaware Limited Liability Company (together with its subsidiaries and other affiliates, “Arched”), owns and/or operates the web pages available at www.archedkeyboard.com and all sub-domains thereof (collectively, the “Site”). Access to and use of the software (“Software”) and services (“Services”) available on or through the Site or otherwise provided by Arched (including, without limitation, any mobile applications), as well as any future Software or Services provided by Arched are governed by this Terms of Service and License Agreement (this “Agreement”).

THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY REFERENCED HEREIN, YOU MUST IMMEDIATELY LEAVE THE SITE AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SERVICES OR SOFTWARE. BY ACCESSING OR USING THE SITE, SERVICES AND/OR SOFTWARE, YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD (OR IF YOU ARE BETWEEN 13 AND 17 YEARS OLD, INCLUSIVE, THAT YOU ARE USING THE SITE, SERVICES AND/OR SOFTWARE ONLY WITH THE APPROVAL OF YOUR PARENT OR GUARDIAN), THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT, AND THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.

If you are an individual paying subscriber, or are accessing the Site to use a Trial (as defined below) of the Services or Software, or are otherwise browsing the Site, this Agreement is between you, individually, and Arched.

THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST Arched AND ITS LICENSORS AND ITS SUPPLIERS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST Arched AND ITS LICENSORS AND ITS SUPPLIERS ON YOUR OWN BEHALF, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON YOUR OWN BEHALF, AND (3) YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.

Licenses

If you are an individual subscriber: In consideration for your agreement to this Agreement and your payment of all applicable Fees (as defined below), Arched grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site, the Services and the Software solely for your own personal purposes.

You may access and use the Site, Services and Software only in accordance with any instruction manuals, user guides and other documentation as made available by Arched from time to time (“Documentation”).

In addition, you may not:

(a) copy, modify or create derivative works based on the Site, Services, Software or Documentation, or any portion(s) of any of the foregoing (individually and collectively, “Arched IP”);
(b) distribute, transmit, publish or otherwise disseminate any Arched IP;
(c) download or store any Arched IP except to the extent explicitly permitted on the Site;
(d) access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Site, Software or Services;
(e) attempt to access or derive the source code or architecture of any Software;
(f) attempt to probe, scan or test the vulnerability of the Site, Services and/or Software, or any associated system or network, or to breach any security or authentication feature or measures of the Site, Software or Services, and if you are blocked by Arched from accessing the Site, Software or Services (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);
(g) interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code (“Malicious Code”) to the Site or Services, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,”;
(h) email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized materials; or (vi) is otherwise objectionable;
(i) automate access to the Site or the Services, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;
(j) export or re-export any Arched IP;
(k) use or access any Services, Software or Arched IP in order to build a competitive product, service or solution;
(l) violate any applicable law or regulations in connection with your use of the Site, Services or Software;
(m) permit any third party to do any of the foregoing.

Arched may offer certain Software, including certain interfaces, for download from the Site (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely for in conjunction with your authorized use of the Services. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.

Certain Services or Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Services or Software (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Services or Software will be contingent upon your acceptance of and compliance with such Specific Terms.

Fees, Payment and Trial Memberships

Free trial

Arched may offer a free trial membership from time to time with regard to certain Software or Services (a “Trial”). By accessing or using the Site, Services or Software, you agree to the terms of any such Trial and further agree to any changes Arched may make to such Trial as described in “Changes to Services or Terms” below. If you cancel the Services before the end of the trial period, all your rights to any remaining free trial period will be waived and you will not be eligible to participate in any further Trials, except as allowed by Arched in its sole discretion.

In-App Purchases

Arched may offer in-app purchases from time to time with regard to certain Software or Services (an “IAP”). By accessing or using the Site, Services or Software, you agree to the terms of any such IAP and further agree to any changes Arched may make to such Trial as described in “Changes to Services or Terms” below.

You acknowledge and agree that all billing and transaction processes are handled by the App Store Provider from whose platform you access or use the the Site, Services or Software, and are governed by such App Store Provider’s terms and conditions/EULA. If you have any payment related issues with In-App Purchases, then you need to contact the App Store Provider directly.

Termination

This Agreement shall continue until you stop using the Services or until terminated by Arched. Arched may deny you access to all or any part of the Services or terminate your account with or without prior notice if you engage in any conduct or activities that Arched determines, in its sole discretion, violate this Agreement or the rights of Arched or any third party, or is otherwise inappropriate. Without limitation, Arched may deny you access to the Services, or terminate this Agreement and your account, if your use of the Services exceeds the 30-day and 24-hour use limitations set forth under the section titled “License.”

Access to Services

You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.

Mobile Services

The Site, Software and Services may include products and services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Arched may communicate with you regarding Arched and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your mobile telephone number.

User Content

You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. Arched has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content. You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. Arched is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and Arched does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.

By uploading or entering any User Content, you give Arched (and those it works with) a nonexclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content (and, if you are an Authorized User, your Enterprise Subscriber’s User Content) in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services.

