• Terms of Use

    Effective Date: May 1st, 2017

    Welcome to AWAKENS, Inc.’s (“Company” or “Awakens" or “we” or “our” or “us”) personal genetic information, screening and analysis service. These Terms of Use (this “Agreement”) govern your use of Awakens’ publicly accessible website (“Public Site”) and private, password-protected service (collectively including all content or support provided by Awakens, including the materials described in Section 2, “Screening Service”) accessible through Awakens’ website at http://genomicexplorer.io and http://www.awakens.tokyo (collectively, the “Service”), including your receipt and return of a Testing Kit (as defined in Section 1) and other materials to Awakens and its third party contractors in connection with the Screening Service. Please read this Agreement carefully, as it (among other things) requires in Section 15 that you and the Company arbitrate certain claims instead of going to court and restricts class action claims.

     

    Please press or click “Accept” if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at http://www.awakens.tokyo/terms-of-use. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not press “Accept,” in which case you may not use the Service.

     

    BY AGREEING TO THIS AGREEMENT AND/OR USING THE SERVICE, YOU EXPRESSLY AGREE AND ACKNOWLEDGE USE OF THE SERVICE HAS NO GUARANTEED OUTCOME OR RESULTS. AWAKENS DOES NOT PROVIDE GENETIC ANALYSIS OR REPORTS REGARDING MEDICAL DISEASES OR CONDITIONS OR TENDENCIES FOR MEDICAL DISEASES OR CONDITIONS. THE INFORMATION PROVIDED TO YOU THROUGH THE SERVICE SHOULD NOT BE RELIED UPON FOR ANY REASON WITHOUT INDEPENDENT VERIFICATION BY APPROPRIATE INDEPENDENT EXPERTS. GENETIC INFORMATION IS ONLY A PORTION OF THE RELEVANT INFORMATION FOR ASSESSING ANY GIVEN TRAIT OR LIKELIHOOD NOTED IN GENETIC TESTING. UNDER NO CIRCUMSTANCES WILL AWAKENS BE HELD RESPONSIBLE FOR ANY HARM OR LIABILITY ARISING FROM OR RELATED TO YOUR MATERIALS, YOUR USE OF THIRD PARTY PRODUCTS, OR YOUR FAILURE TO SEEK APPROPRIATE INDEPENDENT EXPERTS, REGARDLESS OF WHETHER THE FOREGOING RESULTS IN BODILY HARM, DEATH OR OTHER DAMAGE OR LIABILITY.

     

    Note for Children. Use of the Service by anyone under the age of 18 is prohibited. If you are under 18, please do not click “Accept” and please do not use the Service.

     

     

    1. Other Agreements

     

    1.1 Privacy Policy. The Company’s Privacy Policy, at http://www.awakens.tokyo/privacy-policy (the “Privacy Policy”), describes the collection, use and disclosure of data and information (including usage data) by the Company in connection with the Service. The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclosure practices set forth therein.

     

    1.2 Informed Consent. Your use of the Screening Service is subject to your submission of a properly completed Awakens’ Informed Consent for the specific Test (as defined in Section 2) ordered, a blank copy of which is available at http://www.awakens.tokyo/informed-consent (the “Informed Consent”). You should each read and understand the Informed Consent and any limitations or disclaimers that are part of the Awakens Genetic Data Report (as defined in Section 2). Awakens recommends that you speak to a genetic counselor and also with your physician or other qualified healthcare provider both prior to a Test regarding the Test, its limitations, and the physical, privacy, discrimination and other risks described in the Informed Consent and any questions you may have, and also after receiving the Awakens Genetic Data Report, regarding the Awakens Genetic Data Report and interpretation of the Awakens Genetic Data Report, and, in any event, regarding any questions you may have about any genetic traits. You are responsible for the completeness of the medical and family history provided to Awakens in connection with the Informed Consent. Users will receive genetic data from Awakens, which they can then use within the Screening Service to navigate to related non-medical genetic traits matching those found in their Awakens Genetic Data Report. Users do not receive medical results, or a diagnosis, or a recommendation for treatment from Awakens. In no way does Awakens guarantee your health, the health of an unborn child, or the health of your family members. Any Awakens Genetic Data Report that might be deemed medically actionable should be confirmed using alternative testing. If any questions or concerns arise about what is learned through the Service, patients should contact their physician and/or a genetic counselor.



