Terms and Conditions
Welcome to vivirinstitute.com website (the "Site").
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE YOU START TO USE THE SITE. BY USING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND CONDITIONS. IF YOU DO NOT WANT TO AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS OR USE THE SITE.
NOTICE: THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION AGREEMENT. YOU AGREE THAT ANY CLAIMS YOU MAY HAVE AGAINST US RELATING TO THE SITE, THESE TERMS AND CONDITIONS OR ANY TERMS AND CONDITIONS CONTAINED HEREIN MUST BE ARBITRATED, AND YOU EXPRESSLY WAIVE THE RIGHT TO (1) ASSERT CLAIMS AGAINST US IN COURT; (2) PARTICIPATE IN A REPRESENTATIVE OR CLASS ACTION; AND (3) HAVE A JURY HEAR YOUR CASE. YOU EXPRESSLY CONSENT TO HAVE ALL OF YOUR CLAIMS ARBITRATED ON AN INDIVIDUAL BASIS ONLY.
Hercules Emotional Fitness Institute, LLC d/b/a Vivir Emotional Fitness Institute ("Vivir" "We" "Us" or "Our") provides the content and services available on the Site to you subject to the following terms and conditions ("Terms and Conditions"). By accessing or using the Site, accessing, downloading or using any content, information, services, features or resources available or enabled on the Site, or clicking any button or taking any other action to signify your acceptance of these Terms and Conditions, you (i) are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and Conditions which include our Privacy Policy and all other policies of Vivir, all of which are incorporated herein by reference, (ii) represent you are of legal age in your jurisdiction of residence to form a binding contract, and (iii) represent that you have the authority to enter into these Terms and Conditions, our Privacy Policy and all other policies of Vivir.
1. Privacy Policy
Please review our Privacy Policy which also governs your visit to the Site.
2. Intellectual Property
All content, information, services, features or resources available or enabled on the Site available on or downloadable from the Site, including but not limited to text, graphics, logos, button icons, images, audio clips, data compilations, video content, and software, and the compilation thereof (collectively, the "Content") is the property of Vivir, our affiliates, partners or licensors, and is protected by United States and international copyright and other intellectual property laws.
The trademarks, logos, and service marks displayed on the Site (collectively, the "Trademarks") are the registered and/or unregistered marks of Vivir, our affiliates, partners or licensors, in the United States and other countries, and are protected by United States and international trademark laws.
Except as set forth in the limited licenses in Section 3 below, or as required under applicable law, neither the Content or Trademarks nor any portion of the Site may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose without our prior written consent.
3. Limited Licenses and Use of the Site
We grant you a limited, revocable, and non-exclusive license to access and make personal use of the Site. This limited license does not include the right to, and you are not permitted to: (i) frame or utilize framing techniques to enclose the Site or any portion thereof; (ii) modify or download the Site or Content (except caching or as necessary to view the Site); (iii) make any use of the Site or Content other than personal use; (iv) create any derivative work based upon either the Site or Content; (v) collect account information for the benefit of yourself or another party; (vi) use any meta tags, keywords, adwords or any other "hidden text" utilizing our name or the Trademarks or to otherwise use the Trademarks; or (vii) use software robots, spiders, crawlers, or similar data gathering and extraction tools, or take any other action that may impose an unreasonable burden or load on our infrastructure.
We also grant you a limited, revocable, and nonexclusive license to create a hyperlink to the home page of the Site for personal, non-commercial use only. A website that links to the Site (i) may link to, but not replicate, our Content; (ii) may not imply that we are endorsing such website or its services or products; (iii) may not misrepresent its relationship with us; (iv) may not contain content that could be construed as distasteful, obscene, offensive or controversial, and may contain only content that is lawful and appropriate for all ages; (v) may not portray us or our products or services, in a false, misleading, derogatory, or otherwise offensive or objectionable manner, or associate us with undesirable products, services, or opinions; and (vi) may not use any Trademark. We may, in our sole discretion, request that you remove any link to the Site, and upon receipt of such request, you shall immediately remove such link.
