TERMS OF SERVICE
These TERMS OF SERVICE (“Terms of Service”) constitute a binding contract between you (“Member” or “Customer” or “You”) and The Highest Level (“Company”) regarding the terms under which the Company will provide Member with the Services. BY CLICKING ON THE BUTTON MARKED “I ACCEPT”, MEMBER SIGNIFIES ITS AGREEMENT TO ABIDE BY THESE TERMS OF SERVICE (“Acceptance”). Member agrees that its assent, given electronically, will have the same legal effect as if it had been personally signed by Member. To the extent permitted by law, these Terms of Service are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically. Please print a copy of these Terms of Service for future reference.
- “Effective Date”– refers to the date that the Company confirms Member’s right to use the Subscription Website.
- “Gift Subscription”– refers to a right to use the Subscription Website as a recipient of a gift, i.e., the recipient does not have to provide credit/debit card information during the registration process. The sender of the Gift Subscription is not deemed a Member but the recipient of a Gift Subscription will be deemed a Member upon Acceptance of these Terms of Service.
- “No Fee Trial” – refers to a temporary right to use the Subscription Website at no charge during the permissible No Fee Trial period and in accordance with any applicable terms, including, but not limited to, Acceptance of these Terms of Service. A No Fee Trial may or may not require the insertion of credit/debit card information.
- “Premium Content”– means the Files and the Standard Content offering within the Subscription Website.
- “Public Website”– means that portion of the Website that is available for use by any person without the need to be a Member.
- “Services”– means the Public Website, the Subscription Website, and their entire contents, features and functionality (including but not limited to, all information, software, text, displays, files, images, video and audio, and the design, selection and arrangement thereof, the Standard Content, the Files, and any documentation pertaining to the foregoing).
- “Member” – also referred to as “Member”, refers to an individual/entity/organization/institution that has the right to access the Subscription Website via a Subscription Fee (“Paid Subscription”), Gift Subscription, No Fee Trial, or other basis. A Member must be at least 18 years of age or, as applicable, the age of majority in the country, state or other jurisdiction in which the Member resides (and if a minor, have the permission of a parent or legal guardian to access the Subscription Website), and possess the legal right and ability to enter into binding contracts. Furthermore, a Member may be an ‘Individual’ or ‘Multi-User’ Member as follows:
- “Individual Member” refers to a Subscription by one individual only (“Individual Subscription”); Member agrees to treat password, usernames, and other security information (“Authentication Information”), as confidential and to not provide any other person with access to the Subscription Website or portions of it using Member’s Authentication Information. Member will notify the Company immediately of any unauthorized access to, or use of, Authentication Information. The Company has the right to disable any Member access to the Services at any time, in its sole discretion for any or no reason, including if, in the Company’s opinion, Member has violated any provision of these Terms of Service or appears likely to do so.
- “Subscription”– refers to a right to use the applicable portion of the Subscription Website as a Member under a Paid Subscription, Gift Subscription, No Fee Trial, or other form of right and/or fee to access the Subscription Website.
- “Subscription Term”– means the period of time that a Member may utilize the applicable portion of the Subscription Website.
- “Subscription Website”– means the applicable portion of the Website that is available only to a Member.
- “Virus” means any item or device (including any software, code, file or program) which is designed to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- “Website” – means all information, content, concepts, program interfaces, structures, functionality, computer code, published materials, electronic documents, graphic files and other technology inherent in Company’s website located www.highestlevel.com, or such other web address as may be linked to, used with, or used in conjunction with the Subscription Website by the Company at any time, and includes the entirety of both the Subscription Website and the Public Website.
2) MEMBER WARRANTIES, RIGHTS, REPRESENTATIONS, RESTRICTIONS, AND OBLIGATIONS.
Subject to these Terms of Service, Member will be granted a limited, non-exclusive, revocable, non-transferable, and non-sublicenseable right to access that portion of the Subscription Website applicable to the Subscription type. By agreeing to grant such access, the Company does not obligate itself to maintain the Website, or to maintain it in its present form. The Company may upgrade, modify, change or enhance the Services and convert a Member to a new version thereof at any time in its sole discretion, to the extent that this is not detrimental to Member’s use of the Services and on reasonable prior notice to Member (unless the change is of critical business importance or outside the Company’s control, in which case the Company will explain the reason for the changes as soon as is reasonably practicable). Member agrees to abide by any rules or regulations that the Company publishes with respect to conduct of Members and other users of the Website, which rules and regulations are hereby incorporated into these Terms of Service by this reference. The Company reserves the right to deny a Member access to the Subscription Website if, in the Company’s sole discretion, Member has failed to abide by these Terms of Service or appear likely to do so. Member accepts that the Company in its sole discretion may, but has no obligation to, monitor the Services or any portion thereof, and/or to oversee compliance with these Terms of Service. Member promises, acknowledges, and agrees that:
- Access privileges may not be transferred to any third-parties;
- It will not access, store, distribute or transmit any Viruses;
- It will comply with all applicable laws and regulations with respect to use of the Services;
- It will not rent, lease, sublicense, re-sell, distribute, transfer, copy or modify the Services or any component thereof;
- It will not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code made available hereunder;
- It will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit the Services or any portion thereof;
- It will not delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Website or contained in the Services;
- It is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment, network connections, and telecommunication links, necessary to access and use the Services;
- It will not use the Services in any manner, or in connection with any content, data, hardware, software or other materials that infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, or that constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third party right, or that is threatening, harassing or malicious.
