Terms and Conditions – Tipping Point

TPOSOLUTIONS TERMS OF USE

These Terms of Use (“Terms”) are a legal contract between you (“you”) and Tipping Point Orthodontics (“TPOSolutions”, “us”, “our” or “we”) and govern your use of all the text, data, information, video, graphics, photographs and other materials (collectively referred to as “Materials”) that we and our affiliates may make available to you through any area of the Website accessible at https://tippingpointortho.com (the “Website”), and any services we may provide through the Website (“Services”).

READ THESE TERMS CAREFULLY BEFORE BROWSING THE WEBSITE OR USING OUR SERVICES. USING THE WEBSITE OR ANY SERVICES INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE TERMS. YOU CANNOT USE THE WEBSITE OR OUR SERVICES IF YOU DO NOT ACCEPT THESE TERMS.

NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH TPOSOLUTIONS. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

CHANGES.

We may alter the Materials and Services we offer you and/or may choose to modify, suspend or discontinue any part or all of the Website or Services at any time and without notifying you. We may also change, update, add or remove provisions of these Terms from time to time. We will use commercially reasonable efforts to inform you of any modifications to these Terms by posting them on the Website.

If you object to any such modifications, your sole recourse shall be to cease using the Website, Materials and Services. Continued use of the Website, Materials and/or Services following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Website or on the sites of our partners. Such expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.

GENERAL USE.

By using the Website, you agree that you are at least 18 years of age and, if you wish to view our training courses and use of related materials, that you are a licensed dental professional.

Subject to your compliance with these Terms, including your payment of any applicable fees, we grant you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials. You have no other rights in the Website or any Materials and you may not modify, edit, copy, reproduce, publicly display, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Website or any of the Materials in any manner.

Unfortunately, if you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).

USING THE WEBSITE.

You need not register with us to simply visit and view the Website. However, in order to access certain password-restricted areas and Materials, you must have registered for an account with us. If you want an account with us, you must submit all of the information required on the account registration page on the Website. Once you submit the required registration information, we will determine whether or not to approve your proposed account. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly.

You are responsible for complying with these Terms when you access and use the Website and for obtaining and maintaining all equipment and services needed for you to access and use the Website and paying related charges. It is also your responsibility to maintain the confidentiality of your password. Should you believe your password or security for the Website has been breached in any way, you must immediately notify us.

You acknowledge and agree that the Website, Materials and Services offered by TPOSolutions are not intended nor should they be construed as the furnishing of any medical, dental or healthcare services. While the Website and Materials provide information about certain dental procedures, no patient/provider relationship is intended to or will be created between TPOSolutions and any of your patients. In performing dental services, you shall exercise independent professional clinical judgment. The Website, Materials and Services are intended solely for education and professional innovation exchange between licensed professionals. TPOSolutions shall not exercise any control over matters of your practice involving the exercise of professional clinical judgment.

The rendition of all licensed dental services shall be your sole responsibility. You shall be solely responsible for ensuring compliance with applicable laws and regulations in the use of the Website and Materials, including but not limited to state or provincial licensing laws and regulations, state or provincial scope of practice, the provision of dentistry services in accordance with professional standards, informed consent for treatment, and the establishment of a dentist/patient relationship. You shall obtain any and all federal, state, provincial and local licenses and certifications which may be required to practice your profession and you shall maintain malpractice and liability insurance in compliance with any applicable state, provincial or local requirements. TPOSolutions maintains general comprehensive liability insurance but is not a provider of healthcare services and therefore does not maintain any professional liability insurance coverage.

PAYMENTS.

You agree to pay any fees applicable to your use of the Website, Materials or Services, including but not limited to charges applicable to your purchases. We may suspend or terminate your access to the Website, Materials and/or Services if your offered payment method (e.g., credit card) cannot be processed. By providing a payment method, you expressly authorize us and/or our third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto, all of which depend on the services you utilize and the products you purchase. Except as otherwise specified in these Terms or on the Website (a) fees are quoted and payable in United States dollars, (b) fees are based on services purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable You agree that we may charge any unpaid amounts to your provided payment method and/or send you a bill for such unpaid fees.

ELECTRONIC COMMUNICATIONS.

By using the Website and/or the Materials, you consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website, Services and/or Materials. These electronic communications also include promotional offers and marketing communications that you may have separately consented to receive (where such consent may be required). These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. These electronic communications are subject to these Terms, including their applicable dispute resolution and limitation of liability provisions.

We respect the information that you provide to us and want to be sure you fully understand exactly how we use that information. Please review our privacy policy (“Privacy Policy”), [ https://tippingpointortho.com/privacy-policy-2/] which explains how we collect and use personal information.

LINKS TO THIRD-PARTY SITES.

We think links are convenient, and we sometimes provide links on the Website to third-party websites. If you use these links, you will leave our Website. We are not obligated to review any third-party websites that you link to from the Website, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Therefore, unless specifically stated on the Website, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the Website, you do so entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites.

SUBMISSIONS.

Certain areas of the Website may permit you to upload or submit feedback, information, images, data, text, software, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.

By submitting any User Submission, you are promising us that:

You own all rights in your User Submission (including, without limitation, all rights to the reproduction and display of your User Submission) or, alternatively, you have acquired all necessary rights in your User Submission to enable you to grant to us the rights in your User Submission as described in these Terms;
To the extent that any personally identifiable information about any individual is shared in any User Submission, you have obtained all required authorizations or consents from all applicable individuals relating to the sharing of personally identifiable information in any User Submission.
You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submission;
Your User Submission do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
Use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
Display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.

We may, but are not obligated to, pre-screen User Submissions or monitor any area of the Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.

