TERMS AND CONDITIONS
Effective Date: January 13, 2020
THIS AGREEMENT, WHICH CONSISTS OF THESE WEBSITE TERMS AND CONDITIONS, END USER LICENSE, AND ALL NOTICES, POLICIES, RULES, REGULATIONS, AND OTHER INFORMATION THAT MAY APPEAR THROUGHOUT THE WEBSITE (COLLECTIVELY, THIS “AGREEMENT”), CONSTITUTES A BINDING ELECTRONIC AGREEMENT BY AND BETWEEN SUPERIOR LIFE SUPPORT, INC. (“COMPANY” OR “WE”), A CORPORATION ORGANIZED AND OPERATING UNDER THE LAWS OF CALIFORNIA, AND YOU (“YOU” OR “YOUR”), THE INDIVIDUAL USER WHO IS USING OR ACCESSING SLStraining.com, INCLUDING ANY DOWNLOADS, COMPANY SOFTWARE (“SOFTWARE”), APPLICATIONS, OR COMPANY SERVICES (“SERVICES”) LOCATED ON, OR RELATED TO, THE WEBSITE (COLLECTIVELY, THIS “WEBSITE“). YOU AGREE TO PERIODICALLY CHECK FOR, AND BE BOUND BY, ANY FUTURE MODIFICATIONS TO THIS AGREEMENT.
PLEASE REVIEW THIS AGREEMENT THOROUGHLY BEFORE PROCEEDING.
BY ENTERING, ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THIS WEBSITE IN ANY WAY, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT TO COMPANY THAT YOU POSSESS THE LEGAL RIGHT AND ABILITY TO ENTER INTO THIS AGREEMENT, INCLUDING YOUR AGREEMENT TO ARBITRATE CLAIMS.
AGE REQUIREMENTS. THIS WEBSITE IS INTENDED FOR INDIVIDUALS OF LEGAL AGE (18 YEARS OLD) OR WITH WRITTEN PARENTAL CONSENT (13 – 17 YEARS OLD). IF YOU ARE UNDER THE AGE OF THIRTEEN (13) YEARS, YOU MAY NOT CREATE AN ACCOUNT, AND YOU MUST IMMEDIATELY EXIT THE WEBSITE. BY REGISTERING WITH THIS WEBSITE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT OR HAVE YOUR PARENT’S CONSENT TO DO SO (THE PARENT WILL BE THE CONTRACTING PARTY FOR MINORS 13 – 17). WE CONTINUOUSLY USE OUR BEST EFFORTS TO AVOID VIOLATING ANY APPLICABLE LAWS AND REGULATIONS REGARDING MINORS, INCLUDING COMPLIANCE WITH THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT (COPPA) AND OTHER SIMILAR LAWS.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you agree to the following terms and conditions:
1. GRANT OF RIGHTS.
1.1 End User Limited License. Subject to the terms and conditions of this Agreement, Company hereby grants to You a limited, single-user, non-exclusive, non-transferable, non-sublicensable, revocable, personal license to access the Website and use the Services and Software, and to receive any data, information, and services provided by the Services. The Services provided by Company are for personal, non-commercial use only. You may download or install any Software and any data, information, and services provided by the Website or Services to as many personal computers, mobile telephones, iPhones®, or other mobile communications devices as you wish to the extent Software is available for and compatible with the same, but you are limited to only one simultaneous login. Any copy or portion of the Software and any data, information, and Services You access may only be accessed by You personally. You agree to provide true, accurate, current, and complete information about yourself. You are solely responsible for ensuring that Your access methods are kept confidential and only used by You. You will be solely responsible for all acts or omissions of any person accessing the Website, and all transmissions or transactions generated by the use of Your access methods shall be deemed to have been authorized by You. The use of the Website is with Company’s permission, which may be revoked at any time, for any reason, in Company’s sole discretion.
