Last Updated: April 10, 2023
Pacheco Enterprises, Inc, dba Julia Pacheco, owner and operator of https://www.juliapacheco.com and its affiliates, subsidiaries and parent companies (collectively, “Pacheco Enterprises”, “us”, “we” “Company” or “our”) are pleased to provide you with access to and use of our websites, content, streaming services, products, goods, equipment, services, promotions, software, technology and any other materials (collectively, “Pacheco Enterprises Services” “Program” ) that we may provide.
THE SERVICES ARE NOT INTENDED FOR ANYONE UNDER THE AGE OF 13 OR 16 IF YOU ARE IN THE EU. IF YOU ARE 13 TO 17 YEARS OF AGE, OR CONSIDERED A MINOR IN YOUR JURISDICTION, YOU MUST ACCESS AND/OR USE ANY SERVICES ONLY WITH THE CONSENT OF YOUR PARENT OR GUARDIAN TO THE FOLLOWING TERMS:
- Company’s Intellectual Property; Limited License to Company Services.
- Ownership. You acknowledge and agree that the Company Services, and any logos, names, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation any copyrights, patents, trademarks, proprietary or other rights arising therefrom are owned by Company or its affiliates, licensors or suppliers. Furthermore, you acknowledge and agree that the source and object code of certain Company Services and the format, directories, queries, algorithms, structure and organization of the same are the intellectual property, proprietary and confidential information of Company and its affiliates, licensors and suppliers. You expressly agree that you will do nothing inconsistent with Company’s ownership of the Company Services, and that you gain no rights, title, or interest in or to any Company Services, except as stated in these Terms or any executed written agreement between you and Company. In addition, except as expressly set forth in these Terms, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Company or any third party.
- All programs created by Company are intended solely for those who have paid for access to the content. Those with access to the content may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works, transmit, or in any way exploit or share any such version of the product, or sell or offer it for sale.
- Your use of any materials found in any Program or Content other than that expressly authorized in this agreement or by a separate written assignment, is not permitted (“Unauthorized Use”). Unauthorized use includes, but is not limited to, any attempt to resell any of our materials, repackage or paraphrase our tools or materials in your own voice, or create, sell or distribute any materials, books, courses, program, or digital equivalents teaching our tools. You are also prohibited from creating your own certification course based on our framework and materials. You cannot use this curriculum to sell or re-create a version of it as your own – this is considered copyright infringement and is a violation of these binding contract terms. KARMA IS REAL = DON’T STEAL!
- Limited License. For any Company Services which enable you to use any software, content, or other materials owned or licensed by us only after you become validly authorized by us, we grant you a limited, revocable, non-exclusive, non-sub-licensable, non-transferable license to access and use the specific Company Services, and any related software, content, or other materials FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
- Restrictions. You are prohibited from, and expressly agree that you will not: (i) circumvent or disable any content protection system or digital rights management technology used with any Company Services; (ii) decompile, reverse engineer, disassemble or otherwise reduce any Company Services to a human-readable form; (iii) remove identification, copyright or other proprietary notices in or on the Company Services; (iv) access or use any Company Services in an unlawful or unauthorized manner or in a manner that suggests an association with our content, products, services or brands, unless you have an executed agreement with us that allows for such activity; (v) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Company Services or any part thereof, except as expressly authorized in these Terms or as part of the Company Services provided to you; (vi) introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Company Services or connected network, or interfere with any person or entity’s use or enjoyment of any Company Services; (vii) access, monitor, or copy any element of the Company Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or (viii) sell, resell, or make commercial use of the Company Services, unless you have an executed agreement with us that expressly allows for such activity. You may not access or use any Company Service in violation of United States export control and economic sanctions requirements. By accessing or otherwise using any services, content or software through any Company Services, you represent and warrant that: (ix) your access to and use of the Company Services, or any content or software therein, will comply with any and all requirements in these Terms; (x) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties; and (xi) you will comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any Company Services and our websites.
- Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THE Company SERVICES, INCLUDING WITHOUT LIMITATION, ANY PRODUCTS, GOODS, SERVICES, WEBSITES, APPLICATIONS, HEALTH AND WELLNESS CONTENT AND ADVICE, AND NUTRITIONAL ADVICE OR INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE Company SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE MAKE NO GUARANTEE OR WARRANTY THAT THE Company SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. WE FURTHER MAKE NO GUARANTEE OR WARRANTY AS TO THE PARTICULAR HEALTH AND WELLNESS GOALS, RESULTS, BENEFITS OR OUTCOMES THAT MAY BE ACHIEVED OR OBTAINED THROUGH USE OF ANY Company SERVICES. YOU AGREE TO USE THE Company SERVICES AT YOUR SOLE RISK.YOU WILL NOT HOLD Company OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE Company SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE Company SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH OUR WEBSITES, INCLUDING WITHOUT LIMITATION, INFORMATION OR PRODUCTS PROVIDED BY LICENSE TO US FROM THIRD PARTIES. CERTAIN WARRANTIES WITH RESPECT TO PARTICULAR PRODUCTS/SERVICES ACCESSED FOR SALE THROUGH OUR WEBSITES MAY BE AVAILABLE THROUGH MANUFACTURERS’ WARRANTIES, THOUGH NOT THROUGH Company; PLEASE READ THE WARRANTIES INCLUDED IN THE DOCUMENTATION PROVIDED ALONG WITH THOSE PRODUCTS/SERVICES FOR FURTHER DETAILS. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD-PARTY CONTENT, THIRD-PARTY SERVICES, OR THIRD-PARTY PRODUCTS (INCLUDING PRODUCT DESCRIPTIONS) DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH OUR WEBSITES.
- Mobile Networks; Texting. When you access any Company Services through a mobile network, such as one of our mobile applications, or you sign up for our text message programs, your network or roaming provider’s messaging, data and other rates and fees may apply. Not all Company Services may work with your network provider or device.
- Your Content and Account.
- You agree to indemnify and hold us and our affiliates and subsidiaries, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
We will not be responsible or liable to any third party for any User Generated Content. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by other users of the Company Services, or any authors, experts, celebrity trainers or otherwise. User Generated Content shall not state or reflect the attitudes and opinions of Company, and any views and opinions expressed on our websites shall not be attributed to or otherwise endorsed by Company. You agree to comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any Company Services and our websites.
- License to Your User Generated Content. We do not claim ownership to your User Generated Content; however, you grant us a perpetual, fully paid-up, non-exclusive, sub-licensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works of, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in any and all media and channels now known or hereafter devised (including in connection with the Company Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. This includes without limitation our use of your User Generated Content in connection with any advertising, product packaging, printed publications, presentations, promotional materials, events and associated marketing materials, television and digital commercials, videos, social media websites, or on our websites. We are not, however, obligated to use your User Generated Content.To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a limited, non-transferable, non-exclusive license to create a derivative work using our copyrighted works as required for the sole purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
- Public Forums. Certain Company Services include public forums, which include without limitation, discussion forums, message boards, blogs, chat rooms or instant messaging features. You acknowledge these public forums are for public and not private communications. You further acknowledge that any User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum and for the consequences of submitting or posting same.
- User Conduct. You must only use the Company Services for lawful purposes, and you must not use them in a way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of any Company Services. In using any Company Services, and in particular, our websites, you expressly acknowledge you are prohibited from, and agree that you will not without our prior express written consent:
- copy, reproduce, or improperly use or access any content on our websites;
- modify, distribute, or re-post any content on our websites for any purpose; or
- use the content on our websites for any commercial exploitation whatsoever.