- It has reviewed the requirements and suggested qualifications for the Website and meets these qualifications and requirements and assumes all risks associated with a failure to do so.
- It permits Company to make visible to other Members the amount of time that has past since Member’s last login or use of the Subscription Website.
3) AVAILABILITY OF WEBSITE.
Member recognizes that the traffic of data through the Internet may cause delays during the download of information from the Website and accordingly, it shall not hold the Company liable for delays that are ordinary in the course of Internet use. Member further acknowledges and accepts that the Website will not be available on a continual twenty-four hour basis due to such delays, or delays caused by the Company’s upgrading, modification, or standard maintenance of the Website.
4) INTELLECTUAL PROPERTY RIGHTS.
The Services, the Website, and all of their past, present, and future content are owned by the Company, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. No right, title or interest in or to the Services or any portion thereof, is transferred to any Member, and all rights not expressly granted herein, are reserved by the Company. The Company name, the Company logo, and all related names, logos, product and service names, designs and slogans, are trademarks of the Company or its affiliates or licensors. Member may not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
5) COMPANY OBLIGATIONS.
The Company will use commercially reasonable efforts to enable the Services to be accessible, except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by the Company, including, but not limited to, any Force Majeure Event (as defined below). The foregoing undertaking shall not apply to the extent of any non-conformance caused by use of the Services contrary to the Company’s instructions, or modification or alteration of the Services by any party other than the Company.
6) FEES AND PAYMENT.
Subscription Fee. Member agrees to pay the appropriate fee corresponding to the particular Service(s) that it wishes to access for the applicable Subscription Term (“Subscription Fee”). The Company reserves the right to change the Subscription Fee with respect to a Renewal Term with prior written notification. Unless otherwise expressly stated, all fees are non-cancellable and non-refundable.
No Fee Trial. If Member cancels a No Fee Trial before it expires, Member’s credit/debit card will not be charged. If Member does not cancel before expiration of the No Fee Trial, Member will automatically be enrolled in the appropriate membership (depending on Member’s No Fee Trial sign-up choice), and Member’s credit/debit card will be billed accordingly.
Payment Details. Recurring charges are billed in advance of service. Member agrees to provide the Company with valid, up-to-date and complete debit/credit card, contact and billing details. Member further authorizes the Company to bill such debit/credit card on the Effective Date (and corresponding Renewal Dates, if appropriate) for the Subscription Fee due for the Subscription Term (and Renewal Term). If, for any reason, Member’s credit/debit card company refuses to pay the amount billed for the Services, Member agrees that Company may, at its option, suspend or terminate Member’s subscription to the Services and require Member to pay the overdue amount by other means acceptable to the Company. Company may charge a fee for reinstatement of suspended or terminated accounts. Member agrees that until its subscription to the Services is properly terminated, it will continue to accrue charges for which it remains responsible, even if it does not use the Services. In the event legal action is necessary to collect on balances due, Member agrees to reimburse the Company for all expenses incurred to recover sums due, including attorney fees and other legal expenses. Unless otherwise expressly stated, all fees are stated in United States dollars.
Taxes. Member is responsible for all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against the Company.