    2. How it Works.

    The Public Site provides general information about Awakens and its products and research as well as publicly available genome data in our proprietary Genetic Explorer tool. The Public Site does not provide data or materials identified to specific individuals. The password-protected Screening Service offers access to genetic screening and analysis (“Test”, “Tests”) and allows users to view information related to their non-medical genetic traits based on the Test and the individual’s health history provided to us by the individual or by the individual’s healthcare provider. By providing a sample of saliva, or in some cases blood, using the collection kit (“Test Kit”) and filling out the health and family history questionnaire that we provide, we provide your genetic information in the form of raw genetic data (“Awakens Genetic Data Report”). You may also upload your own raw genetic data you already have in a format designated by the Company to Genetic Explorer. Using out Genetic Explorer on the Screening Service, you can then look up certain non-medical genetic traits indicated on your Awakens Genetic Data Report. You acknowledge and agree that the Service is provided "AS-IS" and is based on the current state of the art of genetic research and technology in use by Awakens at the time of the purchase or viewing. As research progresses and scientific knowledge and technology evolve, Awakens is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Awakens provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Awakens may stop (permanently or temporarily) providing parts of the Service (or any features within the Service) to you or to users generally at Awaken’ sole discretion, without prior notice to you. You may stop using the Service at any time. You do not need to specifically inform Awakens when you stop using the Service unless you are requesting closure of your account. Awakens assumes no responsibility for the use of Service outside the terms of this Agreement or other applicable terms.

     

     

    3. Ownership; Proprietary Rights. 

     

    3.1 User Materials. As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your User Materials, subject to the licenses granted to the Company and other Service users herein. "User Materials" means all information, data, text, software, music, audio, photographs, graphics, video, messages, or other materials - other than Genetic Information and Self-Reported Information (as both terms are defined in Section 3.3 below) - generated by users of the Services and transmitted, whether publicly or privately, to or through the Service.

     

    3.2. Company Materials; Feedback. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the software and technology used by the Company to provide Service features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. If you provide Company with any ideas, feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Company all right, title and interest in and to such Feedback and acknowledge that Company shall have the right to exploit such Feedback and related information in any manner it deems appropriate on a worldwide, perpetual basis without payment of any compensation to you.

     

    3.3 Genetic and/or Self-Reported Information. Any disclosure of individual-level Genetic and/or Self-Reported Information to third parties will be in accordance with our Privacy Policy. Note that we cannot control any further distribution of Genetic and/or Self-Reported Information to the extent that that you share it on the Public Site or otherwise. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that we have no obligation to do so on your behalf. "Genetic Information" is information regarding your genotype, generated through processing of your Test Kit by us or by our contractors, successors, and assignees; or otherwise processed by and/or contributed to us. "Self-Reported Information" is all information about yourself, including health-related information, personal traits, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your Service account or as provided in connection with your Informed Consent.

    Your Test Kit, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. See our website for more information on sample processing. Any Genetic Information derived from your Test Kit remains your information, subject to rights we retain as set forth in this Agreement. You understand that you should not expect any financial benefit from us as a result of having your Genetic Information processed; made available to you; or, as provided in our Privacy Policy and this Agreement, shared with or included in Aggregated Genetic and Self-Reported Information shared with research partners, including commercial partners. "Aggregated Genetic and Self-Reported Information" is Genetic and Self-Reported Information that has been combined with that of other users and analyzed or evaluated as a whole, such that no specific individual may be reasonably identified.

     

    3.4 Waiver of Property Rights. As stated above, you understand that by providing any sample, having your Genetic Information processed, accessing your Genetic Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by us or our collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Genetic Information or Self-Reported Information. Notwithstanding the foregoing, we may from time to time offer a paid research platform (“Paid Research Platform”). Our Paid Research Platform will require your specific consent and may contain additional terms and conditions. If you provide such consent and agree to such additional terms and conditions, you may be eligible for certain financial compensation in connection therewith.

     

     

    4. User Materials.

     

    4.1 You understand that all User Materials residing on the Service are available only on an “as-available” basis and the Company does not guarantee that the availability of the Service will be uninterrupted or bug free. You agree you are responsible for all of your User Materials and all activities that occur under your user account. Some or all of your User Materials may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your User Materials may be removed if the Company determines (in its sole discretion) that their content is inappropriate or if they are the subject of flagging by other Service users.