- disrupt or interfere with the security of, or otherwise abuse, our websites, or any services, system resources, accounts, servers, or networks connected to or accessible through our websites or affiliated or linked sites;
- access content, data or portions of our websites which are not intended for you, or log onto a server or account that you are not authorized to access;
- attempt to probe, scan, or test the vulnerability of the Company Services, including websites, applications, or any associated system or network, or breach security or authentication measures without proper authorization;
- access any Company Services or our websites through any automated means, such as “robots,” “spiders,” or “offline readers”;
- interfere or attempt to interfere with the use of our websites or the Company Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
- use any data mining, “scraping”, web crawling, robots, or similar data gathering and extraction methods on our websites;
- harass, “stalk”, disrupt or interfere with any other user’s enjoyment of our websites or affiliated or linked sites;
- upload, post, or otherwise transmit through or on our websites any viruses or other harmful, disruptive, or destructive files;
- use, frame, or utilize framing techniques to enclose any Company trademark, logo, or other proprietary information (including the images found at our websites, the content of any text, or the layout/design of any page or form contained on a page) without Company’s express written consent;
- use meta tags or any other “hidden text” utilizing an Company name, trademark, or product name without Company’s express written consent;
- deeplink to our websites without Company’s express written consent;
- create or use a false identity on our websites, share your account information, or allow any person besides yourself to use your account to access our websites;
- harvest or otherwise collect information about Company users, including email addresses and phone numbers;
- download, “rip,” or otherwise attempt to obtain unauthorized access to any Company Services, content or other materials; and
- post any copyrighted material unless the copyright is owned by you.
- We may also post separate rules regarding your behavior in any online community or forum, whether hosted on the Company’s website or a third-party website, which may be updated from time to time. You agree that you are bound by those rules and they are expressly incorporated into this Agreement.
- Your Account; Passwords. Certain Company Services may permit or require you to create an account to enjoy additional services and benefits that we provide. You agree to provide and maintain accurate, current and complete information for your accounts, including as applicable, your name, contact, and payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness, or if applicable, provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide.We have adopted and implemented a policy that provides for the suspension or termination, in appropriate circumstances and in our sole and absolute discretion, of the accounts of users who violate these Terms, are repeat infringers of copyright, or engage in, encourage or advocate for illegal conduct.
- You are responsible for maintaining the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You may not share your password or other login information with any person; any use of your account by any person other than yourself is grounds for suspension or termination of your account. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Company Services. You agree not to use the account, username or password of any other account holder at any time. Company will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
- Member Public Profiles. If or when you create an account with us, you may be asked to provide certain personal information, such as your name and e-mail address. Some of this information may be publicly viewable by others, such as other Company members or account holders.Company relies on its members to provide current and accurate information, and we do not, and cannot, investigate information contained in member public profiles. Company does not represent, warrant or guarantee the accuracy of public profile information, and hereby disclaims all responsibility or liability for any information provided by members by means of public profiles or otherwise. You are solely responsible for your interactions with other members. You acknowledge and agree that Company does not (i) screen its members; (ii) inquire into the backgrounds of its members; or (iii) review or verify the statements of its members, including without limitation, information or representations contained in public profiles. Company does not warrant, endorse or guarantee the conduct of its members or their compatibility with you, and you agree to exercise all precautions in your interactions with other members. Like all open forums on the Internet or social media, you should always be careful about what you share in a public forum, and in particular, you should never share your password, social security number or any other personal information.
- Company’s Products/Services; Websites; Orders.