You further agree not to or permit any other person to:
(a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Site or any portion of the Site;
(b) modify, translate, adapt, merge, make derivative works or services of, circumvent, decrypt, disassemble, decompile, reverse compile or reverse engineer any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law;
(c) use any data from the Site for the development of any software program (including but not limited to training a machine learning or artificial intelligence (AI) system);
(d) copy, reproduce, distribute, republish, download, display, post or transmit the Site or any portion of the Site, or Content, in any form or by any means, unless expressly stated herein;
(e) transmit, distribute or upload programs or material that contain malicious code, including, but not limited to viruses, time bombs, cancelbots, worms, Trojan horses, Easter eggs, spyware, or other potentially harmful programs or other materials or information;
(f) send or enable the transmission of junk email, duplicative or unsolicited messages, or so-called “spamming” or “phishing”;
(g) disrupt, impair, alter or otherwise interfere with the functions, features, Content or use of the Site;
(h) violate any laws, regulations, judicial or governmental order, any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any third party;
(i) gain unauthorized access to the Site; or
(j) improperly display any TCP/IP packet header or part of the header information in any email or other postings.
Any unauthorized use by you of the Site terminates the limited licenses set forth in this Section 3 without prejudice to any other remedy provided by applicable law or these Terms and Conditions.
By posting or submitting any material (including, without limitation, comments, blog entries, photos and videos) to us via the Site, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are eighteen years of age or older. In addition, when you submit or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.
You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Law, as amended. As such, the copyrights in those works shall belong to us from their creation. Thus, we shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as we determine. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to us all proprietary rights, including without limitation, all copyrights and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.
You acknowledge that we have the right but not the obligation to use and display any postings or contributions of any kind and that we may elect to cease the use and display of any such materials (or any portion thereof), at any time for any reason whatsoever.
4. Your Obligations and Responsibilities
In the access or use of the Site, you shall comply with these Terms and Conditions and the special warnings or instructions for access or use posted on the Site. You shall act always in accordance with the law, custom and in good faith. You may not make any change or alteration to the Site or any Content or services that may appear on this Site and may not impair in any way the integrity or operation of the Site. In addition, when you sign up for one of our courses or to access our material or subscribe to receive our emails or newsletter, you indicate your acceptance of these Terms and Conditions and the Privacy Policy by following the instructions and signifying that you agree by clicking the relevant button or link.
Without limiting the generality of any other provision of these Terms and Conditions, if you breach any of these Terms and Conditions (including our Privacy Policy), you shall be liable for all the losses and damages that this may cause to Vivir, our affiliates, partners or licensors.
5. Your Account
You may subscribe or sign up to receive our services or email newsletters. When doing so, it may require you to provide personally identifiable information such as your name, email address, website/LinkedIn URL, and/or professional title. You agree to provide true, accurate, current and complete information about yourself as prompted by the Site’s registration form. If we have reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). Our use of any personally identifiable information you provide to us as part of the registration process is governed by the terms of our Privacy Policy.
You are responsible for maintaining the confidentiality of your any username and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your username and/or password.
We reserve the right to refuse service and/or terminate your access without prior notice if you violate these Terms and Conditions (including our Privacy Policy).
You agree to provide true, accurate, current and complete information about yourself as prompted by the Site’s registration forms. If we have reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). Our use of any personally identifiable information you provide to us as part of the registration process is governed by the terms of our Privacy Policy.
6. Purchase of Services and Refund Policy
The products and services available on the Site are for personal use only. You may not sell or resell any of the products or services you purchase or otherwise receive from us. We have the right to refuse or limit any orders, and to limit quantities. We may grant or deny cancellation requests for individual orders in our sole and absolute discretion, including, without limitation, if we believe that your order may result in the violation of our Terms and Conditions (including our Privacy Policy).
We attempt to be as accurate as possible when describing our products and services on the Site; however, to the extent permitted by applicable law, we do not warrant that the product descriptions or other content available on the Site are accurate, complete, reliable, current, or error-free.
