Terms & Conditions
These terms are provided by Evidence Based Psychology LLC (“EBP”) and its Affiliates in order to enable our valued customers (“you” for the purpose of these Terms & Conditions (our “Terms”)) to learn about and purchase certain products, services, content and merchandise, including digital downloads and access to online courses (our “Products and Services”).
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF ANY OF THESE TERMS ARE UNACCEPTABLE DO NOT USE THE PRODUCT AND SERVICE.
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS. IF YOU ARE ACTING ON BEHALF OF A COMPANY OR ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE USE OF ANY PRODUCTS AND SERVICES OFFERED BY US.
1. The Products and Services; Purchases.
A. The purpose of the susandavid.com Site and Product and Services is to enable you to learn about Susan David and her ideas, submit your comments, make purchases and to sign up to receive additional information about Susan David and other products and services that may be of interest to you. Provided you comply with these Terms, our Privacy Policy, and our Terms and Conditions of Sale policy available at checkout (collectively, the “Policies”), we grant you a limited, non-exclusive, nontransferable, non-sublicensable license to access and use the Product and Services for this purpose. In order to access certain Products and Services, you may need to first create an account (“Account”). When you create an Account, we will collect certain information from you, which may include your payment information. To learn how we collect, store, use and share your information, please read our Terms of Service on susandavid.com which are hereby incorporated into these Terms by reference. You are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer. We cannot and will not be liable for any loss or damage arising from any unauthorized access or use of your User ID or password. You must be 18 years or older to register for an Account and make purchases. You may never use another person’s Account without permission. We reserve the right to terminate your Account, cancel any order, or to refuse, restrict, or discontinue service or access to the Products and Services (or any portions, components, or features thereof) to you or any other person or entity, for any reason or for no reason whatsoever, at any time, without notice or liability. You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Service, your account details, or any files or other Content which is contained in your account. You acknowledge and agree that while we may not currently have set a fixed upper limit on the amount of storage space used for the provision of the Service, or the duration of time that we will store any information on your behalf, such fixed upper limits or temporal limits may be set by us at any time, in our sole discretion.
B. All purchases of Products and Services, and all access to Products and Services that are granted by EBP through our scholarship process, are governed by the Terms and Conditions of Sale available at susandavid.com and checkout which are hereby incorporated by reference into this Agreement.
2. Acceptable Use Policy.
A. You agree that (i) you will use the Products and Services solely for your own, non-commercial, personal use in accordance with this Agreement and in accordance with any specific rules or usage provisions specified by us on the Service, (ii) all information supplied by you to us will be true, accurate, current and complete, (iii) you may receive electronic communications (e.g.,email notices) from us from time to time. We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without liability. You may not record, copy, distribute or otherwise transmit any live offerings (such as Live Virtual Classes or live one-on-one sessions).
B. You acknowledge and agree that your use of the Products and Services, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to back-up such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Products and Services for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of this Agreement and/or any rule or policy of ours and/or any local, state, or federal law or regulation.
C. You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including any loss or damage which we may suffer) of any such breach.
D. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings.
E. If you provide a mobile or residential phone number at the time you create an Account or access the Products and Services, you warrant and represent to us that you are either the account owner of any mobile or residential phone numbers you provide to the Company, or you have the express permission of the account holder to provide such numbers (“Provided Numbers”). You expressly consent that we may call any Provided Number or text any Provided Number with account, marketing and advertising messages made using an automatic telephone dialing system. You also understand that consent to receive calls and text messages is not a requirement for your use of the Products and Services. You may revoke your consent at any time.
F. You will not use the Products and Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties.
G. You will not use the Products and Services for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, libelous, lewd, libelous, obscene, pornographic, threatening, or tortuous material, or any false or misleading material, or any other material (including links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful.
H. You will not permit or otherwise enable unauthorized users to access and/or use the Products and Service.
I. You will not use the Service to export software or data in violation of applicable U.S. laws or regulations;
J. You will not by any means whether now known or hereafter devised, including by any means of artificial intelligence, sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service.
K. You will not remove any copyright, trademark, patent or other proprietary notices from the Service.
L. You will not by any means whether now known or hereafter devised distribute, publish, exhibit, or otherwise use the Service, in any manner and for any purpose not expressly permitted under this Agreement.
M. You will not frame or utilize framing techniques to enclose the Service, or any portion thereof.
N. You will not exploit the Service or collect any data incorporated in the Service in any automated manner through the use of bots, metaspiders, crawlers or any other automated means.