- Product and Service Descriptions, Price and Other Information. We have taken reasonable precautions to ensure that all service descriptions, prices and other information shown on our websites are correct and fairly described. However, when ordering products or services through our websites, please note that:
- Company reserves the right to not accept any orders if there is a material error in the description of the product or service, or if the price advertised is incorrect;
- Company reserves the right to refuse or discontinue the supply of any product or service to any customer, or change, suspend or discontinue any aspect of our websites at any time in our sole and absolute discretion;
- all prices are displayed in United States Dollars unless expressly indicated otherwise;
- packaging and contents may vary from that shown on our websites;
- any weights, dimensions, and capacities shown on our websites are approximate only;
- when you place an order, we estimate the tax applicable to your order and include that estimate in the total for your convenience (the final tax amount will be based on the then-current rate as established by the taxing authority, charged to your payment card, and reflected in the order confirmation and package invoice we provide to you); and
- all items are subject to availability and we will inform you as soon as reasonably possible if any product or service you ordered is not available and whether we may offer you an alternative of equal or higher quality and value. Please also note that we may be required to change the terms of any products, goods or services that we offer and/or you purchase. This includes without limitation changes to prices, taxes, shipping and handling amounts, specifications, delivery times, and/or package contents. Company will not incur any obligation as a result of such change. By continuing to accept products, goods and/or services after we have notified you of a change to any terms, you will be deemed to have accepted the change.
- Your Personal and Payment Information. When you provide any information to us for any reason, such as to sign up for an offer or purchase our Company Services, you agree to only provide true, accurate, current, and complete information. By providing any credit card or other payment card information to us, you represent that such payment information is correct, and belongs to you or you have the authority to use such payment card. In the case of e-mail, you must provide an accurate e-mail address that is registered to you. You are responsible for promptly updating your information with any changes, especially to keep your billing information current. You must promptly notify us if your payment card is cancelled (for example, for loss or theft). Changes to such information can be made by contacting Customer Service firstname.lastname@example.org. To help keep your account current and prevent service interruption, you acknowledge Company may update your payment card information on file when it is set to expire or based on updates it receives from the bank that issues your payment card. You agree that your placement of an electronic order on our websites is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
- Credit card/debit card. If paying by debit card or credit card, you give us permission to automatically charge your credit or debit card for all fees and charges due and payable to the Company, without any additional authorization, for which you will receive an electronic receipt. You also agree that the Company is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services). If You elect for the payment plan, You hereby authorize the Company to charge your credit card or debit card automatically according to the terms set forth in the Fees section above. Regarding recurring payments and outstanding invoices: If all payment methods we have on file for you are declined for payment of your monthly fee, you must provide a new payment method promptly or your Program access will be terminated. If you do not request a refund according to the Program’s Refund Policy set forth below, you are required by law to complete the remaining payments of your payment plan and you authorize us (without notice to you, unless required by applicable law) to collect any and all outstanding payments, using any eligible payment method we have on record for your account.
- Company’s Reservation of Rights. Company reserves the right to suspend or terminate your interaction with any Company Services for any or no reason in its sole and absolute discretion, including your access, use or purchase of any products, goods or services that we provide. If you are accessing, using and/or purchasing any Company Services on behalf of a company, you represent you have sufficient authority to bind that company to these Terms.
- By using and/or purchasing our Program, you understand and agree that, except for the limited refund policy described above, all sales are final and no refunds will be provided.
- Discipline. Company reserves the right, in its sole discretion, to determine how to discipline a participant who violates these Terms. Therefore, if a participant disagrees with how the Company disciplines another member and requests a refund, the Company will deny such request. Furthermore, if a participant violates these Terms, the Company reserves the right, in its sole discretion, to offer the participant another opportunity to abide by these Terms. If a participant disagrees with the Company offering another participant a second opportunity to follow these terms, no grounds for a participant to receive a refund would be created, and any request for a refund on this basis shall be denied. If, in the Company’s sole right and discretion, you persist with behaviors or actions that violate these Terms, the Company may terminate your access and participation in the Program without notice and without refund.
- Product and Service Descriptions, Price and Other Information. We have taken reasonable precautions to ensure that all service descriptions, prices and other information shown on our websites are correct and fairly described. However, when ordering products or services through our websites, please note that:
- Important Notice About Our about Food or Nutrition Content.
