Last Updated: October 2020
TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. These Terms and Conditions (the “Terms”) govern your access or use of the ToneItUp.com and my.toneitup.com website (the “Website”), the Tone It Up software application, and any other applications, websites, content, products, and services (collectively, the “Service”) made available by Tone It Up, Inc., or its representatives, affiliates, officers, or directors (collectively, “TIU,” “we,” “us,” or “our”). By using or accessing the Service, you agree to these Terms. If you do not agree to these Terms, please do not use the Service or use TIU’s products or services, and, if applicable, cancel your registered user account or subscription with us.
PLEASE READ: THESE TERMS CONTAIN A MANDATORY ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS BY REQUIRING ANY DISPUTE BETWEEN YOU AND TIU, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND REQUIRING YOU TO FORGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES IN SECTION 2 BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. BY ENTERING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
- 1. Binding Arbitration & Class Action Waiver
Mandatory Binding Arbitration:
By agreeing to these Terms, you agree that all disputes, claims, or causes of action arising from or related to the Services or these Terms, or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), will be resolved through confidential, binding arbitration and not in a court of law in any jurisdiction, and not in a class, collective, representative, or consolidated action or proceeding, as further set forth below.
You and TIU agree that the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”) shall govern any controversy or claim related to the Service or the Terms, including the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, notwithstanding any choice of law or other provision in these Terms. It is the parties’ intent that the Act and the rules promulgated by JAMS Mediation, Arbitration and ADR Services (“JAMS”) shall preempt all state laws to the fullest extent permitted by law. You and TIU further agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes concerning the interpretation, applicability, enforceability or formation of this Arbitration Agreement. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement, in whole or in part, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Class Action Waiver:
You acknowledge and agree that you and TIU are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and TIU agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section 1 shall be deemed null and void in its entirety, and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, you and TIU each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trade secrets, patents or other intellectual property rights.
You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within 30 days following the date you first agree to these Terms, by email at [email protected] or by mail at Tone It Up, Inc., 1110 Manhattan Avenue, Manhattan Beach, California 90266. If mailed, the Opt-Out Notice must be post-marked no later than 30 days following the date you first agree to these Terms. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the Arbitration Agreement, all other parts of the Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may enter with TIU.
Rules & Procedures:
Arbitration proceedings will be administered in accordance with the Act and the rules promulgated by JAMS and any supplementary rules then in effect (the “JAMS Rules”), except as modified by these Terms. Discovery in said arbitration shall be limited in scope to the specifics of liability on the Dispute, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control.
Arbitration may be conducted in person, through the submission of documents, by phone, online, or in person in in Los Angeles, California or at another mutually agreed location. All Disputes shall be resolved by one arbitrator; however, for Disputes exceeding $5,000,000, upon your or TIU’s request, the Dispute shall be decided by three Arbitrators. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules. We will reimburse those fees for claims totaling less than $10,000, unless the Arbitrator finds your Dispute frivolous.
All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the Arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the Arbitrator(s), upon a showing of good cause or by the parties’ agreement, may extend the commencement of the hearing for up to an additional sixty (60) days. The Arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The Arbitrator(s) will have the authority to decide whether any Dispute is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS Rules of an arbitration demand is the equivalent of the filing of a lawsuit. The Arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of TIU to: (i) exercise self-help remedies, such as, but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as, but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. Except as provided in this Arbitration Agreement, the prevailing party in any action or arbitration related to these Terms shall be entitled to its reasonable attorney fees and costs.
Changes to Arbitration Agreement:
Notwithstanding the provisions of this Section 1, if TIU changes any of the terms of this Section 1 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us a written notice of such rejection within 30 days of the of the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided either by email at [email protected] or by mail at Tone It Up, Inc. 1110 Manhattan Avenue, Manhattan Beach, CA 90266. In order to be effective, the notice must include your full name, address, and signature, and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and TIU in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
The terms of this paragraph survive any termination of the Terms.
- 2. Terms & Conditions – In General
For purposes of these Terms, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, TIU, including, without limitation, its subsidiaries.
By using the Service, you agree to be legally bound and to abide by these Terms, just as if you had signed this agreement. If you do not comply with these Terms at any time, we reserve the right, if applicable, to terminate your password, user account, and/or access to the Service (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Service, including, but not limited to, (i) restricting the time the Website is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user’s right to use the Service. You agree that any termination or cancellation of your access to, or use of, the Service may be effected without prior notice. If you do not abide by the provisions of these Terms, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to such information and/or files, or our Website. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Service.