O. You will not register as a user of the Service by providing false, inaccurate, or misleading information.
P. You will not post hyperlinks to commercial services or Sites.
Q. You will not impersonate any person or entity, including, but not limited to, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity. You will not state or imply or represent that you are certified by, licensed by, qualified by, or endorsed by EBP, Susan David, or any Affiliates to use any of the Products and Services, trademarks or other content for any purpose including in training, coaching, teaching or providing any products or services to clients unless expressly permitted under this agreement.
R. You will not collect personal data about other users of the Service for commercial or any other purposes.
S. You will not post irrelevant Content (as defined in Section 6 below), repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure.
T. You will not attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service).
U. You will not make available Content (as defined in Section 6 below) that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement, except to the extent such Content is provided to you by us or one of our Affiliates for a purpose specifically authorized by us in writing.
V. You will not create or attempt to create multiple user accounts.
W. You acknowledge that Products and Services may be processed or hosted by a Third-Party Host. Third-Party Host may have its own terms of use, privacy policy, and other requirements, for which EBP is not responsible. EBP disclaims any and all responsibility and liability for any outage, defect, failure, or other accessibility or performance issues caused by Third-Party Host.
X. You shall not store or transmit material in violation of third-party privacy rights.
Y. You shall not interfere with or disrupt the integrity or performance of the Products and Services or third-party data contained therein.
Z. You shall not access the Products and Services to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, or graphics of the Products and Services, (3) copy any ideas, features, functions, or graphics of the Products and Services, or (4) determine whether the Products and Services are within the scope of any patent.
3. Services and Products. We take pride in our Services and Products and try to be accurate in our descriptions. However, we do not warrant that our Services and Products descriptions are 100% accurate, complete, reliable, current, or error-free. If Services and Products Product is not as described, your sole remedy is to return it in unused condition for a refund (to the extent that such Service and Product is eligible for a refund. Except where noted otherwise, the price displayed for Services and Products is the full retail price. It does not include any applicable sales or other taxes that we may be required to collect.
4. Access to the Service and Products; Reservation of Rights.
A. We hereby give you a personal, worldwide, non-assignable and non-exclusive right to access and use the Products and Services in the manner and for the purposes expressly permitted by the Agreement. We also hereby grant you a limited, revocable, and non-exclusive right to create a hyperlink to the susandavid.com Site or subdomains thereof so long as the link does not portray us, our Affiliates, or products or services provided by us or our Affiliates in a false, misleading, derogatory, or otherwise offensive manner in our sole judgment. You may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service and any such attempt shall be null and void at the time of such attempt.
B. We reserve all right, title and interest in and to the Products and Services not expressly granted to you under this Agreement. There are no implied licenses under this Agreement.
5. User Content.
A. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Products and Services are the sole responsibility of the person from which such User Content originated. All such information is referred to as “User Content”.
B. You acknowledge that User Content presented to you as part of the Products and Services may be protected by intellectual property rights which are owned by the persons and/or entities that provide that User Content to us (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this User Content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that User Content, in writing.
C. We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all User Content.
D. You understand that by using the Products and Services you may be exposed to User Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Products and Services at your own risk.
E. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any User Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which we may suffer) by doing so.
6. Intellectual Property.
A. Unless otherwise expressly granted under this Agreement, EBP, its Affiliates, and their respective licensors reserve all of their right, title, and interest in and to the content of the susandavid.com Site, and all Products and Services, including all intellectual property rights in and/or related to the Products and Services and all of the content that is made available in connection with the Products and Services. This includes, but is not limited to, visual interfaces, interactive features, graphics, design, databases, the data contained therein (other than your data, which EBP will have the right to use as set forth in another section of this Agreement), computer code, products, and all other elements and components of the Products and Services. The content also includes, but is not limited to, information, text, data, graphics, sound recordings, audio and visual clips, logos, and software. You acknowledge that such content constitutes valuable proprietary information protected by copyright, trademark, and other applicable intellectual and proprietary rights and laws of the United States and other countries. EBP also owns the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world associated with the Products and Services. You acquire no ownership interest by accessing and using any of the Products and Services. No rights are granted to you or your end users other than as expressly set forth herein. For the avoidance of doubt, at the end of the Term or upon termination of this Agreement, you agree to cease all use of the Products and Services. Any reproduction, modification, copying, framing, publishing, display, posting, transmission, downloading, selling, creation of derivative works from, or distribution of the content, or any portion thereof, without the express prior written permission of EBP, is prohibited.
