SPARROW SEARCH, INC.
TERMS OF USE AGREEMENT
Last Updated Date: September 27, 2024
Welcome and thank you for your interest in Sparrow Search, Inc. (“Sparrow Search”, “we”, “us” or “our”). Please read this Terms of Use Agreement (“Terms”) carefully. These Terms describe the terms and conditions that apply to your use of the website located at https://sparrowsearch.health/ and its subdomains and any of Sparrow Search’s other websites on which a link to these Terms appears (collectively, the “Website”), Sparrow Search’s online clinical trial search tool, and the other services, content, and resources provided by Sparrow Search that are available on or enabled via our Website (collectively, with our Website, the “Services”).
Your use of the Services may be subject to any additional terms, conditions, and policies that we separately post on the Services and any agreements that you have separately executed with Sparrow Search (“Supplemental Terms”), which are incorporated by reference into these Terms (together, the “Agreement”). To the extent there is any conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control with respect to the Services or feature to which the Supplemental Terms relate.
Please refer to our Privacy Policy, available at https://info.sparrowsearch.health/privacy-policy/ for information about how we collect, use, and share personal information about users.
ACCEPTANCEBY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (ii) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SPARROW SEARCH, AND (iii) YOU ARE NOT BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS, AND UPDATES TO THE AGREEMENT
SECTION 14 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND SPARROW SEARCH. AMONG OTHER THINGS, SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 14 CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 14) WITHIN THIRTY (30) DAYS: (A) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (B) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
THE AGREEMENT IS SUBJECT TO CHANGE BY SPARROW SEARCH IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 15.4 (AGREEMENT UPDATES)
1. USE OF THE SERVICES.1.1 The Services. The Services provide a platform to connect individuals with clinical trials through Sparrow Search’s clinical trial search tool. Through the Services, you will be able to submit answers to a questionnaire, which may include questions regarding your medical history (the “Clinical History Questionnaire”) and receive in response a personalized list of clinical trials for which you may be eligible (“Eligible Trials”). Once you select the clinical trial(s) you would like to participate in and agree to be connected, Sparrow Search may contact the selected clinical trial site(s) (each a “Trial Site”) on your behalf. Please note that Sparrow Search does not provide any professional healthcare services, and Sparrow Search is not a medical professional or licensed clinical provider.
1.2 Clinical History Updates. You acknowledge that Sparrow Search will keep a copy of all answers you provide to the Clinical History Questionnaire. You agree to update such answers if there are any changes to your clinical history in order for Sparrow Search to provide an updated list of Eligible Trials.
1.3 Sparrow Search Only Provides a Venue. While Sparrow Search may provide information through our Services regarding clinical trials or Trial Sites, such features are solely informational, and we do ot make any guarantees regarding clinical trials, your eligibility for any clinical trials, or that any Trial Site will be able to enroll you in a specific trial. Sparrow Search makes no representations about the suitability, reliability, timeliness, or accuracy in public, private, or offline interactions.
1.4 Disclaimers for Trial Site Services. WE DO NOT HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY ASPECT WHATSOEVER OF ANY CLINICAL TRIALS, PRODUCTS, OR OTHER SERVICES PROVIDED BY TRIAL SITES. ANY TREATMENT OR MEDICAL ADVICE IS PROVIDED BY A TRIAL SITE, NOT BY SPARROW SEARCH, AND YOU ACCEPT SUCH SERVICES AT YOUR OWN RISK. TRIAL SITES AND ANY ASSOCIATED MEDICAL PROFESSIONALS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, OR AGENTS OF SPARROW SEARCH. SPARROW SEARCH DOES NOT PERFORM MEDICAL SERVICES AND DOES NOT EMPLOY OR ENGAGE TRIAL SITES TO PERFORM SUCH OBLIGATIONS. YOU HEREBY ACKNOWLEDGE THAT SPARROW SEARCH DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR MEDICAL SERVICES RENDERED BY A TRIAL SITE. THE SERVICES DO NOT PROVIDE MEDICAL DIAGNOSIS, ADVICE, OR TREATMENT, AND THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. OUR SERVICES SHOULD NEVER BE USED FOR MEDICAL EMERGENCIES, URGENT SITUATIONS, OR INSTANCES WHERE SOMEONE MAY BE IN DANGER OR REQUIRE IMMEDIATE ASSISTANCE. IF YOU ARE EXPERIENCING ANY KIND OF EMERGENCY, YOU SHOULD CALL 911 IMMEDIATELY.
1.5 Rights to use the Services. The Services and the information and content available on the Services are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Sparrow Search, your right to access and use the Services, in whole or in part, is subject to this Agreement. Sparrow Search, its suppliers, and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Sparrow Search pursuant to the Agreement.
1.6 Updates. You understand that the Services are evolving. You acknowledge and agree that Sparrow Search may update the Services with or without notifying you. Any future release, update, or other addition to the Services shall be subject to this Agreement.