     

    4.2 Subject to your ownership rights in your User Materials referenced in Section 3.1, you hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable, and transferable license to use, sell, reproduce, distribute, prepare derivative works of, display, perform, and otherwise exploit your User Materials in connection with the Service and Awakens’ (and its successor’s) business, including without limitation for purposes of developing, improving and testing Awakens’ algorithms, products and services in any media formats and through any media channels. User Materials you submit to Third-Party Services (as defined in Section 9) through the Service are subject to the terms and conditions of the applicable Third-Party Service.

     

    4.3 In connection with your User Materials, you further agree that you will not use, create, provide or post: (i) material that violates the community guidelines that Awakens may adopt and post from time to time; (i) material that is subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) material that is false, unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any User Materials does not conform to this Agreement and may determine in good faith and in its sole discretion whether to remove such User Materials, which it reserves the right to do at any time.

     

     

    5. Prohibited Uses. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may only use Awakens Genetic Data Report for the purpose of your own non-commercial use in accordance with this Agreement and shall neither use it for your own commercial use nor copy, sell, provide, incorporate or otherwise use it for third parties regardless of commercial or non-commercial purpose. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party). By using the Service, you represent and warrant that: (i) you are not located in any 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

     

     

    6. No Medical Advice.

     

    6.1 The Service and the Genetic Information provided by Awakens are for research, informational, and educational use only. We do not provide medical advice. Many of the genetic discoveries that we report have not been clinically validated, and the technology we use, which is the same technology used by the research community, to date has not been widely used for clinical testing. The Service is not intended to be used by the customer for any medical diagnostic purpose. You should always seek the advice of your physician or other health care provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.

     

    6.2 Awakens does not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, tests, physician or other health care providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on the Service. If we provide to you on the Service any recommendations that identify for you, based on your Genetic and Self-Reported Information and scientific literature or research, potentially actionable information, this information is intended for informational purposes only and for discussion with a genetic counsellor and/or healthcare provider. Awakens believes that (a) genetics is only part of the picture of any individual's state of being, and (b) the state of the understanding of Genetic Information is rapidly evolving and at any given time we only comprehend part of the picture of the role of genetics. Reliance on any information provided by Awakens, Awakens employees, others appearing on the Service at the invitation of Awakens, or other visitors to our website is solely at your own risk.

     

     

    7. Your Representations. By accessing the Service, you agree to, acknowledge, represent, warrant and covenant to Awakens as follows:

     

    7.1 You understand that information you learn through the Service is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health. You understand that the Service is intended for research, informational, and educational purposes only, and that provided information should always be confirmed and supplemented by additional testing and information. You acknowledge that we urge you to seek the advice of your physician or other health care provider if you have questions or concerns arising from your Genetic Information.

     

    7.2 You give permission to Awakens, its contractors, successors and assignees to perform genotyping services on the DNA extracted from your Test Kit and you specifically request Awakens to disclose the results of analyses performed on your DNA to you and to others you specifically authorize.

     

    7.3 You represent that you are eighteen (18) years of age or older if you are providing a saliva or blood (as applicable) sample or accessing your Genetic Information

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    7.4 You are guaranteeing that any sample you provide is your saliva or blood (as applicable); if you are agreeing to this Agreement on behalf of a person for whom you have legal authorization, you are confirming that the sample provided will be the sample of that person.

     

    7.5 If you are a customer outside the U.S. providing a saliva or blood (as applicable) sample, you confirm that this act is not subject to any export ban or restriction in the country in which you reside.

     

    7.6 You agree that any saliva or blood (as applicable) sample you provide and all resulting data may be transferred and/or processed outside the country in which you reside.

     

    7.7 You are warranting that you are not an insurance company or an employer attempting to obtain information about an insured person or an employee.

     

    7.8 You are aware that some of the information you receive may provoke strong emotion.

     

    7.9 You take responsibility for all possible consequences resulting from your sharing with others access to your Genetic Information and your Self-Reported Information.

     

    7.10 You understand that all your Personal Information will be stored in Awakens databases and will be processed in accordance with the Awakens Privacy Policy.

     

    7.11 You understand that by providing any sample, having your Genetic Information processed, accessing your Genetic Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Awakens or its collaborating partners. You specifically understand that, except as described in Section 3.4, you will not receive compensation for any research or commercial products that include or result from your Genetic Information or Self-Reported Information.

     

    In case of breach of any one of these representations Awakens has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) and you will defend and indemnify Awakens and its affiliates against any liability, costs, or damages arising out of the breach of the representation.