Member Submissions. In consideration for the possibility of receiving the stated number of months of membership for free, Member assigns, transfers, and grants to Company all rights, title, interest and ownership, agrees to the use, publication, and distribution in the Website, broadcasts, newspapers, brochures and other media (including for advertising or sales promotional purposes), and hereby waives and releases any claim or right Member may otherwise have arising out of such use, publication or distribution in and for whatever material Member submits to the Company (“Submission Material”). Member transfers all right, title, interest, copyright, trademark, intellectual property, and other ownership interest of any Submission to Company upon submitting the Submission to the Company in exchange for consideration and the possibility for receiving the stated number of months of access to the website free or charge. If the Company chooses to share the Submission Material with other Members, Member will the stated number of months of access to the Premium and Standard Content free of charge (“Submission Discount”). Member will only receive one Submission Discount per submission. Company may use each Submission Material as many times as it chooses and will not be required to issue a Submission Discount each time Submission Material is used. The Company will issue Submission Discounts in the form of providing access to its Premium and Standard Content free of charge for the month following the first use of the Submission Material. Member hereby irrevocably grants the Company permission to use the Submission Material in conjunction with the Services and Website, in any form, including edited versions, in or over any medium including without limitation streaming audio and/or video over the internet, broadcast, cable, satellite transmissions, and media that are unknown at this time, worldwide for any legitimate purpose including, without limitation, any commercial purpose, without compensation other than the Submission Discount.
7) TERM AND TERMINATION.
- General Subscription. Member may subscribe to the Services for the applicable term of the specific Subscription commencing on the Effective Date (“Initial Term”). Thereafter, the Subscription will renew automatically on the corresponding anniversary date (“Renewal Date”) of the Effective Date (each a “Renewal Term”, and collectively with the Initial Term, the (“Subscription Term”), until Member notifies Company of its intention not to renew prior to the end of the then-current term.
- No Fee Trial Subscription. Member may cancel a No Fee Trial at any time before it expires by following the relevant instructions. Continuance of the Subscription beyond the expiration of the No Fee Trial will incur the relevant fee.
- Termination. The Company reserves the right to terminate or suspend access to all or any portion of the Services for violation or suspected violation of these Terms of Service.
- Effect of Termination. Member will have no further rights to access the Subscription Website. Termination will not affect the rights or liabilities of either party that accrued prior to termination.
Member agrees to maintain the confidentiality of the Company’s Confidential Information. For the purposes of these Terms of Service, the term “Confidential Information” means all portions of the Services, including but not limited to, the Subscription Website.
9) THIRD PARTY LINKS OR INFORMATION.
This Website may contain links to other websites that are not operated by or related to Company. Company is not responsible for the content, accuracy or opinions expressed in such third party websites, and does not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website on this Website does not imply approval or endorsement of the linked website by Company. A Member that leaves this Website to access these third-party sites does so at its own risk.
10) DISCLAIMERS OF STATEMENTS/WARRANTIES.
MEMBER’S USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT ITS OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY STATEMENTS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY STATEMENT, WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY PROMISES THAT THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR ANY PORTION THEREOF, WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET MEMBER’S NEEDS OR EXPECTATIONS. COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
11) LIMITATION OF LIABILITY.
COMPANY DOES NOT IN ANY WAY EXCLUDE OR LIMIT ITS LIABILITY FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR COMPANY TO EXCLUDE OR ATTEMPT TO EXCLUDE ITS LIABILITY. IN NO EVENT SHALL COMPANY, ITS LICENSORS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE TO MEMBER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, LOSS OF DATA, OR LOSS OF PROFITS, WHETHER OR NOT MEMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, MEMBER’S EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THESE TERMS OF SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) THE AMOUNT PAID BY MEMBER TO COMPANY IN SUBSCRIPTION FEES DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE OR (II) TWO HUNDRED DOLLARS ($200), REGARDLESS OF WHETHER THE CLAIM OR ACTION IS BASED ON CONTRACT, TORT, WARRANTY, INDEMNIFICATION OR OTHERWISE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. MEMBER WILL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY MEMBER AND/OR ITS AUTHORIZED END USERS.
12) ASSUMPTION OF RISK.
IN CONSIDERATION OF THE ACCEPTANCE OF THE SUBSCRIPTION FEE, MEMBER ASSUMES A FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY DISCOMFORT, ILLNESS, INJURY, OR ACCIDENT WHICH MAY OCCUR WHILE USING THE SUBSCRIPTION. MEMBER UNDERSTANDS THAT USING THE SUBSRCRIPTION MAY BE HAZARDOUS, AND THAT IT SHOULD NOT BE USED UNLESS MEMBER IS MEDICALLY ABLE AND PROPERLY TRAINED. MEMBER SHOULD CONSULT A DOCTOR BEFORE USING THE SUBSCRIPTION. IT IS MEMBER’S RESPONSIBILITY TO CHECK AND TO ENSURE THAT HE OR SHE IS AT ALL TIMES MEDICALLY AND PHYSICALLY FIT TO USE THE SUBSCRIPTION. MEMBER ACKNOWLEDGES AND AGREES THAT USING THE SUBSCRIPTION MAY CARRY WITH IT CERTAIN INHERENT RISKS AND DANGERS THAT CANNOT BE ELIMINATED COMPLETELY RANGING FROM RISK OF MINOR DISCOMFORT TO CATASTROPHIC INJURIES INCLUDING PERMANENT DISABILITY AND DEATH. MEMBER IS AWARE OF AND ASSUMES ALL RISKS ASSOCIATED WITH USING THE SUBSCRIPTION, INCLUDING WITHOUT LIMITATION RISKS OF PERMANENT INJURY OR DEATH.
