BY 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 AT LEAST EIGHTEEN (18) YEARS OLD; (iii) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES; AND (iv) WITH RESPECT TO MAKING PURCHASES ON THE SITE, YOU ARE A PRACTICING PHYSICIAN WITH A VALID NATIONAL PROVIDER IDENTIFIER (“NPI”) NUMBER AND/OR YOU ARE AUTHORIZED BY, AND ACTING AS AN AGENT ON BEHALF OF, A PRACTICING PHYSICIAN WITH A VALID NPI NUMBER. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR, AS APPLICABLE, THE ENTITY AND/OR PHYSICIAN THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY AND/OR PHYSICIAN, SUCH INDIVIDUAL AND SUCH ENTITY (AS APPLICABLE) AGREE THAT: (i) THE TERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY (AS APPLICABLE) AND SUCH INDIVIDUAL; AND (ii) THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY OR PHYSICIAN.
SECTION 13 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT IF YOU DESIRE TO DO SO.
- ACCESS TO THE SERVICE
- Access and Use. Subject to this Agreement, Celularity grants you a non-transferable, non-exclusive, revocable, limited right to access and use the Services solely for your own internal business use.
- Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other Celularity content (including images, text, page layout or form) of Celularity; (c) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (d) access or use the Services in order to build a similar or competitive website, product, or service; (e) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Services, except as expressly permitted herein; (f) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (g) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (h) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (i) impersonate any person or entity, including an authorized physician, or any employee or representative of Celularity; (j) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (k) use the Services in violation of any law, regulation, or obligations or restrictions imposed by any third party, or in a manner that is otherwise objectionable; (l) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (m) abuse other users’ personal information that you receive or access through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (n) interfere with any other user’s use and enjoyment of the Services; and (o) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site 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, subject to the parameters set forth in our robots.txt file). Unless otherwise indicated, any future release, update, or other addition to the functionality of the Services shall be subject to this Agreement. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
- Celularity reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Celularity will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
- No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Celularity will have no obligation to provide you with any support or maintenance in connection with the Site or Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
- You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Celularity or Celularity’s suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.1. Celularity and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
- REGISTRATION AND ACCOUNTS
- Registration and Account Creation. To access and use certain features of the Services, you may need to register or create 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, email address, billing and shipping address, NPI number, and any other applicable contact information as requested. You agree to provide information required for your use of the Services that is, and to update such information so it remains, true, accurate, current and complete. Celularity reserves the rights to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
- Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Celularity of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself (other than as expressly permitted herein). You agree that you shall monitor your Account to restrict use by minors, and all other unauthorized individuals, and you will accept full responsibility for any unauthorized use of the Services. Celularity cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- TERMS OF SALE. Except as otherwise agreed in a separate writing between you and Celularity, these purchase terms (“Terms of Sale”) shall govern any order to purchase Biovance 3L product(s) (each a “Product”) you make through the Site (each an “Order”).
- Product Descriptions, Availability, “Final Sales”. Except as otherwise agreed, descriptions, images, references, features, content, specifications, products, price and availability of any Products on the Site are subject to change without notice. We will make reasonable efforts to accurately display the attributes of our Products on the Site. By placing an Order, you represent that the Products will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product. In addition, we may designate certain Products as not eligible for return and the sale of such Products will be final, with notice of such final sale stated in the Product description and/or the Order acceptance confirmation.
- Order Acceptance. When you place an Order, you must assent to the terms of the Order by signifying your acceptance (e.g., by clicking an “I Agree” button). Your placement of an Order through our Site is an offer to purchase the Product selected and placed in your cart, and we may accept your Order by processing your payment and shipping the Product(s) you have ordered. Orders may not be cancelled or rescheduled without the written consent of Celularity. Your receipt of an invoice, or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell the selected Biovance Product(s) to you. Your Order will be deemed accepted by Celularity upon our delivery of the Product(s) that you have ordered. We may require additional verifications or information before accepting any Order.
- Purchase Orders. For transactions through the Site, you are not required to submit a separate purchase order. To the extent you do issue a separate purchase order, no additional or contradictory terms included on any such purchase order (whether offered during the initial transaction or future transactions) shall operate as an amendment to these Terms, and such purchase order shall have no force and effect, even if (a) such terms expressly state that they are intended to supersede these Terms or that Celularity is required to countersign the purchase order, and/or (b) Celularity fails to object to such terms.