B. All EBP, Susan David brands and their Affiliates are trademarks of EBP and may not be copied, imitated, or used, in whole or in part, without our prior written permission. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks, or trade dress of EBP, Susan David or its Affiliates or licensors and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Other trademarks, product names and company names and logos displayed on the Site are the property of their respective owners.
C. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)), we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe a copyright is being infringed by a user of the Site, Products and Services, please provide written notice to our designated agent for notice of claims of copyright infringement at P.O. Box 620370, Newton, MA, 02462 or by emailing info@susandavid.com.
D. Your written notice must: contain your physical or electronic signature; identify the allegedly infringing material in a sufficiently precise manner to allow us to locate the material; contain adequate information by which we can contact you; contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner’s agent, or the law; and contain a statement that the information in the written notice is accurate.
7. Rights you grant to us.
A. You retain copyright and any other rights you already hold in User Content which you submit, post or display on or through, the Service.
B. By submitting, posting or displaying User Content, you give us a worldwide, perpetual, fully-sublicensable, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any User Content which you submit or post on or through the Service in any manner or media whatsoever, now known or hereafter developed.
C. By participating in any public forums made available in connection with the Service (including, without limitation, e-courses, conference calls, webinars, online interactive offerings, etc.,), you give us a right to: (i) record your voice by all means of recording technology (the results of which shall be deemed the “Recordings”); (ii) edit any such Recordings (in our sole discretion); and (iii) use such Recordings along with your name, photographs, and likenesses, in connection with the Service and our general business purposes, and all ancillary and subsidiary uses thereof, and all advertising and publicity therefor, and to exploit the Recordings and the public forum features and the Service in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity.
D. You agree that EBP and its Affiliates may use non-privileged communications, and non-Confidential Information resulting from the Products and Services, and any feedback, suggestions, or ideas you provide as examples in EBP’s portfolio of work and for future modifications of the Service, other products or services, advertising, or marketing materials. You grant EBP and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, assignable, sublicensable, transferable license to use, incorporate, and act upon any suggestion, enhancement request, recommendation, correction, feedback, or other inputs relating to the operation of EBP’s or its Affiliates’ services. For clarity, EBP retains the right to use, keep, and analyze de-identified and/or anonymized personal data, inclusive of data processed by EBP or 3rd Party Services, for the enhancement of Products and Services, addressing EBP’s customer requirements, in product and service development, and in written documentation about the services and their outcomes. Deidentified or anonymized personal data, for this Agreement, is defined as data which cannot pinpoint a specific individual.
D. You agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Products and Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully-paid up, royalty free license to use the feedback you provide to us in any way.
E. While EBP appreciates your interest, we ask that you never submit an idea, suggestion, or information that you consider to be confidential and/or proprietary. If you choose to ignore this request and submit any ideas, suggestions, and/ or information, please be aware that, except with respect to your personally identifiable information (which is governed by our Privacy Policy), all comments, suggestions, ideas, notes, drawings, concepts, or other information disclosed or offered to us by you through the Site (collectively, “Suggestions”) shall be deemed to be non-confidential and non-proprietary and shall become the exclusive property of EBP. Further, you understand and acknowledge that EBP employs both internal and external individuals and resources which may have already developed or may in the future develop ideas, concepts, and other information identical or similar to the Suggestions, and that EBP is only willing to consider the Suggestions on these terms. In any event, you acknowledge and agree that EBP assumes no obligation of confidentiality or nondisclosure, expressed or implied by considering the Suggestions. Without limitation, EBP shall exclusively own, and you hereby irrevocably transfer and assign to EBP all now known or hereafter existing rights in and to the Suggestions, and EBP shall be entitled to unrestricted use of the Suggestions for any purpose whatsoever, commercial or otherwise, without any form of compensation whatsoever.
F. You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you to us in connection with this Agreement and that we have no obligation to do so on your behalf.
G. Without limitation of the foregoing, in connection with User Content you submit, post or display via the Service, you affirm, represent, and warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use such User Content in the manner contemplated by the Service and this Agreement. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant us all of the license rights granted herein.
H. You understand that we may (i) transmit or distribute your User Content over various public networks and in various media; and (ii) make such changes to your User Content as are necessary to conform and adapt that User Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit us to take these actions.