- The Company Services And Information Do Not Constitute Medical Advice. Although Company provides its content, products, and services with your health and safety in mind, it is critical that you consult your physician, follow all provided safety and other instructions, and obtain authorization before accessing or using any Company Services, especially if you are prone to injuries, are pregnant or nursing, or have any other unique or special medical conditions. The Company Services are provided for informational purposes only, and are not intended to diagnose any medical condition, replace the advice of a healthcare professional, or provide any medical advice, diagnosis, or treatment. The information made available on or through the Company Services should not be relied upon when making medical decisions. YOUR USE OF ANY Company SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND Company. Your individual results using Company Services may vary. Exercise and proper diet are necessary to achieve and maintain weight loss and muscle definition. The testimonials featured on our websites may have used more than one Company product or extended the program to achieve their maximum results.
- Nutrition Information. Certain Company Services, such as nutrition plans, provide nutrition, food, caloric and other related information designed to help our customers eat healthy to reach their health and wellness goals. While any nutrition information we may provide is designed to safely align with our related exercise regimens, you must consult your physician before beginning any nutrition plan or altering any dietary regimen, especially if you have any unique or special medical needs or conditions, such as food allergies, dietary restrictions or if you are pregnant or nursing.
- Assumption of Risk. You expressly acknowledge and agree that your access, use and/or involvement with any Company Services may involve potentially dangerous and physical activities that may lead to personal and/or bodily injury, death, loss of services, loss of consortium, or damage to or loss of property or privacy. You hereby acknowledge and willingly accept these risks and agree to unconditionally release and hold harmless Company from and against all claims, suits, causes of action, costs, expenses or liability arising out of or related to your access, use and/or involvement with any Company Services.
- Piracy. Counterfeit products, plagiarism and ripping off content hurt us all. While it causes immeasurable harm on a global basis—such as funding terrorism and organized crime, causing identity theft, and contributing to lost business and jobs—it also significantly harms companies, governments, and consumers. If you ever learn of any counterfeit activity, please let us know by sending an email to email@example.com.
- Copyright Policy and Copyright Agent. It is Company’s policy to respect the copyright and other intellectual property rights of others. Company may remove content from its websites or other properties that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Company complies with the Digital Millennium Copyright Act. If you believe that content available on or through the online Company Services, or accessible via links posted on online Company Services, infringes your copyright, you or your authorized agent may submit a notification to us, as set forth in this policy. Please send a notification including all of the information described below (“Notification”) to our copyright agent by mail or e-mail using the contact information provided below. You may be held liable for damages and attorneys’ fees if you make any material misrepresentations in a Notification. Therefore, if you are not sure whether content located on or accessible via a link posted on the online Company Services infringes your copyright, you should contact an attorney. A Notification must include the following:
- Identification of the copyright claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of works.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material (preferably a link to the material).
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent, or the law.
- The physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- A statement that the information in the Notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please direct Notifications via email to: firstname.lastname@example.org. Upon receipt of a substantially compliant Notification regarding an alleged copyright violation, we will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing. We will also terminate in appropriate circumstances users who are repeat infringers.
- DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
- Disputes. The terms of this Section shall apply to all Disputes between you and Company. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Company arising under or relating to any Company Services, Company’s websites, these Terms, or any other transaction involving you and Company, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND Company AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU FOR (i) TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii) COPYRIGHT INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK INFRINGEMENT OR DILUTION; DISPUTE ALSO DOES NOT INCLUDE DEBT COLLECTION AND FAILED PAYMENT CLAIMS. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
- Binding Arbitration. You and Company further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
- Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
- Dispute Notice. In the event of a Dispute, you or Company must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice must be emailed to email@example.com. If Company and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Company may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
- WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND Company AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AND Company AGREE THAT NO DISPUTE SHALL PROCEED BY WAY OF CLASS ARBITRATION WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES.
- Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in these Terms, except that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Boise, Idaho, at your option.
- Initiation of Arbitration Proceeding. If either you or Company decide to arbitrate a Dispute, we agree to the following procedure:
- Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
- Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:JAMS
707 Wilshire Blvd
Los Angeles, CA 90017, U.S.A.
- Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
- Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
- Arbitration Fees. Each Party is responsible for their own and a equal split of the arbitration fees, including JAMS filing, administration, and arbitrator fees for any arbitration commenced by either Party pursuant to provisions of these Terms.
- Opt-out. You may elect to opt-out (exclude yourself) from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in these Terms by sending a written letter to the Company Notice Address within thirty (30) days of your assent to these Terms (including the purchase of any Company Service or use of our websites) that specifies: (i) your name; (ii) your mailing address; and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to arbitration.
- Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and Company agree that if Company makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Company’s address) in these Terms, Company will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
- Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
- Exclusive Venue for Other Controversies. Company and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Ada County, Idaho, or the United States District Court for the Central District of Idaho, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
- Indemnification; Limitation of Liability.
- Indemnification. You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers harmless from and against any claim, action, demand, loss, suit, or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to your improper use of any Company Services, your violation of these Terms, or your violation of any rights of a third party.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY AND/OR IF WE WERE ADVISED OF SUCH DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO Company OR ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF ANY Company SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF Company AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST NINETY (90) DAYS TO Company FOR ANY Company SERVICES. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN Company AND YOU. THE COMPANY SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. Company WILL NOT BE LIABLE FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CIRCUMSTANCE BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
- Governing Law. You agree that the laws of the state of Utah, without regard to principles of conflict of laws, will exclusively govern these Terms and Conditions and any Dispute between you and Company. As the Company Services are controlled by Company from Idaho, Idaho law will apply regardless of your residence or the location where you use Company Services.
- Submissions and Unsolicited Ideas Policies. Company is constantly developing new products and offers. Since we are constantly working on dozens of new projects at any one time, and also provided with many overlapping ideas by individuals outside Company, we cannot sign non-disclosure agreements to review any submissions or for follow up conversations, or promise that any ideas or products you submit are not already being developed by us. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.
- International Users. Our websites are controlled, operated, and administered by Company from its offices within the United States of America. Company makes no representation or warranty that the materials contained within our websites are appropriate or available for use at other locations outside of the United States, and access to them from territories where the contents or products available through the websites are illegal is prohibited. You may not use the websites or export the content or products in violation of U.S. export laws and regulations. If you access our websites from a location outside of the United States, you are responsible for compliance with any and all local laws, rules, regulations and ordinances.
- Notices. All notices required or permitted to be given under these Terms must be in writing. Company may provide you notice by sending you an e-mail to the address on file with us, which you agree electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR E-MAIL ADDRESS ON FILE WITH Company IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY Company OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Company by means of email to firstname.lastname@example.org. Such notice to Company shall be effective upon receipt of notice by Company.
- Severability. If any provision of these Terms (except for Section 9), or a part thereof, shall be unlawful, void or for any reason unenforceable, then that provision or part thereof shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions or parts thereof.
- Termination. Notwithstanding anything to the contrary in these Terms, Company reserves the right, without notice and in its sole and absolute discretion, for any reason or no reason, to terminate your access and use of any Company Services, including to block or prevent your access and use of any of our websites. You agree that Company shall not be liable for any termination of your access and/or use of our websites.
- No Third Party Beneficiaries. Except as set forth in these Terms, only you and Company may enforce these Terms; no third party shall be entitled to enforce these Terms.
- Survival. The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
- Waiver. No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing signed by the CEO and or the legal counsel of Company in order to be effective.
- Assignment. Company may assign these Terms to any person or entity at any time, for any reason, with or without notice to you.
- Amendments; Entire Agreement. These Terms may not be amended unless in a signed writing by an executive (Vice President or above in title) of Company. These Terms constitute the final, exclusive and complete agreement between you and Company regarding the subject matter hereof and supersede all agreements, communications and course of dealings between you and Company.
- Language. It is the express intent of the parties that these Terms and all related documents have been written in English.
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