- Celularity ships Products purchased through the Site to street addresses within the United States and its territories. Upon shipment, we will send you notice confirming the shipment at the email associated with your Order. We do not allow address changes after we send such email confirmation of your Order shipment. Not all delivery options are available in all areas. All shipments are FOB Destination and the risk of loss and title for items you purchase passes to you upon our delivery of the Products to the you; provided however; shipping and freight will be arranged and invoiced by Celularity but paid by you. Replacement of the Products and credits for shipped Products claimed as not received are subject to investigation, which may include notifying the carrier. No casualty or damage, after such delivery, will relieve you from the obligation to pay Fees (defined below), or to comply with any other obligations under this Agreement. Your acceptance of delivery of any Product hereunder will be deemed your acknowledgement that (a) all of the Products listed in the applicable Order have been received, and (b) such Products show no obvious signs of physical damage. Your Product shipment will be delivered via FedEx or any other carrier we may engage.
- All reports of damages to a Product incurred during shipment must be reported to Celularity within one (1) business day of your receipt of the Product by calling Celularity’s Customer Service at 1-844-963-2273 #2. Product damaged during shipment shall be subject to the terms of Celularity’s Return Policy.
- Tracking your order. As your Order ships, we will send you an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking details may not be active immediately; in that case, check back in several hours or the following day.
- Return Policy. Returns and exchanges of Products sold through the Services are subject to our Return Policy, located on the Celularity Site. If you are eligible for a return under our Return Policy, please follow the procedures specified in the policy.
- Restriction on Resale. You acknowledge that you may only purchase Products for use in connection with the professional medical services you provide to patients. Products sold on the Site or otherwise are not authorized for commercial resale to third-party physicians, practitioners or any other third parties. Celularity reserves the right to decline any Order that we deem to possess characteristics of reselling.
- Orders and Fees. You may view details on the Products, and pricing specific to you by logging in to your Account. Celularity reserves the right at any time to change its prices and billing methods upon posting to the Site. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect (e.g., as set forth on the Site, or under the terms of any separate written agreement between you and Celularity) at the time a fee or charge is due and payable. Unless otherwise expressly stated in applicable invoice, all amounts due for Orders will be invoiced to you upon shipment of the BiovanceProducts, and will be due and payable within thirty (30) days after the date of such invoice.
- Payments. Payments for Orders must be made via credit card only at the time of purchase. To pay for an Order, you will need to provide Celularity with the information necessary to process your Order, which may include a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing us with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to us for purchases made hereunder and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card account used for payment hereunder. You represent and warrant that you will not use any credit card or other payment method unless you have all necessary authorization to do so. We may process, record or maintain (as requested) information in connection with your payment, and we will share transaction data only to the extent necessary for the purposes of processing your payments, refunding such payments and dealing with complaints and queries relating to such payments and refunds or as otherwise required by law. Payments made in connection with your Account are final and non-refundable, unless you are eligible for a refund or return under a separate policy made available through our Services, including our Return Policy, or as otherwise determined by Celularity.
- Taxes and Fees. Unless otherwise indicated, the prices listed on the Site do not include sales tax, shipping, and handling charges. You will have the opportunity to review the Product prices and the estimated sales tax, shipping, and handling charges prior to submitting your Order or completing the checkout process. The final calculation of the actual sales tax collected, which will be calculated in accordance with the tax code of the city and state to which the Order will be shipped, will be reflected in your invoice and packing slip. Except for sales tax, which is collected by Celularity, prices for Products exclude all other taxes, duties, levies or fees, or other similar charges imposed on you by any taxing authority related to your Order. You are responsible for payment of such taxes, duties, levies, fees or other similar charges resulting from your Order (other taxes imposed on Celularity’s income) and we are not responsible for collecting, reporting, paying, remitting to you any such taxes, fees, or charges.
- FEEDBACK. If you provide Celularity with any feedback or suggestions regarding the Services or the Products (“Feedback”), you hereby assign to Celularity all rights in such Feedback and agree that Celularity shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Celularity will treat any Feedback you provide to Celularity as non-confidential and non-proprietary. You agree that you will not submit to Celularity any information or ideas that you consider to be confidential or proprietary.