1.2 Website and Content Use Restrictions.
A. Website Use Restrictions. You agree that you will not: (a) use the Website for any commercial or political purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (b) use any meta tags or any other “hidden text” utilizing any Company trademarks or trade names; (c) engage in any activities through or in connection with the Website that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Company; (d) reverse engineer, decompile, disassemble, reverse assemble, or modify any Website source or object code or any software or other products, services, or processes accessible through any portion of the Website; (e) engage in any activity that interferes with a user’s access to the Website or the proper operation of the Website, or otherwise causes harm to the Website, Company, or other users of the Website; (f) interfere with or circumvent any security feature of the Website or any feature that restricts or enforces limitations on use of or access to the Website or the Content; or (g) otherwise violate this Agreement.
B. Content Use Restrictions. You also agree that, in using the content: (a) you will not monitor, gather, copy, or distribute such content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (b) you will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (c) you will keep intact all trademark, copyright, and other intellectual property notices contained in such content; (d) you will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (e) you will not make any modifications to such content; (f) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by this Agreement or with the prior written consent of an officer of Company or, in the case of content from a licensor, the owner of the content; or (g) you will not insert any code or product to manipulate such content in any way that adversely affects any user experience.
C. Availability of Website and Content. Company may immediately suspend or terminate the availability of the Website and content (and any elements and features of them) for any reason, in Company’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Website. This Agreement includes only narrow, limited grants of rights to use and access the Website and the Software. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Company and its licensors and other third parties. Any unauthorized use of any content or the Website for any purpose is prohibited.
1.3 Procedure for Alleging Copyright Infringement.
A. DMCA Notice. Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice that includes all of the following:
i. a legend or subject line that says: “DMCA Copyright Infringement Notice”;
ii. a description of the copyrighted work that you claim has been infringed or if multiple copyrighted works are covered by a single notification, a representative list of such works;
iii. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
iv. your full name, address, telephone number, and email address;
v. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
vi. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed); and,
vii. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
Company will only respond to DMCA Notices that it receives by mail or email at the addresses below:
Superior Life Support, Inc.
25128 Ave Tibbitts, Suite 150
Valencia, California 91355
Attention: DMCA Agent
1.4 Links by You to the Website. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to Company, (b) the links and the content on your website do not suggest any affiliation with Company or cause any other confusion, and (c) the links and the content on your website do not portray Company or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Company. Company reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
1.5 Linked-To Websites; Advertisements; Dealings with Third Parties.
A. Linked Websites; Advertisements. The Website may contain links, as part of third-party ads on the Website or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Company. Company may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and Company does not assume any obligation to review any Linked Websites. Company does not endorse, approve, or sponsor any Linked Websites, or any third-party content, advertising, information, materials, products, services, or other items. Company disclaims all liability in connection therewith. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Company disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Website (including on or via Linked Websites or advertisements) are solely between you and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
A. Wireless Features. The Website may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features, and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding other parties or us – unless you cancel your registration or opt-out in accordance with any procedure established by us or by law. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Website for Wireless Features, then you agree to notify COMPANY of any changes to your wireless number (including phone number) and update your accounts on the Website to reflect the changes or notify us when you wish to terminate your registration.
2. TERM AND TERMINATION
2.1 This Agreement shall commence upon the earlier of the first use and access of the Website or installation, download, copy, or use of any Software or Services by You, whether the Software is provided as a trial copy, as a fully licensed version, or any other form. Your use of any form, part, or portion of the Website, Software or Services, whether temporary or not, is considered acceptance of this Agreement in its entirety.
2.2 Any subscription and service will continue until canceled or terminated as provided herein. Both You and Company may cancel any subscription or Services at any time, at-will. Company may cancel any subscriptions or Services without notice to You. Notification of termination by You shall be made to COMPANY via electronic mail at info@SLStraining.com.
2.3 Upon termination of this Agreement, by any party, for any reason, You agree to destroy any Software licensed hereunder together with all copies and modifications in any form.