I. You agree that EBP may use non-privileged communications and non-Confidential Information that result from the Products and Services as examples in EBP’s portfolio of work. You grant EBP and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, assignable, sublicensable, transferable license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by the Client or its end users relating to the operation of EBP’s or its Affiliates’ services. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, EBP shall have the right to use, retain and analyze de-identified and/or anonymized personal data, including personal data processed by EBP, or 3rd Party Services for the improvement of the Products and Services, and for use in EBP’s product and service development, to address EBP’s customers’ needs, and to be used in written works about the services and the outcomes thereof. For the purposes of this Agreement, deidentified or anonymized personal data is data which cannot identify one certain person.
J. You represent and warrant to us that you have all the rights, capacity, power and authority necessary to grant all of the above licenses.
8. Privacy Policy. For information about our data protection practices, please read our privacy policy available susandavid.com. This policy explains how we treat your personal information, and how we protect your privacy when you use the Service. You agree to the use of your data in accordance with our privacy policy.
9. Changes to Agreement. We reserve the right to change, amend and/or modify this Agreement, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Service or as otherwise provided by us. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of this Agreement. If you use the Service after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.UP TO HERE
10. NO WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. FOR AVOIDANCE OF DOUBT (1) THE PRODUCTS AND SERVICES ARE NOT DESIGNED TO, AND DO NOT PROVIDE, MEDICAL ADVICE, PROFESSIONAL DIAGNOSIS, OPINIONS, OR TREATMENT; (2) YOU AGREE THAT SERVICES WILL NOT BE USED AS A SUBSTITUTE FOR MEDICAL ADVICE OR PROFESSIONAL SERVICES, DIAGNOSIS, OPINIONS AND TREATMENTS; (3) NOTHING IN ANY ASPECT OF THE SUSANDAVID.COM SITE OR PRODUCTS AND SERVICES CAN BE CONSTRUED AS A PROMISE ABOUT THE OUTCOME AS A RESULT OF PARTICIPATING IN THE PRODUCTS AND SERVICES; (4) NOTHING IN ANY ASPECT OF THE SUSANDAVID.COM SITE OR PRODUCTS OR SERVICES CAN BE CONSTRUED AS ESTABLISHING A PATIENT RELATIONSHIP.
11. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, OR ANY OF THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
12. Release and Indemnification. You agree to release, indemnify and hold harmless us, our Affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys’ fees, with respect to (i) your use or misuse of, or reliance upon, the Service, (ii) your violation of this Agreement or rights of another, (iii) the Recordings, and/or (iv) any User Content you make available through the Service. For the avoidance of doubt, this section shall survive the termination of this Agreement.
13. California Waiver. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
14. New Jersey Waiver. IF YOU ARE ACCESSING THE SITE FROM NEW JERSEY, YOU (I) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE site; (II) IRREVOCABLY WAIVE ALL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SERVICE; AND (III) EXPRESSLY AGREE TO RELEASE AND DISCHARGE US , AND OUR AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITE, SITE CONTENT, ANY SERVICE OR ANY products; AND (IV) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST US FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON OUR PART AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
15. Term and Termination. This Agreement is effective until terminated by us or you. We shall have the right to terminate this Agreement including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. You may terminate this Agreement at any time by deleting your user account on the Service and discontinuing use of any and all parts of the Service. Upon termination of this Agreement for any reason, you shall immediately cease using the Service.
16. Governing Law and Venue for Disputes.
DISPUTE RESOLUTION; ARBITRATION; CHOICE OF LAW
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE SITE, CONTENT, ANY SERVICE OR ANY PRODUCTS, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SERVICE, OR YOUR AND OUR DEALINGS WITH ONE ANOTHER SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED BY JUDICIAL ARBITER GROUP, INC. (“JAG”) USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAG ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF JAG. IF JAG IS UNABLE OR UNWILLING TO ARBITRATE A DISPUTE, THEN THE DISPUTE MAY BE REFERRED TO ANY OTHER ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND WE AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE ARBITRATOR, YOU AND WE MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN LAS VEGAS, NEVADA. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. NEITHER YOU NOR WE WILL BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE, YOUR USE OF THE SERVICE, ANY PRODUCTS, OR YOUR AND OUR DEALINGS WITH ONE ANOTHER MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2)-YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION LOCATED IN MIDDLESEX COUNTY, MASSACHUSETTS OR THE UNITED STATES DISTRICT COURT LOCATED IN THE MIDDLESEX COUNTY, MASSACHUSETTS, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS ON LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICE AND YOUR RELATIONSHIP WITH US. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG OR BY CALLING 800-778-7879.
IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE SERVICE OR SUBMIT THROUGH THE SERVICE A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS:
P.O. Box 620370, Newton, MA, 02462 or by emailing info@susandavid.com.