- CELULARITY COMMUNICATIONS
- Generally. You may have the opportunity to provide us with your e-mail address or fax number. By providing your email address or fax number to us, you consent to receive email communications and/or faxes from Celularity. Communications from us may include communications about your use of the Services or the Biovance Products you have purchased through the Services.
- Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SITE OR SERVICES.
- Electronic Communications. The communications between you and Celularity use electronic means, whether you use the Services or send us emails, or whether Celularity posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Celularity in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Celularity provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- You agree to indemnify and hold Celularity (and its officers, employees, and agents) harmless, including for costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services; (b) your use of any Products (unless proximately caused by our sole gross negligence or willful misconduct); (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. Celularity reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Celularity. Celularity will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- THIRD-PARTY LINKS, APPLICATIONS
- Third-Party Links, Applications. The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links & Applications”). Such Third-Party Links & Applications are not under the control of Celularity, and Celularity is not responsible for any Third-Party Links & Applications. Celularity provides access to these Third-Party Links & Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them. You use all Third-Party Links, & Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Applications, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Applications.
- No Medical Advice. THE CONTENT CONTAINED ON OUR SERVICES IS FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. CELULARITY IS NOT A LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE ON THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. PLEASE CAREFULLY READ ALL INFORMATION PROVIDED BY US IN CONNECTION WITH ANY PRODUCT AND ON ANY PRODUCT LABEL OR PACKAGING BEFORE USING SUCH PRODUCT. EACH PERSON IS DIFFERENT AND THE WAY ONE PERSON REACTS TO A PRODUCT MAY BE SIGNFICANTLY DIFFERENT THEN THE WAY ANOTHER PERSON REACTS.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CELULARITY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES. THIS SECTION 9 DOES NOT AFFECT IN ANY WAY OUR RETURN POLICY FOR THE PRODUCTS. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR THAT IT WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW (A) THE EXCLUSION OF IMPLIED WARRANTIES OR (B) LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
- LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CELULARITY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PRODUCTS PURCHASED THROUGH THE SITE, EVEN IF CELULARITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES OR ANY PRODUCTS PURCHASED THROUGH THE SITE IS 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.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (a) THE TOTAL AMOUNT PAID by you OR PAYABLE TO YOU on OR THROUGH the SERVICE during the TWELVE (12) MONth period prior to the act, omission or occurrence giving rise to such liability; OR (B) ONE HUNDRED ($100) DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CELULARITY AND YOU.
- TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of your rights under this Agreement, your Account and right to access and use the Services will terminate immediately. Celularity will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: 2, 1.5, 2.2, 4-7, 9-14.
- INTERNATIONAL USERS. The Services can 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 Celularity intends to announce such services or content in your country. The Services are controlled and offered by Celularity from its facilities in the United States of America. Celularity 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.
- ARBITRATION AGREEMENT. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Celularity and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any Products sold or distributed through the Services, or to any aspect of your relationship with Celularity, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Celularity 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). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Corporation Service Company at 251 Little Falls Drive, Wilmington, DE 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Celularity will pay them for you. In addition, Celularity will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
- You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Celularity. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND CELULARITY 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 Celularity are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New Jersey. All other disputes, claims, or requests for relief shall be arbitrated.
- 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: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Celularity username (if any), the email address you used to set up your Celularity 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.
- Severability. Except as provided in Section 5 (Waiver of Jury Trial), 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Celularity.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Celularity makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Celularity at the following address: 170 Park Avenue, Florham Park, NJ 07932.
- You understand that the Services are evolving. You acknowledge and agree that Celularity may update the Services with or without notifying you. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the later of: (i) thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or (ii) thirty (30) calendar days following our posting of notice of the changes on our Services. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
- The Services and the Products purchased through the Site, may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Celularity, or any products utilizing such data, in violation of the United States export laws or regulations.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Celularity 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 Jersey.
- Celularity is located at the address in Section 14.7. 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.
- Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Celularity is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Celularity’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Celularity may freely assign this Agreement. The terms and conditions set forth in these Agreement shall be binding upon assignees.
- Copyright/Trademark Information. Copyright © 2021, Celularity, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any Celularity Marks will inure to Celularity’s benefit.
- Contact Information:
Address: 170 Park Avenue, Florham Park, NJ 07932