UNAUTHORIZED ACTIVITIES.

To be clear, we authorize your use of the Website and Materials only for individual, educational purposes (“Permitted Purposes”). Any use of the Website or Materials beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use. This is because as between you and TPOSolutions, all rights in the Website and Materials remain our property.

Unauthorized use of the Website and/or Materials may result in violation of various United States and international copyright laws. Unless you have written permission from us stating otherwise, you are not authorized to use the Website or any Materials in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):

For any public or commercial purpose which includes use of the Materials on another site or through a networked computer environment;
In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Website;
In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
To stalk, harass, or harm another individual;
To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
To interfere with or disrupt the Website or servers or networks connected to the Website;
To use any data mining, robots, or similar data gathering or extraction methods in connection with the Website; or
To attempt to gain unauthorized access to any portion of the Website or any other accounts, computer systems, or networks connected to the Website, whether through hacking, password mining, or any other means.

You agree to indemnify and hold TPOSolutions and its officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Website and/or Materials, your violation of these Terms or your violation of any rights of another. You alone are responsible for any violation of these Terms by you or by anyone using your account. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.

PROPRIETARY RIGHTS.

The trademarks, service marks, and logos of TPOSolutions and our affiliates (“Our Trademarks”) used and displayed on various parts of the Website are registered and unregistered trademarks or service marks of TPOSolutions. Other company, product, and service names located on the Website may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Our Trademarks, the “Trademarks”). Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Our Trademarks inures to our benefit.

Unless otherwise specified in these Terms, all Materials, including the arrangement of them on the Website are our sole property, or the property of our suppliers and licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

INTELLECTUAL PROPERTY INFRINGEMENT.

We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Submissions and other materials that violate intellectual property rights of others, suspending access to the Website (or any portion thereof) to any user who uses the Website in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Website in violation of someone’s intellectual property rights.

Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Website, please provide written notice to our agent for notice of claims of infringement:

info@tippingpointortho.com

To be sure the matter is handled immediately, your written notice must:

Contain your physical or electronic signature;
Identify the copyrighted work or other intellectual property alleged to have been infringed;
Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
Contain a statement that the information in the written notice is accurate; and
Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.

Unless the notice pertains to copyright or other intellectual property infringement, the agent will be unable to address the listed concern.

Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our agent with a written counter-notification that includes the following information:

1. Your physical or electronic signature;

2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers

We reserve the right, in our sole discretion, to terminate the account or access of any user of the Website who is the subject of repeated DMCA or other infringement notifications.

DISCLAIMER OF WARRANTIES.

THE WEBSITE, MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO THEIR USE IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE WEBSITE, MATERIALS AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE WEBSITE, MATERIALS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE WEBSITE WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, MATERIALS AND SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OR SERVICES OBTAINED THROUGH THE USE OF THE WEBSITE, AND ARE NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.

LIMITATION OF LIABILITY.

YOU ARE USING THE WEBSITE, MATERIALS, PRODUCTS AND SERVICES AT YOUR SOLE RISK. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, SUBMITTING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE WEBSITE OR YOUR USE OF OUR SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RESULTING FROM LOSS OF DATA, REVENUE, PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, USE, OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. TPOSOLUTIONS IS NOT RESPONSIBLE FOR AND ASSUMES NO LIABILITY WHATSOEVER FOR ANY INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY USE OR RELIANCE ON THE TPOSOLUTIONS WEBSITE, MATERIALS OR SERVICES.

LOCAL LAWS; EXPORT CONTROL.

We control and operate the Platform from our headquarters in the United States of America and the entirety of the Website may not be appropriate or available for use in all jurisdictions. If you use the Website (or any portion thereof), you are solely responsible for following applicable local laws.

FEEDBACK.

Any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback, and hereby represent that you have obtained all required consents or authorizations to allow TPOSolutions to obtain all rights, title and interest in and to the Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

Please read the following Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) carefully. It affects your rights.

Please read this Provision carefully. It provides that all Disputes (as defined below) between you and TPOSolutions shall be resolved by binding arbitration. Arbitration is a form of private dispute resolution and replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).

For purposes of this Provision, “TPOSolutions” means Tipping Point Orthodontics and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and TPOSolutions regarding, arising out of or relating to any aspect of your relationship with TPOSolutions, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as TPOSolutions’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

YOU AND TPOSOLUTIONS EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give TPOSolutions an opportunity to resolve the Dispute. You must commence this process by emailing us written notification at: drhopkinsortho@gmail.com. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If TPOSolutions does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or TPOSolutions may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by emailing us written notification at: drhopkinsortho@gmail.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with TPOSolutions through arbitration. Your decision to opt-out of this Provision will have no adverse effect on your relationship with TPOSolutions. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or TPOSolutions may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.

Because the Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or TPOSolutions may initiate arbitration in either Lexington County, South Carolina or the federal judicial district that includes your billing address. However, if TPOSolutions initiates the arbitration in Lexington County, you shall have the right to have the arbitration transferred to the AAA or JAMS office within the judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – TPOSolutions will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with TPOSolutions as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and TPOSolutions specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

No Judge or Jury in Arbitration

Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms you and TPOSolutions are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and TPOSolutions might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your service with TPOSolutions or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if TPOSolutions makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require TPOSolutions to adhere to the present language in this Provision if a dispute between us arises.

General.

We prefer to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by us, may result in immediate termination of your access to the Website and Services without prior notice to you. The Federal Arbitration Act, South Carolina state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Website will be heard in the courts located in Lexington County in the State of South Carolina. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Our failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and TPOSolutions and supersede all prior or contemporaneous negotiations, discussions or agreements between you and TPOSolutions about the Website. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at info@tippingpointortho.com.