From time to time, we may supplement these Terms with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on the Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms.
- 3. Restrictions on Use of Materials
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display the Service and the material provided therein for your personal, noncommercial use, provided that you comply fully with the provisions of these Terms. You acknowledge that the Service contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on this Website are trademarks of their respective owners. TONE IT UP is the trade name and the registered trademark and service mark of TIU. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on the Service. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
Tone It Up’s paid social media partners can be identified by the hashtag #TIUPartner. Tone It Up reserves the rights to their content and rights to leverage #TIUPartner content in marketing materials and communication.
- 4. Copyright
All the Sites’ materials, including, without limitation, all TIU product logos, design, text, graphics, software, other files, and the selection and arrangement thereof (the “Content”) are Copyright © ____-2019 Tone It Up, Inc. ALL RIGHTS RESERVED. Unless expressly stated otherwise, TIU or its suppliers or licensors own and retain other proprietary rights in all products available through the Sites. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of TIU or the respective copyright owner. You may not, without the express written permission of TIU or the respective copyright owner, (a) copy, publish, or post any materials on any computer network or broadcast or publications media; (b) modify the materials; or (c) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (a) sell, resell, or make commercial use of the Sites, its content, or services or products obtained through the Sites; (b) collect and use of any product listings or descriptions; (c) make derivative uses of the Sites or its Content; or (d) use of any data mining, robots, or similar data gathering and extraction methods. 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 TIU or any third party.
- 5. Becoming a Registered User
There is no cost to become a registered user of the Service. You do not have to become a registered user to use the Service. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of our Service. You must register in accordance with instructions that you will find on the Service to participate in, and to contribute to, any Community Area or use of the “Public Profile” feature of our Service. A “Community Area” means any blog, personal page, group page, chat room, message board, bulletin board, recipe swap, or similar activity where you can communicate with other users of our Website or post your own Content.
If you elect to become a registered user of our Service, you agree to provide us with true, accurate and complete information about yourself (“Registered User Data”), and to maintain and promptly update the Registered User Data and any other information you provide to us, to keep it accurate. Without limiting any other provision of these Terms, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of our Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of this Website. You further agree not to register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website.
- 6. Privacy
- 7. Community Standards and Conduct Guidelines
You acknowledge that all Content posted, emailed, or otherwise transmitted to or on this Website, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the “Postings”), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to the Service. We do not control the Postings posted, emailed or otherwise transmitted on our Website by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of our Service (as described below), you understand that by using the Service, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through the Service.
You agree not to use the Service (including any Community Areas) to:
- a) Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
- b) Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
- c) Impersonate any person or entity, including, but not limited to any user of the Service, a director, officer, employee, shareholder, agent or representative of TIU, our affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with TIU, or our affiliates or any other person or entity;
- d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through the Service;
- e) Upload, post, email or otherwise transmit any Postings or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- f) Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party;
- g) Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation;
- h) Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- i) Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of a Community Area (or other portion of the Service) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Service;
- Interfere with or disrupt the Service or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- j) Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
- k) “Stalk”, “Cyberstalk” or otherwise harass another user, employee of the Service or TIU; or
- l) Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Service, including user names or passwords; or access or attempt to access another user’s account without his or her consent;
Your privilege to use the Service (including the Community Areas) and contribute to discussions on the Community Areas depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of the Service and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any of these Terms, we may terminate, in our sole discretion, your use of, or participation in, any Community Area.
- 8. Submissions
TIU may alter, adapt, or edit the Submissions and any further material created under these Terms, and market and exploit it entirely at TIU’s sole discretion. TIU is not obliged to make any use of the Submissions or exercise any of the rights granted by these Terms.
Users of the Service must only post Submissions that are owned by, and features, themselves, and no other third parties.
- 9. Parental or Guardian Permission
Some of the Content on the Service may not be appropriate for children. CHILDREN UNDER THE AGE OF 13 ARE NOT PERMITTED TO USE THE SERVICE. We strongly recommend that children between the ages of 13 and 18 ask for their parent’s or guardian’s permission before using our Service.