Our sole liability and your exclusive remedy concerning purchase of products or services through the Site is for us to .
All sales of products or services through the Site are final, and no refunds will be issued unless otherwise agreed to by us; we reserve the right to grant or deny requests for refund in our sole and absolute discretion (“Refund Policy”). Notwithstanding the foregoing, we may occasionally make errors in the stated prices on this Site. If a product or service’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation.
The display of products and services on the Site invites you to make us an offer to buy the products or services. Your order is an offer to buy the products or services, which we accept only by delivering the products or services ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before delivery in the event of inaccuracies, errors, product unavailability, or for any other reason.
You authorize us (and any payment processor) to charge your payment card for all purchases you make. We accept the forms of payment stated on the Site and, for credit card payments, charge your credit card when your order is processed. The bank issuing your credit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the payment information you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (a) you providing complete personal, account, transaction and any other information needed, (b) authorization of the payment by your credit or debit card company, and (c) acceptance of your payment. You may cancel your payment prior to your final submission of it to us. We may, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Services in breach of any applicable law or regulation; (ii) if you use the Site in breach of these Terms; (iii) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; or (v) failure to cooperate in an investigation or provide additional information when requested.
We may, from time to time in our sole discretion, offer certain promotional codes. Promotional codes are non-transferable and are not redeemable for cash. The promotion code must be redeemed at the time of checkout, unless otherwise advertised. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by Vivir at any time in its sole discretion.
Stated prices do not include any customs duties, sales, use, value-added, excise, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase.
7. Third Party Links
We are not responsible for the content of any off-website pages or any other websites linked to or from the Site. Links appearing on the Site are for convenience only and are not an endorsement by us. We are not responsible for examining or evaluating the offerings or products of, off-website pages or any other websites linked to or from the Site, nor do we assume any responsibility or liability for the actions, content, products, or services of such pages and websites, including, without limitation, their privacy policies and terms and conditions.
8. Submissions
Our Site may provide you an opportunity to provide feedback or other user content or submissions (“Submission”). At our sole discretion we will determine whether to post your Submission on the Site. In submitting a Submission, you agree to grant us an irrevocable, assignable, worldwide license and sublicense to use your Submission on our Site, media advertisements, social media platforms and any other media of our choosing, as well as the right to use and display the name, photograph and any other biographical information that you submit with any Submission. You will receive no compensation or royalties for the use of your Submission. If you submit a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You further represent and warrant that such Submission is not in breach any of these Terms and Conditions, nor does the Submission violate any law or judicial or governmental order. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission. You agree to indemnify and hold us harmless from and against any and all claims arising from or in connection with breach of your representations and warranties in this section 8.
9. Copyright Infringement Notification and Procedure
If you believe that this Site contains text, images, or other elements that infringe your copyrights in your work, please follow these procedures.
All notifications of claimed copyright infringement related to this Site should be sent only to our Designated Agent identified below. Note that the Designated Agent may change from time to time, so you should check these Terms and Conditions before sending any notification to us.
(a) Written notification must be submitted by email or mail to the following Designated Agent:
Vivir Copyright Agent
(b) Full Address of Designated Agent to Which Notification Should be Sent:
Vivir Copyright Agent
433 N. Camden Drive, 4th floor
Beverly Hills, CA 90210
(c) Telephone Number of Designated Agent:
310.855.3200
(d) Email Address of Designated Agent:
gsultan@eisnerlaw.com
In order to comply with Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
(a) An electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the copyright owner of the copyrighted work(s);
(b) Identification of the copyrighted work(s) that you or the copyright owner claim has been infringed;
(c) A description of the material that you or the copyright owner claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page as to this Website where it is lawfully posted;
(d) A clear description of where the infringing material is located on our website, including as applicable its URL, so that we can locate the material;
(e) Your name, address, telephone number, and e-mail address;
(f) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(g) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
10. Disclaimers; Representations and Warranties; Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS, LIABILITY OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE, RESULTING FROM OR ARISING OUT OF ANYONE'S USE OF THE SITE, ANY CONTENT POSTED ON THE SITE OR TRANSMITTED TO OTHER USERS OR ANY INTERACTIONS BETWEEN OR AMONG USERS OF THE SITE, WHETHER ONLINE OR OFFLINE.