Changes to Services or Terms

Arched reserves the right at any time to (i) change any information, specifications, features or functions of the Site, Services or Software, including any Trial, (ii) suspend or discontinue, temporarily or permanently, any or all of the Services or any Trial, including the availability of any feature, database or content, or (iii) impose limits on certain features and Services or restrict access to parts or all of the Services, including any Trial, in each case with or without prior notice and without any liability to you or any third party. Arched will use its commercially reasonable efforts to notify you of changes to the Services and/or Software that, in Arched’s reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Services to which you have subscribed.

Arched may from time to time update or revise this Agreement. If Arched updates or revises this Agreement, Arched will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service and End User License Agreement on the Site or by any other manner chosen by Arched in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service and End User License Agreement at archedkeyboard.com/terms-of-service. It is your responsibility to review the Terms of Service and End User License Agreement periodically.

Data Collection and Privacy

Arched does not collect personally identifiable information from you except to the extent you have explicitly given such information to Arched. Arched’s information practices are further described in its privacy policy, which is available at: archedkeyboard.com/privacy-policy (the “Privacy Policy”). The Privacy Policy is an integral part of this Agreement and is expressly incorporated by reference, and by entering into this Agreement you agree to (i) all of the terms of the Privacy Policy, and (ii) Arched’s utilization of data as described in the Privacy Policy is not an actionable breach of your privacy or publicity rights.

Arched may from time to time update or revise the Privacy Policy. If Arched updates or revises the Privacy Policy, Arched will notify you either by email to your most recently provided email address, by posting the updated or revised Privacy Policy on the Site or by any other manner chosen by Arched in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with the Privacy Policy as updated or revised.

In addition, Arched may engage third parties to conduct risk control and fraud detection/prevention activities. As part of such engagements, if you initiate a transaction on the Site or through the Services, Arched may give such third parties access to your pertinent credit card and other personal information. Such third parties may only use such personal information for purposes of performing risk control and fraud detection/prevention activities for us.

However, they may also convert such personal information into hashed or encoded representations of such information to be used for statistical and/or fraud prevention purposes. By initiating any such transaction, you hereby consent to the foregoing disclosure and use of your information.

Ownership

All intellectual property rights in and to the User Content are and shall remain your property, and Arched shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.

All intellectual property rights in and to the Software, Site and Services and other Arched IP are and shall remain the sole property of Arched and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other Arched IP except as specified in this Agreement. Without limiting the foregoing, you acknowledge that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Arched and its affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Arched. You may from time to time provide Arched with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding the Services, the Software, the Site and/or any of Arched’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between the you, Arched and, if applicable, your Enterprise Subscriber, all Feedback shall be exclusively owned by Arched, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result Arched shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Enterprise Subscriber (if applicable) or any other person or entity.

Indemnity

You shall indemnify, release and hold harmless Arched and its parents, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services or Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Warranty Disclaimers

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Arched, ITS LICENSORS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES, AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, OR REGARDING SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE. YOU AGREE THAT YOUR USE OF THE SITE, SERVICES AND SOFTWARE ARE AT YOUR OWN SOLE RISK AND THAT THE SITE, SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Arched AND ITS LICENSORS AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE SITE, SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.

Limitation of Liability

IN NO EVENT SHALL Arched BE LIABLE WITH RESPECT TO THE SITE, SERVICES AND/ OR SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO Arched DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY; (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.

YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN Arched AND YOU. YOU UNDERSTAND THAT THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

CERTAIN STATES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “WARRANTY DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution by Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

a. Agreement to Arbitrate

This Section titled “Dispute Resolution By Binding Arbitration” is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Arched, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Site, Software or Services, any advertising or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Arched are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND Arched AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Arched AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).

c. Pre-Arbitration Dispute Resolution

Arched is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@archedkeyboard.com. If Arched and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Arched may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Arched or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Arched is entitled.

d. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Arched and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Arched agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Arched will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Arched will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Arched will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Finally, if the value of the relief sought is $75,000 or less, Arched will pay reasonable attorneys’ fees should you prevail. Arched will not seek attorneys’ fees from you. But, if you initiate an arbitration in which you seek more than $75,000 in relief, the payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability

Without limiting the severability provision in the Section titled “General Provisions” of this Agreement, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of clause (b) of this Arbitration Agreement is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.

h. Future Changes to Arbitration Agreement

Notwithstanding any provision in this Agreement to the contrary, Arched agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Arched written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.

General Provisions

These Terms shall be governed and construed in accordance with the laws of New Jersey, United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect.

These Terms constitute the entire agreement between us regarding the Service, and supersede and replace any prior agreements we might have had between us regarding the Service. You agree that any claim or dispute you may have against Sickk Software must be resolved exclusively by a court located in New Jersey, United States.

This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Arched. Arched may freely assign this Agreement.

If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

If Arched is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Arched), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Arched’s reasonable control (each, a “Force Majeure Event”), Arched will have no liability to you for such failure to perform; provided, however, that Arched shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any Force Majeure Event continues for more than sixty (60) days, either Arched or you may terminate this Agreement by delivery of written notice to the other party. You will remain responsible for all Fees incurred through the last day the Services were available.

If you and Arched have executed a separate Subscription Agreement applicable to your access to and use of the Site, Services and/or Software, then the terms and conditions of such Subscription Agreement shall prevail to the extent of any conflict with the terms and conditions of this Agreement. In all other cases, this Agreement constitutes the entire agreement between Arched and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Arched and you. No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party.