1.7 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Sparrow Search will have no obligation to provide you with any support or maintenance in connection with the Services. As between us and you, you are solely responsible for any fees, including Internet connection, that you incur when accessing the Services.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Services, you may be required to register an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) your name, an e-mail address, and password.
2.2 Registration Data. In registering an Account on the Services, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”) and the Clinical History Questionnaire, and (ii) maintain and promptly update the Registration Data and Clinical History Questionnaire to keep it true, accurate, current, and complete.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Sparrow Search. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to notify Sparrow Search immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Sparrow Search has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Sparrow Search has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account at any given time. Sparrow Search reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Sparrow Search, or if you have been previously banned from any of the Services.
3. USER CONTENT.
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third-party. You hereby represent and warrant that your User Content does not violate Section 6. You further represent that you own and/or have all rights necessary to grant us the license to your User Content as set forth in Section 3.2 below. You may not represent or imply to others that your User Content is in any way provided, sponsored, or endorsed by Sparrow Search. Because you are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 6. Sparrow Search is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Sparrow Search an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to use, license, reproduce, modify, adapt, translate, and create derivative works from, your User Content for purposes of providing, supporting, enhancing, and improving the Services, and to share you User Content with Trial Sites in accordance with the features and functionality of the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4. OWNERSHIP.
4.1 The Services. Excluding any User Content that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Sparrow Search or Sparrow Search’s suppliers. Neither the Agreement (nor your access to the Services) transfers to you or any third-party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. Sparrow Search and its suppliers reserve all rights not granted in the Agreement. There are no implied licenses granted under the Agreement.
4.2 Trademarks. Sparrow Search’s name and all related stylizations, graphics, logos, service marks and trade names used on or with the Services are the trademarks of Sparrow Search and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Sparrow Search through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Sparrow Search has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Sparrow Search a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, isplay, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Sparrow Search’s business.
5. SPARROW SEARCH COMMUNICATIONS.
5.1 E-mail. You may have the opportunity to provide us with your e-mail address. By providing your e-mail address to us, you consent to receive e-mail communications from Sparrow Search. E-mail communications from Sparrow Search may include communications about the Services and other offers.
5.2 Electronic Communications. The communications between you and Sparrow Search may take place via electronic means, whether you visit the Services or send Sparrow Search emails, or whether Sparrow Search posts notices on the Services or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Sparrow Search in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sparrow Search electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
6. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Services or any other portion of the Services (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Sparrow Search’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (vii) impersonate any person or entity, including any employee or representative of Sparrow Search; (viii) interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services; or (ix) take any action or make available any User Content on or through the Services that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Sparrow Search’s prior written consent. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Services terminates the licenses granted by Sparrow Search pursuant to this Agreement.
7. INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT. Sparrow Search may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or content, including User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content, including without limitation chat, text, or voice communications.
Without limiting the foregoing, Sparrow Search reserves the right to: (i) remove any User Content for any or no reason in our sole discretion; (ii) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Sparrow Search; (iii) disclose your identity or other information about you to any third-party who claims that material provided by you violates their rights, including their intellectual property rights or their right to privacy; (iv) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if Sparrow Search otherwise believes that criminal activity has occurred; and/or (v) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Sparrow Search, may, at its sole discretion immediately terminate your license to use the Services, or change, alter, or remove User Content, in whole or in part, without prior notice to you.
If Sparrow Search believes that criminal activity has occurred, Sparrow Search reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including User Content, in Sparrow Search’s possession in connection with your use of the Services, to(A) comply with applicable laws, legal process or governmental request, (B) enforce this Agreement, (C) respond to any claims that User Content violates the rights of third parties, (D) respond to your requests for customer service, or (E) protect the rights, property, or personal safety of Sparrow Search, its users or the public, and all enforcement or other government officials, as Sparrow Search in its sole discretion believes to be necessary or appropriate.
8. THIRD-PARTY SERVICE. The Services may contain links or references to third-party websites or services or otherwise be used to connect you with third party Trial Sites for clinical trials and related services (such third-party sites, services, trials, and products are collectively, the “Third-Party Services”). Such Third-Party Services are not under the control of Sparrow Search. Sparrow Search is not responsible for any Third-Party Services. Sparrow Search provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
9. INDEMNIFICATION. You shall indemnify and hold Sparrow Search, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) your User Content; (ii) your use of, or inability to use, the Services; (iii) your violation of this Agreement; (iv) your violation of any rights of another party, including any user; or (v) your violation of any applicable laws, rules or regulations. Sparrow Search reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Sparrow Search in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Services.