THE SITE IS PRESENTED "AS IS" AND "AS AVAILABLE." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF ANY MATERIALS CONTAINED IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES CONCERNING THE AVAILABILITY, PLAYABILITY, DISPLAYABILITY, ACCURACY, PRECISION, CORRECTNESS, THOROUGHNESS, COMPLETENESS, OR USEFULNESS OF THE SITE OR CONTENT ON THE SITE. WE ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. WE MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SITE, CONTENT OR ANY PRODUCTS WE PROVIDE WILL MEET YOUR REQUIREMENTS OR (B) YOUR USE OF THE SITE OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
THE CONTENT AND INFORMATION LOCATED ON THE SITE ARE DESIGNED FOR EDUCATIONAL, INFORMATIONAL, AND ENTERTAINMENT PURPOSES ONLY AND IS NOT CONSTRUED TO BE HEALTH ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SITE AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SITE.
IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT AVAILABLE ON OR OBTAINED THROUGH THE SITE OR THE SERVICES. THE USE OF INFORMATION OR CONTENT PROVIDED THROUGH THE SITE IS SOLELY AT YOUR OWN RISK. ANY INFORMATION YOU FIND HERE, ON WEBSITES WHICH WE LINK TO OR OBTAIN THROUGH CONTACTS YOU MAY MAKE THROUGH THIS SITE, OR PRODUCTS SUGGESTED OR SERVICES OFFERED BY THE SITE, SHOULD BE VERIFIED WITH YOUR PROFESSIONAL HEALTH CARE PROVIDER.
NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH THE SITE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PSYCHOLOGICAL OR PSYCHIATRIC COUNSELING CARE. FOR PURPOSES OF THESE TERMS AND CONDITIONS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR COURSE OF ACTION OR ADVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR ANY CONDITION REQUIRING IMMEDIATE ATTENTION, CALL YOUR DOCTOR OR 911 IMMEDIATELY. VIVIR DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC MEDICAL TREATMENT PLAN, PHYSICAL FITNESS EXERCISE OR PSYCHOLOGICAL OR PSYCHIATRIC COUNSELING REGIMEN, SPECIFIC MEDICAL TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED OR OFFERED ON OR PURSUANT TO THE SITE. RELIANCE ON ANY INFORMATION OR PRODUCTS LINKED TO BY VIVIR, ITS AGENTS OR EMPLOYEES, OTHERS APPEARING ON THIS SITE AT THE INVITATION OF VIVIR, OR OTHER VISITORS TO THE SITE IS SOLELY AT YOUR OWN RISK AND VIVIR HEREBY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION THEREWITH.
VIVIR DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITE, AND VIVIR WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. VIVIR WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE RESPONSIBLE OR LIABLE (WHETHER IN CONTRACT, TORT OR OTHERWISE), UNDER ANY CIRCUMSTANCES, FOR ANY (a) INTERRUPTION OF BUSINESS; (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE; (c) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (D) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEBSITE LINKS ON THE SITE; (E) COMPUTER VIRUSES, SYSTEM FAILURES OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE SITE, INCLUDING DURING HYPERLINK TO OR FROM THIRD PARTY WEBSITES (F) ANY INACCURACIES OR OMISSIONS IN CONTENT OR (G) EVENTS BEYOND OUR REASONABLE CONTROL.
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, OUR ENTIRE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT SHALL EXCEED THE GREATER OF THE AMOUNT PAID FOR AN AFFECTED PRODUCT OR ONE HUNDRED DOLLARS ($100.00). FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) RELATED TO THE SITE REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND ITS CONTENT.