3. DISCLAIMER OF WARRANTIES AND REPRESENTATIONS. EXCEPT AS SUBJECT TO ANY CONTRARY PROVISIONS OF APPLICABLE STATE LAW, COMPANY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY AND NON-INFRINGEMENT, IN CONNECTION WITH THIS WEBSITE OR ANY SOFTWARE AND SERVICES AND ANY RELATED PRODUCTS AND SERVICES AND ANY WARRANTY COVERAGE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE WEBSITE, SOFTWARE OR SUBSCRIPTION SERVICE OR ANY RELATED PRODUCTS AND SERVICES. COMPANY SPECIFICALLY DISCLAIMS WARRANTY COVERAGE FOR ANY INFORMATION OR DATA PROVIDED THROUGH THE WEBSITE, ANY SOFTWARE OR SERVICES. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE WEBSITE, ANY SOFTWARE AND ANY SERVICES ARE ALL PROVIDED “AS IS.” YOU ARE ASSUMING TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE AND ANY SOFTWARE, AND SERVICES AND FOR ANY LOSSES OR LOSS OF PROFITS, GOODWILL, USE, DATA, AND FOR ALL OTHER TANGIBLE AND INTANGIBLE LOSSES OF ANY KIND OR NATURE, REGARDLESS OF CAUSE.
4. LIMITATION AND WAIVER OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) FOR ANY TORT, CONTRACT OR ANY OTHER DAMAGE OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR RELIANCE ON THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION OR RELATED PRODUCTS OR SERVICES PROVIDED BY COMPANY OR ITS EMPLOYEES OR AGENTS, EVEN IF WE ARE SOLELY NEGLIGENT. COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF COMPANY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, RESULTING FROM: (i) THE USE OF OR INABILITY TO USE THE WEBSITE OR ANY SOFTWARE OR SERVICES; (ii) THE ACCURACY OF ANY DATA RELATED TO OR PROVIDED IN ASSOCIATION WITH THE WEBSITE, ANY SOFTWARE OR SERVICES, INCLUDING ANY ERRORS OR OMISSIONS CAUSED BY COMPANY’S OWN NEGLIGENCE; (iii) ANY ADVICE, INCLUDING ANY MEDICAL, FITNESS OF NUTRINIONAL OR OTHER ADVICE PROVIDED BY COMPANY EMPLOYEES OR AGENTS; (iv) THE COST OF GETTING SUBSTITUTE PRODUCTS OR SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM OR IN RELIANCE UPON COMPANY, ANY SOFTWARE, OR SERVICES; OR (v) FOR ANY OTHER CLAIM BY YOU OR ANOTHER PARTY RELATED TO ANY SOFTWARE, SUBSCRIPTION SERVICE, OR ANY RELATED PRODUCTS OR SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF AND RELIANCE ON THE WEBSITE AND ON ANY OTHER RELATED OR ASSOCIATED SOFTWARE, PRODUCTS, AND SERVICES. IT IS YOUR RESPONSIBILITY TO DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS YOUR REQUIREMENTS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST COMPANY FOR BREACH OF CONTRACT, BREACH OF WARRANTY AND NEGLIGENCE, RELATED TO THE WEBSITE AND TO ANY OTHER RELATED OR ASSOCIATED SOFTWARE, PRODUCTS AND SERVICES.