10. DISCLAIMER OF WARRANTIES.
10.1 Generally. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED “AS IS” FOR GENERAL INFORMATION ONLY, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. SPARROW SEARCH EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) SPARROW SEARCH MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES); (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
10.2 Not Medical Services. THIS SERVICES DO NOT OFFER MEDICAL ADVICE OR RECOMMENDATIONS, AND YOU SHOULD NOT RELY ON THE INFORMATION MADE AVAILABLE
THROUGH THE SERVICES AS A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED MEDICAL PROFESSIONALS WHO ARE FAMILIAR WITH YOUR SPECIFIC MEDICAL NEEDS. IN NO EVENT WILL SPARROW SEARCH OR ANY CONTRIBUTORS OF INFORMATION TO THE SERVICES BE LIABLE FOR ANY DECISION OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH INFORMATION. SPARROW SEARCH STRONGLY RECOMMENDS THAT CARE AND TREATMENT DECISIONS RELATED TO ANY MEDICAL CONDITION BE MADE IN CONSULTATION WITH A PATIENT’S PHYSICIAN OR OTHER QUALIFIED MEDICAL PROFESSIONALS.
10.3 No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICES AND ANY TRIAL SITES. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND TRIAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SPARROW SEARCH MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES AND TRIAL SITES WILL MEET YOUR REQUIREMENTS.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SPARROW SEARCH BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR PARTICIPATE IN ANY THIRD PARTY CLINICAL TRIAL, EVEN IF SPARROW SEARCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. THE FOREGOING IMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE;
OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN $200; OR IF APPLICABLE, THE
STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 User Content. SPARROW SEARCH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT
NOT LIMITED TO, USER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPARROW SEARCH AND YOU.
12. TERM AND TERMINATION.
12.1 Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement.
12.2 Termination. Sparrow Search has the right to suspend or terminate the function or existence of all or any part of the Services and/or your Account at any time, and without notice as it deems advisable, including where you violate this Agreement, as required by law, or due to security or welfare concerns. To the extent permitted by applicable law, Sparrow Search shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations. You may terminate this Agreement, your Account or your access to the Services at any time, for any reason by sending an email to: support@sparrowsearch.health.
12.3 Effect of Termination. Termination of your Account includes removal of access to the Services and barring of further use of the Services and also includes deletion of your password and all related information, files and data associated with or inside your Account (or any part thereof), including your User Content. Upon termination of your Account, your right to use the Services will automatically terminate immediately. You understand that any termination of your Account may involve deletion of User Content associated therewith from our live databases. All provisions of this Agreement which by their nature should survive, shall survive termination of your Account, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. INTERNATIONAL USERS. The Services may be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Sparrow Search intends to announce such service or content in your country. The Services are controlled and offered by Sparrow Search from its facilities in the United States of America. Sparrow Search makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. Sparrow Search reserves the right to limit the provision of the Services to any person or geographic location.
14. ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Sparrow Search and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Sparrow Search agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Sparrow Search say assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Sparrow Search may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes hat arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
14.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Sparrow Search. If that occurs, Sparrow Search is committed to working with you to reach a reasonable resolution. You and Sparrow Search agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Sparrow Search therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer elephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Sparrow Search that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@sparrowsearch.health or regular mail to our offices located at 311 East 11th Street, Unit 4E, New York, NY 10003. The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3 Waiver of Jury Trial. YOU AND SPARROW SEARCH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF
A JUDGE OR A JURY. You and Sparrow Search are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4 Waiver of Class and Other Non-Individualized Relief. YOU AND SPARROW SEARCH AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 14.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 14.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Sparrow Search agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Sparrow Search from participating in a class-wide settlement of claims.
14.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Sparrow Search agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (A) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (B) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (C) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Sparrow Search otherwise agree, or the Batch Arbitration process discussed in Section 14.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Sparrow Search agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 14.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
14.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to Section 14.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 14.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 14.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in Section 14.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 14.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the ward is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Sparrow Search need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Sparrow Search agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Sparrow Search by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Sparrow Search.
You and Sparrow Search agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Sparrow Search, 311 East 11th Street, Unit 4E, New York, NY 10003, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.11 Invalidity, Expiration. Except as provided in Section 14.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Sparrow Search as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Sparrow Search makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Sparrow Search at 311 East 11th Street, Unit 4E, New York, NY 10003, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Sparrow Search will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
15. GENERAL PROVISIONS.
15.1 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Sparrow Search’s prior written consent. Sparrow Search may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.2 Force Majeure. Sparrow Search shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.3 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@sparrowsearch.health. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.4 Agreement Updates. When changes are made, Sparrow Search will make a new copy of these Terms and/or Supplemental Terms, as applicable, available on the Services, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes to the Terms, we may (and, where required by law, will) also provide notification of such changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account or another manner through the Services (which may include posting an announcement on the Website). Sparrow Search may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICES.
15.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Sparrow Search agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
15.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK,
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
15.7 Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
15.8 Notice. Where Sparrow Search requires that you provide an email address, you are responsible for providing Sparrow Search with a valid and current email address. In the event that the email address you provide to Sparrow Search is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Sparrow Search’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Sparrow Search at the following address: 311 East 11th Street, Unit 4E, New York, NY 10003. Such notice shall be deemed given when received by Sparrow Search by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
15.11 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (I) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Sparrow Search are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Sparrow Search products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.12 Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.