- 10. Links
These Terms apply only to the Service, and not to the websites of any third parties. We may provide, or third parties may provide, links to other worldwide websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
- 11. Third Party Products and Services
You may order services, merchandise or other products through our Service from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
- 12. Copyright Complaints
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate the rights of any user to use our Service (or any part thereof) who infringes the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information
- a) a physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;
- b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on this website are covered by a single notification, a representative list of such works);
- c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website;
- d) your name, mailing address, telephone number and email address;
- e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- f) a statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices with respect to this website should be sent to our designated agent for notice of claims of copyright infringement: Tone It Up, Inc., 8730 Sunset Boulevard, Suite 470, Los Angeles, CA 90069.
- 13. Password and User Security
If you are a registered user of the Service, you are entirely responsible for maintaining the confidentiality of your password and user account information. You agree to notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password. You are entirely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorized use of your user account or any other breach of security known to you.
- 14. Health Disclaimer
The Service includes weight loss management and information applications and content published over the Internet, which are intended only to assist users in their personal weight loss efforts. TIU is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in the Service should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment.
You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen. The Service is intended for use only by healthy adult individuals. Except for our pre-natal workouts, which are offered to our pregnant and post-partum members, the Service is not intended for use by minors, pregnant women, or individuals with any type of health condition. All individuals, regardless of condition, should seek professional medical advice and clearance prior to initiating any form of weight loss effort or fitness regimen. There are inherent risks associated with exercise and fitness programs, and individuals engage in these activities at their own risks.
All information is intended for your general knowledge only and is not a substitute for medical advice or treatment for specific medical conditions. This information on the Service has not been evaluated by the FDA and is not intended to treat, diagnose, cure or prevent any disease. We cannot and do not give you medical advice. You should seek prompt medical care for any specific health issues and consult your physician before purchasing any product(s). We do not recommend the self-management of health problems. Information obtained by using our services is not exhaustive and does not cover all diseases, ailments, physical conditions or their treatment.
If you are being treated for an illness, taking prescription medication, or following a therapeutic diet to treat a disease, it is especially important to show the “Tone It Up Fat Burning System” weight loss plan (“Plan”) to your physician. Any modifications made to the Plan by your physician should be followed.
The Plan is designed for a safe rate of weight loss – up to two pounds per week (after the first three week). If you lose at a greater rate, you must review the Plan’s guidelines and adapt them, if necessary, to avoid rapid weight loss. Not following the Plan as designed may pose the risk of developing health complications associated with rapid weight loss.
- 15. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER TIU, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE SERVICE OR ANY FUNCTION CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL.
NEITHER TIU, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THIS WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS.
- 16. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SERVICE OR ANY WEBSITE OR WEBSITES LINKED TO THE SERVICE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICE; OR (F) ANY OTHER MATTER RELATING TO OUR SERVICE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SERVICE. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VERSED’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- 17. Indemnification
You agree to indemnify, hold harmless and, at our option, defend TIU and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys fees and expenses) arising from your improper use of the Service or our products or offerings, your violation of these Terms, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
- 18. Governing Law and Choice of Forum
These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. For any Dispute not subject to Section 1 above, you and TIU agree that any action at law or in equity arising out of or relating to the Website, the Service, or these Terms shall be filed only in the state or federal courts located in Los Angeles County in the State of California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
- 19. International Users
The Service is controlled, operated, and administered by TIU from its offices within the United States of America. TIU makes no representation that materials on the Service 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 Service are illegal is prohibited. You may not use the Service or export the content or products in violation of U.S. export laws and regulations. If you access the Service from a location outside of the United States, you are responsible for compliance with all local laws.
- 20. Termination
Notwithstanding any of these Terms, TIU reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Service and to block or prevent future access to and use of the Service. You agree that TIU shall not be liable for any termination of your use of or access to the Service.
- 21. Third Party Rights
Only you and TIU shall be entitled to enforce these Terms. No third party shall be entitled to enforce any of these Terms and conditions.
- 22. Changes to Terms & Conditions
We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms at any time. You should check these Terms periodically for changes. By using the Service after we post any changes to these Terms, you agree to accept those changes, whether or not you have reviewed them.
- 23. Miscellaneous Terms
In any action against us arising from the use of the Service, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms, together with the Subscription Agreement (if applicable), are the entire agreement between you and us relating to the subject matter herein. If you are a subscriber to one of our online subscription offerings or products, in the event of any conflict between these Terms and the Subscription Agreement, the Subscription Agreement shall control. These Terms may be modified only by our posting of changes to these Terms on the Service, or by written agreement of both parties. Each time you access the Service, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under these Terms. These Terms will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms, or to exercise any right under the Terms, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.