ALTHOUGH COMPANY TRIES TO PROVIDE ACCURATE AND TIMELY INFORMATION ON ITS WEBSITES AND THROUGH ANY SOFTWARE AND SERVICES, THERE MAY FROM TIME TO TIME BE INADVERTENT TECHNICAL OR FACTUAL INACCURACIES AND TYPOGRAPHICAL ERRORS, AS WELL AS DATA AND INFORMATIONAL ERRORS. COMPANY RESERVES THE RIGHT TO MAKE CHANGES AND CORRECTIONS AT ANY TIME TO ANY ERRORS, WITHOUT NOTICE OR LIABILITY TO YOU OR ANY THIRD PARTY. IN ADDITION, COMPANY MAY MAKE CHANGES TO THE WEBSITE OR TO RELATED OR ASSOCIATED INFORMATION OR DATA AT ANY TIME BUT MAKES NO COMMITMENT TO UPDATE THE WEBSITE, INFORMATION OR DATA PROVIDED BY COMPANY AS PART OF THE SOFTWARE OR ANY SERVICE OR AS PART OF ANY OTHER RELATED PRODUCTS OR SERVICES. THE INFORMATION AND DATA PROVIDED THROUGH COMPANY’S WEBSITE, ANY SOFTWARE, AND SERVICES, AND ANY OTHER RELATED PRODUCTS AND SERVICES, IS PROVIDED “AS-IS” AND “AS-AVAILABLE.” COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE AND HEREBY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR YOUR RELIANCE ON, THE ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF THE WEBSITE, DATA, INFORMATION, TEXT, GRAPHICS, LINKS OR ANY OTHER ITEMS PROVIDED BY COMPANY. COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR, ERRORS, INACCURACIES, UNRELIABILITY, OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, OR ACTIONS TAKEN OR NOT TAKEN BASED ON, ANY DATA OR INFORMATION CONTAINED IN THE WEBSITE, ANY SOFTWARE, SERVICES, OR OTHER PRODUCTS OR SERVICES, EVEN IF THE RESULT OF OUR NEGLIGENCE. COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR, YOUR RELIANCE ON THE ACCURACY, TIMELINESS, OR RELIABILITY OF ANY INFORMATION AND DATA PROVIDED BY COMPANY, INCLUDING BY THE WEBSITE, ANY SOFTWARE, SERVICES, OR OTHER PRODUCTS OR SERVICES. COMPANY MAY MAKE CHANGES TO INFORMATION OR DATA AT ANY TIME AND MAKES NO COMMITMENT TO UPDATE THE INFORMATION OR DATA PROVIDED BY COMPANY AS PART OF ANY SOFTWARE OR SERVICES OR AS PART OF ANY OTHER RELATED PRODUCTS OR SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF AND RELIANCE ON THE WEBSITE, ANY SOFTWARE AND SERVICES OR ON ANY OTHER RELATED PRODUCTS OR SERVICES, AND YOU ASSUME THE ENTIRE RISK AS TO THE USE, FAILURE AND LOSS OF ANY AND ALL DATA CONNECTIONS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST COMPANY FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR NEGLIGENCE, RELATED TO THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY RELATED PRODUCTS OR SERVICES.
THE PREVAILING PARTY IN ANY LITIGATION OR ARBITRATION ARISING OUT OF THIS AGREEMENT SHALL BE PAID, IN ADDITION TO ANY OTHER RELIEF, ITS REASONABLE ATTORNEYS FEES FOR SUCH LITIGATION OR ARBITRATION, BY THE NON-PREVAILING PARTY, WITHIN THIRTY DAYS OF THE FINAL CONCLUSION OF THE PROCEEDING.
5.1 ALL CONTENT PROVIDED ON THE WEBSITE IS BASED ON DATA AND SOURCES BELIEVED TO BE RELIABLE, BUT ACCURACY AND COMPLETENESS CANNOT BE GUARANTEED. ANY SOFTWARE, SERVICES, INFORMATION, DATA, REPORTS, AND CONTENT PROVIDED BY COMPANY ARE FOR INFORMATIONAL, EDUCATIONAL, AND/OR ENTERTAINMENT PURPOSES ONLY, AND ALLOW YOU TO EVALUATE, OR TO MAKE INDEPENDENT DECISIONS CONCERNING SUBJECT MATTERS PRESENTED. IN PARTICULAR, YOU AGREE THAT COMPANY, BY PROVIDING THE WEBSITE AND ANY ASSOCIATED SOFTWARE AND SERVICES, HAS NOT ACTED AND IS NOT ACTING AS YOUR FIDUCIARY OR PROVIDED (OR HELD ITSELF OUT AS PROVIDING) ADVICE RESPECTING ANY PARTICULAR DECISIONS, AND THAT THE WEBSITE AND SOFTWARE SHALL NOT SERVE AS THE PRIMARY BASIS FOR ANY DECISION MADE BY YOU. SPECIFICALLY, NOTHING ON COMPANY’S WEBSITE, OR IN ANY SOFTWARE OR AS PART OF SERVICES, IS A RECOMMENDATION, ADVICE, OR SOLICITATION. YOU SHOULD NOT CONSTRUE ANY DATA OR INFORMATION PROVIDED BY COMPANY AS ADVICE SPECIFIC TO YOU.