     

     

    8. Third-Party Products and Sites. The Service may include references to certain third party products. The Service may also include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party products, sites and services, or products or services made available through such third party sites and services, or your use of or interaction with such third party sites or services.

     

     

    9. Third-Party Services. The Service may include features or functionality that interoperate with online services operated by third parties such as Facebook (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Service in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.

     

     

    10. Fees and Payments.

     

    10.1 We do not bill insurance providers and your Test may not be reimbursed by health insurance or covered by HMOs. You are personally responsible for 100% of the costs of the Service. All fees are in U.S. Dollars. If you pay with a credit card, we our Payment Processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the fees. Tests may not be cancelled once laboratory processing has commenced. Any orders canceled in writing prior to lab processing, may be cancelled, though you may still be charged certain fees, such as a charge for the Test Kit value and shipping cost. We are not obligated to issue any refunds, but any refund for a purchase made on a credit will be made on the purchasing credit card.

     

    10.2 Payment processing for the Service is provided by such third party payment processor as Company may utilize from time to time (“Payment Processor”), and in order to utilize certain aspects of the Service you will be required to agree to certain Payment Processor terms and conditions. Company does not collect or store your credit card information. You can find out more about both our privacy practices and our Payment Processor’s privacy practice in our Privacy Policy and the links therein. By providing a credit card or other payment method accepted by the Company, you represent and warrant that you are authorized to use the designated payment method and that you authorize our Payment Processor to charge your payment method for the total amount of your transaction and any applicable fees (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended or cancelled. You must resolve any problem we or our Payment Processor encounters in order to proceed with your use of your account.

     

    10.3 You acknowledge that by entering into this Agreement, you are also entering into the separate agreements referenced in Section 10.1 directly with our Payment Processor, that Company is not a party to such separate agreements and that Company is not an affiliate of our Payment Processor. You acknowledge and agree that Company does not control our Payment Processor or its performance of payment processing services, and that Company shall have no liability of any kind for any act or omission (including negligence) of our Payment Processor or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by you in relation to the performance or non-performance of payment processing services by our Payment Processor, other than to the extent to which any of the foregoing may arise from the gross negligence or willful misconduct of Company.

     

     

    11. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account through the Service user interface. If you are for any reason unable to delete your account through the Service user interface, you may also send us a request for deletion of your account to info@awakens.tokyo. Such requests will be honored within a reasonable time period after they have been received, provided that you give us all reasonably necessary information and cooperation. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your use of the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third party for any such termination. Sections 3–16 and 18-21 will survive any termination of this Agreement.

     

     

    12. Disclaimers; No Warranties. THE SERVICE AND ANY USER MATERIALS, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

     

     

    13. Indemnification; Hold Harmless. You agree to indemnify and hold the Company and its affiliates, officers, directors, employees, agents, and third-party partners and suppliers harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to (a) your use or misuse of the Service or any third party product or service; (b) your violation of this Agreement; (c) infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity; or (d) (i) the use or disclosure of any information obtained from genotyping your saliva or blood (as applicable) sample and/or analyzing your Genetic Information, or (ii) disclosure or use of your Genetic and/or Self-Reported Information by us, in each case in accordance with this Agreement and our Privacy Policy, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own 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.

     

     

    14. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED FIFTY U.S. DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

     

     

    15. Arbitration.
     

    15.1 Agreement to Arbitrate. This Section 15 is referred to herein as the “Arbitration Agreement.” The parties agree that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

     

    15.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY 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 PARTIES 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).

     

    15.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the 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, including without limitation, the limitation of liability provisions in Section 14. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.

     

    15.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.

     

    15.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.

     

    15.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.

    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.

     

    15.7 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 15.2 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 Section 15.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.

     

     

    16. Claims. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

     

     

    17. Changes to Agreement. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.

     

     

    18. Electronic Communications. When you communicate with the Company through the Service or send us e-mail, you are communicating with us electronically. You hereby: (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.

     

     

    19. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 15 shall be filed only in the state or federal courts in Essex County, Massachusetts and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not (except as otherwise set forth in Section 15.8) affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.

     

     

    20. Contact Information. The Service is provided by Awakens, Inc. If you have any questions, complaints or claims with respect to the Service, you may contact Awakens at info@awakens.tokyo.

     

     

    21. California Residents. Company is located at 499 Illinois St #210, San Francisco, CA 94158. 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.