13) MEMBER REPRESENTATIONS.
Member represents and warrants that he or she is in good physical condition, is able to safely use the Subscription, and has no medical condition that would make his or her use of the Subscription hazardous. Member also represents and warrants that he or she is over 18 years of age and has the requisite background and knowledge in physical fitness, health, and exercise to use the Subscription safely.
14) RELEASE AND WAIVER OF LIABILITY
ALL MEMBERS ARE REQUIRED, AS A CONDITION OF USING THE SERVICES, TO ASSUME ALL RISKS OF PARTICIPATION. Member, on behalf of himself/herself and his or her representatives, assigns, heirs, executors, and successors hereby fully and forever releases, waives, and discharges Company, together with its officers, directors, shareholders, employees, agents, successors and assigns, (collectively, “Releasees”) from all liability to the Member and his/her personal representatives, assigns, heirs, executors, and successors for loss(es), damage(s) and claims therefor on account of injury to Member or his/her property or the resultant death of Member, whether caused by the active or passive negligence of the Company or otherwise, in connection with Members use of the Website (“Losses”), and further covenants not to sue any of the aforementioned parties for such Losses. Member is fully aware of the risks and hazards inherent in using the Subscription and elects to voluntarily use its Services. Member hereby assumes all risks of loss(es), damage(s), or injury(ies) that may be sustained by him/her while using the Subscription. Member represents and warrants to the Releasees that he/she is in good physical condition, is able to safely use the Subscription, and has consulted all licensed medical professionals necessary to evaluate Members ability to safely use the Subscription. Member warrants that all statements made herein are true and correct and understands that Releasees have relied on them in allowing Member to use the Services. MEMBER HAS READ THE FOREGOING AND INTENTIONALLY AND VOLUNTARILY AGREES TO THIS GENERAL RELEASE AND WAIVER OF LIABILITY
15) DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY AGREE THAT USE OF THE COMPANY’S SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY MAKES NO WARRANTY THAT ITS WEBSITE’S SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE COMPANY DOES NOT GUARANTEE THE ACCURACY OR SCOMPLETENESS OF ANY INFORMATION ON, OR PROVIDED IN CONNECTION WITH ITS SITES. THE COMPANY IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
Member agrees to compensate and defend fully Company, its officers, employees, agents, successors and assigns, from and against any damages, losses, and expenses (including reasonable attorneys’ fees) claim, action or demand arising out of the use the Website or any breach by Member of any representation, warranty, covenant, obligation or duty of Member under this Agreement as well as the Website and all of its related content, services or material.
All provisions relating to proprietary rights, payment of fees, confidentiality, disclaimer of warranty, indemnification, and limitation of liability, shall survive the expiration or earlier termination of these Terms of Service.
Except, for any provisions determining the primary contractual obligations of Member and Company hereunder, Company has the right to revise and amend these Terms of Service from time to time to reflect changes in business needs including, but not limited to, changes in features and functionality, changes in market conditions, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in system capabilities, and changes in price or the Subscription Fee. Changes are effective immediately upon posting and Member’s continued use of any of the Services following the posting of revised Terms of Service means that Member accepts and agrees to the changes, to the extent permitted by applicable laws.
Member may not transfer these Terms of Service, in whole or in part. Company may transfer these Terms of Service and/or subcontract some or all of its obligations hereunder at any time.
Member acknowledges that a breach of any confidentiality or proprietary rights provision of these Terms of Service may cause Company irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Company may seek an injunction to prevent Member from taking any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Company may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Company may be entitled at law or in equity.
21) GOVERNING LAW AND VENUE.
These Terms of Service shall be construed and governed by the laws of the State of California, without regard to the principles of conflict of laws thereof. Member agrees and accepts that any legal action or proceeding shall be brought in the County of San Diego, California and Member expressly waives any objection to personal jurisdiction, venue or forum non conveniens. Additionally, in the event of any dispute or claim relating to or arising out of these Terms of Service (including, but not limited to, any claims of breach of contract, tort, infringement), Member agrees that all such disputes/claims will be resolved by means of a court trial conducted by the superior or district court in San Diego County, California, and Member expressly waives any right it may otherwise have to a jury trial. THE PRECEDING PROVISION REGARDING VENUE DOES NOT APPLY IF YOU ARE AN INDIVIDUAL MEMBER RESIDENT IN A MEMBER COUNTRY OF THE EUROPEAN UNION. IF YOU ARE A CONSUMER BASED IN THE EUROPEAN UNION, YOU MAY MAKE A CLAIM IN THE COURTS OF THE COUNTRY WHERE YOU RESIDE.