5.2 COMPANY REPRESENTATIVES ARE NOT AUTHORIZED, TRAINED OR PERMITTED TO PROVIDE ADVICE OF ANY KIND, INCLUDING MEDICAL ADVICE. COMPANY IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN AS A RESULT OF ANY INFORMATION OR ADVICE PROVIDED BY A COMPANY REPRESENTATIVE OR EMPLOYEE AS A RESULT OF COMMUNICATIONS FROM OR TO YOU VIA EMAIL, TELEPHONE OR OTHERWISE, AND SUCH INFORMATION OR ADVICE RECEIVED BY YOU SHOULD NOT BE RELIED UPON OR CONSIDERED ACCURATE FOR ANY REASON. IF YOU ARE IN NEED OF MEDICAL ADVICE, PLEASE CONSULT A PHYSICIAN OR OTHER HEALTHCARE PROVIDER.
5.3 YOU ALONE ASSUME SOLE RESPONSIBILITY FOR ANY DECISIONS YOU MAKE BASED ON THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY COMPANY. COMPANY, ITS EMPLOYEES, AGENTS, OR AFFILIATES ARE NOT RESPONSIBLE FOR ANY LOSSES YOU MAY INCUR AND YOU AGREE NOT TO HOLD COMPANY LIABLE OR RESPONSIBLE FOR ANY POSSIBLE CLAIM FOR DAMAGES ARISING FROM ANY DECISION YOU MAKE BASED ON DATA OR INFORMATION MADE AVAILABLE TO YOU BY COMPANY, THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY COMPANY, EVEN IF WE ARE SOLELY NEGLIGENT.
5.4 YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR PROCURING ALL EQUIPMENT, CONNECTIONS, AND OTHER SOFTWARE PRODUCTS, WHICH MAY BE NECESSARY FOR YOUR USE OF THE WEBSITE AND ANY ASSOCIATED SOFTWARE AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE FOREGOING. IN ADDITION, YOU ARE SOLELY RESPONSIBLE FOR PROTECTING YOUR DATA AND FOR ENSURING THAT YOUR DATA IS APPROPRIATELY BACKED UP.
5.5 COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ANY NETWORK. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET PROVIDED BY OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES OR OTHER PERSONS CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY LOSS OF A DATA CONNECTION OR ANY FAILURE OF A TRANSACTION DUE TO ANY SUCH LOSS OF A DATA CONNECTION. ACCORDINGLY, COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.6 THE DISCLAIMER OF WARRANTY, LIABILITY, AND OTHERWISE CONTAINED IN THIS AGREEMENT CONSTITUTE ESSENTIAL PARTS OF THIS AGREEMENT. NO USE OF THE WEBSITE OR ANY ASSOCIATED SOFTWARE OR SERVICE, INFORMATION, DATA OR AND ANY RELATED PRODUCTS AND SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS.
6. USE AND OWNERSHIP OF THE COMPANY INTELLECTUAL PROPERTY
6.1 This Website contains a combination of Company’s proprietary information and intellectual property and such that is owned by its content providers. Company hereby owns and reserves all rights in its proprietary information and intellectual property, including but not limited to all text, photographs, graphics, images, illustrations, animations, audiovisuals, audio or video clips, Html, source and object code, software, data, or other technology, as well as its copyrightable selection and arrangement, logos, trademarks, and service marks, whether registered or common law, within all territories of the universe in perpetuity.
6.2 Any other content related to the Website, including the Software, Services, all other Company websites, all related and associated content, and all accompanying materials and related intellectual property rights, are owned by Company, and all rights to such are hereby reserved. You acknowledge that the Software constitutes confidential and proprietary information of the Company. At all times (both during the term of this Agreement and thereafter) you must hold the Software in the strictest confidence and may not use the Software in any manner or for any purpose other than as permitted herein and shall not disclose the Software to, or allow use by, any other person or entity. Further, you acknowledge that the Software shall remain the property of the Company and you agree to notify the Company immediately upon discovery of any unauthorized disclosure or use of the Software and to cooperate with the Company in every reasonable way to help the Company regain possession of the Software and/or to prevent further unauthorized use or disclosure of the Software.