11. Indemnification
You agree to defend, indemnify and hold us harmless from and against any loss, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, or demand resulting from your use of the Site, your Submissions, breach of these Terms and Conditions or Privacy Policy. You also agree to indemnify and hold us harmless from any loss, damages, or costs, including reasonable attorneys' fees, resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure.
12. Termination; Survival
We may terminate, change, suspend, restrict or discontinue any aspect of the Site at any time if we believe you are in breach of these Terms and Conditions or applicable law, or for any other reason in our discretion, without notice or liability. These Terms and Conditions will terminate commensurate with the discontinuance or terminations of your Site use privileges. However, the Terms and Conditions will nevertheless continue to apply and be binding upon you and any persons you represent, jointly and severally, regarding your prior access to and use of the Site and Content, and anything connected with, relating to or arising therefrom.
We may modify or terminate the Site, Content or the services, your access thereto, in part or as a whole, at any time, for any or no reason, and without notice or liability to you.
We may deny you access to all or part of the Site at any time for any reason (including if you violate these Terms and Conditions, as determined in our sole and absolute discretion) or no reason at all.
If you terminate your access, you will remain liable under these Terms and Conditions for any order placed prior to termination. If we terminate your right to access the Site, these Terms and Conditions will terminate and all rights you have to access the Site or services will immediately terminate.
13. Disputes; Choice of Law; Arbitration; Class Action Waiver
With respect to any dispute regarding the Site or these Terms and Conditions, all rights and obligations and all actions concerning these Terms and Conditions, shall be governed by the laws of New York, as if these Terms and Conditions was a contract wholly entered into and wholly performed within New York. By using the Site, you agree that any dispute in any manner arising out of or relating in any way to these Terms and Conditions, shall be submitted to binding arbitration with Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to JAMS’ arbitration rules, held before a single neutral arbitrator in the New York, New York area. The parties to arbitration may use legal counsel at their own expense, and the prevailing party shall be entitled to its reasonable attorney’s fees. All costs of arbitration (including arbitrator fees) shall be paid by the non-prevailing party in any claim. Claims brought on behalf of or allegedly representing or including other persons or entities, including but not limited to any class, consolidated, representative, collective or private attorney general action, are referred to herein as a “Class Action.” Notwithstanding anything else in the Terms and Conditions or the JAMS rules but subject to the exception for public injunctive relief below, any parties subject to this arbitration provision shall be barred from bringing or participating in any Class Action related to a dispute covered by this arbitration provision. You also acknowledge and understand that, with respect to any dispute with us, our officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Agreement: YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE. However, if these Class Action restrictions are ever deemed illegal or unenforceable, they shall be severed from this arbitration provision. In that event, any Class Action shall by exempt from this arbitration provision and brought in court. This arbitration provision is subject to the Federal Arbitration Act, and may be enforced in any court of competent jurisdiction. Judgment on any arbitration award may be entered in any court having valid jurisdiction thereof. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court with appropriate jurisdiction or public injunctive relief as appropriate and as allowed under this agreement or by law, in which case the parties submit to the sole and exclusive jurisdiction and venue of the state and federal courts of New York.
14. International Users
The Site, Content and services are controlled and offered by us from its facilities in the United States of America. We make no representations that the Site, Content and services are appropriate or available for use in other locations. Those who access or use the Site, Content and services from other countries do so at their own volition and are responsible for compliance with local law.
15. General
You acknowledge and agree that these Terms and Conditions, which include our Privacy Policy and Refund Policy, constitute the complete and exclusive agreement between us concerning your use of the Site, and supersede and govern all prior proposals, agreements, or other communications.
We reserve the right, in our sole discretion, to change these Terms and Conditions at any time by posting the changes on the Site and any changes are effective immediately.
Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, or other form of joint enterprise between us. Our failure to require your performance of any provision hereof shall not affect our full right to require such performance at any time thereafter, nor shall our waiver of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of these Terms and Conditions shall be unenforceable or invalid under any applicable law or be so held by any applicable arbitral award or court decision, such unenforceability or invalidity shall not render these Terms and Conditions unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
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