Member agrees that any claim, controversy or legal dispute arising out of or relating to this Agreement and Waiver (hereinafter, a “Dispute”) will be resolved through binding arbitration. This arbitration agreement is intended to be broadly interpreted and includes claims, controversies or disputes arising out of or relating to any aspect of the relationship between Member and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, all of which shall be considered within the definition of “Dispute.” Member will reimburse Company for all costs and attorney’s fees incurred or will be reasonably incurred to enforce any provision of this Agreement. All unpaid amounts will accrue interest at the rate of 1% per month or the maximum allowable by law.
Legal notices may be sent to email@example.com. Notices to Member may be sent either to the email address supplied in Member’s account or to the address supplied by Member as part of its registration data. In addition, Company may broadcast notices or messages through the Website to inform of changes to the Website or other matters of importance, and such broadcasts shall constitute notice to Member to the extent permitted by applicable law. Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by mail, return receipt requested; (d) on the delivery date if transmitted by email; or within three (3) days after Company posts a notice on the Website.
24) FORCE MAJEURE.
Company will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by events outside its reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Company’s reasonable control including, but not limited to, restrictions of law, regulations, orders, or other governmental directives, labor disputes, acts of God, third party mechanical or other equipment breakdowns, terrorist attacks, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunications or digital transmission links, Internet failures or delays, storms or other similar events.
26) CHILDREN’S ONLINE PRIVACY PROTECTION ACT (COPPA).
Member acknowledges that the law requires parental consent to collect or use information from a child under 13. If you are a child under 13, please show these Terms of Service to your parent or legal guardian, and do not use the Services without verifiable parental consent pursuant to the Children’s Online Privacy Protection Act. If you as the Member are a parent or legal guardian of a child under the age of 13, who may access or use the Services, you hereby give your express consent for that child to use the Services, which include all the features and functionality pertaining to your Subscription, including social media/community features. You represent and warrant that you will not allow a child under the age of 13 to use the Services if you do not agree to the provisions of this Section.
27) NO THIRD PARTY BENEFICIARIES.
No person or entity not a party to these Terms of Service will be deemed to be a third party beneficiary of these Terms of Service or any provision hereof.
If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Service will remain in full force and effect.
29) WAIVER AND AMENDMENT.
If Company fails to insist upon strict performance of Member’s obligations under any of these terms and conditions, or if Company fails to exercise any of the rights or remedies to which it is entitled under these Terms of Service, this will not constitute a waiver of such rights or remedies and will not relieve Member from compliance with such obligations. No waiver by Company of any default will constitute a waiver of any subsequent default, and no waiver by Company of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to Member in writing.
30) GEOGRAPHIC RESTRICTIONS.
Software, functionality, and/or features (collectively, “Service Functionality”), that may be available on or through Website from time-to-time, is subject to United States Export Controls. No Service Functionality from the Website may be downloaded or exported (a) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By downloading or using any Service Functionality, Member represents and warrants that it (and its Authorized End Users, where applicable) are not located in, under the control of, or a national or resident of any such country or on any such list. Although the Website may be accessible worldwide, Company makes no representation that materials on the Website are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal, is prohibited. Those who choose to access the Website from other locations do so at their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.
31) COMPLETE UNDERSTANDING.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND WAIVER, YOU ARE AFFIRMING THAT YOU HAVE READ THIS AGREEMENT AND WAIVER AND FULLY UNDERSTAND ITS TERMS. YOU UNDERSTAND THAT YOU AND ALL REGISTERED PARTIES ARE GIVING UP SUBSTANTIAL RIGHTS, INCLUDING THE RIGHT TO SUE. YOU ACKNOWLEDGE THAT YOU ARE AGREEING TO THIS AGREEMENT AND WAIVER FREELY AND VOLUNTARILY, AND INTEND BY YOUR ACCEPTANCE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW. IF THE PARTICIPANT IS A MINOR OR INCAPACITATED ADULT, YOU CERTIFY THAT YOU ARE THE PARTICIPANT’S PARENT OR GUARDIAN AND AGREE TO THIS WAIVER AND RELEASE FROM LIABILITY ON BEHALF OF THE PARTICIPANT.