6.3 You shall not reproduce, distribute, display, modify, publish, transmit, perform, sell, or otherwise use any of Company’s property without Company’s prior written permission. Without limiting the generality of the foregoing statement, You shall not use any of Company’s trademarks, copyrighted materials, web sites, data, information, web site content, web site screenshots, online screenshots, Software screenshots, or other proprietary information or data without express prior written consent and approval from Company.
7. FEES AND PAYMENT.
7.1 Fees. You agree to pay Company the fees and other charges (collectively “Fees”) as set forth for each license granted herein (the “License Grant”). You shall be responsible for any fees or charges incurred to access the Website, Service, and Software, including without limitation any costs associated with third party internet access providers, any bandwidth, data, or subscription charges, as well as any other third party service charges You may incur. In the event that Company provides You access to the Website, Services, or Software free of charge, the terms of this Agreement shall nonetheless apply. All fees shall be due in advance of the term covered, and Company shall have the right to terminate this Agreement for Your failure to pay.
7.2 Refund Policy. Unless otherwise stated herein or mandated by law, no portion of the Fees is refundable for any reason whatsoever.
8.1 Force Majeure. Company shall not be liable to You for any failure to perform under this Agreement, or for the failure of the Website or of any software, goods or services, if such failure results, whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, or of the public enemy, war, civil disturbance, terrorism, act of any government, de jure or de facto, or agency or official thereof, labor shortage, transportation contingencies, interruptions of power or communications, internet slowdowns or failures, unusually severe weather, default of manufacturer or a supplier as subcontractor, quarantine restrictions, epidemic, or catastrophe, or lack of timely instructions or essential information from the other party.
8.2 Forum for Disputes or Claims Related to This Agreement; Waiver of Legal Right to Trial and to Class Action; Right to Opt out of Arbitration or from Bar on Class Action. Any dispute or claim raised by You arising out of or relating to this Agreement or the subject matter hereof will be submitted only to binding arbitration on a confidential basis conducted strictly in accordance with the terms of this Agreement and the substantive law of the State of California. The arbitration venue and all related hearings will be in Los Angeles County, California. The parties agree that the arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association. Unless You and Company concur in the appointment of a single arbitrator, the matter of difference shall be referred to three (3) arbitrators appointed to hear the case pursuant to the procedures set forth in the Commercial Arbitration rules of the American Arbitration Association. The arbitrators must base their decision with respect to the difference before them on the contents of this Agreement, and the decision of any two of the three arbitrators shall be binding on both You and Company. Judgment upon the award rendered by the arbitrator(s) may be entered and enforced in any court of competent jurisdiction. Neither You or Company will be precluded hereby from seeking equitable provisional remedies in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, but such equitable remedies will not and may not be sought to avoid or stay arbitration. YOU HEREBY AGREE AND UNDERSTAND THAT BY USING THIS WEBSITE, ANY SOFTWARE AND SERVICES PURSUANT TO THIS AGREEMENT YOU ARE WAIVING YOUR RIGHTS TO FILE A LAWSUIT AGAINST COMPANY IN A COURT OF LAW FOR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE, ANY SOFTWARE, AND SERVICES. ANY DISPUTE OR CLAIM RAISED BY COMPANY, HOWEVER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL, AT COMPANY’S SOLE CHOICE AND DISCRETION, EITHER BE SUBMITTED TO BINDING ARBITRATION IN ACCORDANCE WITH THIS SECTION OR FILED AS A LAWSUIT IN THE APPROPRIATE FEDERAL OR STATE COURT. YOU HEREBY AGREE TO THIS DIFFERENCE IN THE AVAILABILITY OF AND FORUM FOR RELIEF FOR DISPUTED CLAIMS BETWEEN YOURSELF AND COMPANY, AS SET FORTH IN THIS SECTION. YOU FURTHER AGREE NOT TO PURSUE OR BE THE PLAINTIFF OR REPRESENTATIVE IN ANY CLASS ACTION CASES OR LITIGATIONS AGAINST COMPANY ANYWHERE WORLDWIDE, RELATED TO THE SUBSCRIPTION SERVICE, OR TO ANY COMPANY CONDUCT, PRODUCTS OR SERVICES. YOU HEREBY AGREE AND UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO BE INVOLVED IN ANY CLASS ACTION AGAINST COMPANY.
8.3 Governing Law and Venue. Except as relates to any federal law causes of action, this Agreement shall be governed in all respects by the substantive laws of the State of California but excluding the application of California’s choice of law provisions. Any arbitration or provisional equitable action commenced by You, or arbitration, equitable, or other legal action in a court of law commenced by Company, arising out of or relating to this Agreement, shall be commenced in Los Angeles County, California. In any action commenced by Company in a court of law You irrevocably hereby submit and consent to and agree not to contest, object to, or challenge, the personal jurisdiction over You, by any court in Los Angeles County, California in which such action is filed, as well as to the venue of such court, and you hereby waive any and all defenses, challenges, or objections related to personal jurisdiction and venue. NO ACTION, REGARDLESS OF FORM, RELATING IN ANY MANNER TO THE WEBSITE, THE SOFTWARE, OR OTHERWISE TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS SECTION, A CAUSE OF ACTION IS DEEMED TO HAVE ACCRUED WHEN YOU KNEW OR REASONABLY SHOULD HAVE KNOWN ABOUT THE BREACH OR CLAIMED BREACH OR ANY OTHER CAUSE OF ACTION AGAINST US.
8.4 Enforceability. You agree the Agreement and all terms and conditions herein are enforceable and are not unconscionable and not in violation of public policy. You agree the Agreement is not a contract of adhesion and that You had the power and control to reject, alter, and negotiate the terms and conditions herein. In the event any specific sentences, portions, or provisions of this Agreement are held by a court of competent jurisdiction or an arbitrator to be invalid or unenforceable, the remaining sentences, portions, and provisions of this Agreement will remain binding and in full force and effect. No employee, agent or representative of COMPANY who is not an officer of Company has any authority to vary, waive or contradict any of the terms of this Agreement.
8.6 Entire Agreement; Modifications. This Agreement, including any future revisions, is the entire agreement and understanding between You and Company with respect to the subject matter of this Agreement and supersedes all prior agreements, representations, inducements, negotiations and understandings between, by and among You and Company, whether oral or written, all of which are merged into this Agreement. Company disclaims all representations other than those expressly set forth in this Agreement. You are not relying on or accepting any representations, coercions, representations, or inducements by Company, relating to the subject matter hereof, made outside of this Agreement, nor that there were any outside of this Agreement upon which to rely.
8.7 Updates to this Agreement. Company reserves the right to modify, revise, and update this Agreement, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this Agreement on a regular and frequent basis. The Updated Terms will be effective as of the time that Company posts them on the home page of the Website, or such later date as may be specified in them.
8.8 Company’s Consent or Approval. As to any provision in this Agreement that grants Company a right of consent or approval or permits Company to exercise a right in its “sole discretion”, Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
8.9 Indemnity. You agree to, and you hereby, defend, indemnify, and hold Company parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) as well as the expenses of any legal proceeding related thereto, that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) any user generated content; (ii) your use of the Website or Software and your activities in connection with the Website or Software; (iii) your breach or anticipatory breach of this Agreement; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Website, Software, or your activities in connection with the Website or Software; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) Company parties’ use of the information that you submit to us; (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if Company deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Company parties in defense of any Claim and Losses. Notwithstanding the foregoing, Company parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company party.
8.10 Operation of Website; Availability of Products and Services; International Issues. Subject to the terms of this Agreement, we reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis. You and we disclaim any application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
8.11 Severability; Interpretation. If any provision of this Agreement is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this Agreement (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation”.
8.12 Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that, except as set forth herein, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8.13 Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this Agreement, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this Agreement, and (vi) discontinue the Website, in whole or in part, or, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under this Agreement. Upon suspension or termination of your access to the Website, or upon notice from Company, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
8.14 Assignment. Company may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
8.15 No Waiver. Except as expressly set forth in this Agreement, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of this Agreement will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.