These Terms of Service and Use (“TOS”) constitute a legally binding agreement between Web Presence, LLC, d/b/a OnlineReputation.com (the “Company”), and yourself (“You”). The Company offers a variety of online reputation management services (the “Services”). The Company collects and uses information from you to operate its website onlinereputation.com (the “Site”). These TOS incorporate by this reference the Company’s Privacy Policy, available here. Please read these TOS carefully and in their entirety before you contact the Company, purchase goods or Services from the Company, use the Services, use the Site, register for an Account, subscribe to the Company’s newsletter, or fill out a form on the Site. You agree to be bound to these TOS by doing any of the foregoing acts. If you do not agree to these TOS, then you are not permitted to do any of the foregoing acts.
THE SERVICES
The Company provides online reputation management services including but not necessarily limited to search engine optimization (commonly referred to as “SEO”), content removal, and content creation services. In general, customers hire the Company to promote specific content that they want people to be able to find on the internet, such as positive news about a specific company, individual, product, or event. Customers may also hire the Company to attempt to remove negative content, which the Company can sometimes, but not always, accomplish. If the Company cannot remove the content at issue, it may offer a customer what are known as “suppression services,” in which the Company creates and/or posts positive content about a customer in an effort to mitigate the reputational harm done by the existing negative content. The Company offers its services over the internet, which means its customers may be in different states, but due to legal restrictions not all of its services are always available in every state. If you order Services from the Company, you will be provided with a written contract or a written agreement (“Agreement”) setting forth the specific Services ordered, the charges for such services, and additional terms and conditions specific to those Services.
Persons under the age of 18 are not permitted to contact the Company, purchase goods or services from the Company, use the Services, use the Site, register for an Account, subscribe to the Company’s newsletter, or fill out a form on the Site. Persons who are eighteen (18) years of age or older may contact the Company, purchase goods or services from the Company, use the Services, use the Site, register for an Account, subscribe to the Company’s newsletter, or fill out a form on the Site. In no event may a person who is legally incompetent contact the Company, purchase goods or services from the Company, use the Services, use the Site, register for an Account, subscribe to the Company’s newsletter, or fill out a form on the Site.
CONTENT APPROVAL
The Company will provide any content it creates to you before the Company disseminates that content to the public. You have five (5) days after the Company provides such information to you for review to approve or reject the content. If you approve the content, the Company shall make the content available to the public. If you reject the content, you must notify the Company in writing within the five (5) day approval period and set forth the specific reasons for your rejection along with any suggestions you may have on how to edit the content to make it acceptable. Thereafter the Company shall in its sole, absolute, and unfettered discretion either decline to disseminate the content or edit the content to make it acceptable to you. If you do not respond within the five (5) day approval period the Company may, in its sole, absolute, and unfettered discretion, proceed to disseminate the content or continue to wait for your approval. If the Company is unable to disseminate the content as a result of your failure to respond within the five (5) day approval period it is possible that the Services will be interrupted as a result, which can lead to unforeseen costs and delays for which you will be liable and for which the Company shall not be liable. If you request that all content is approved before dissemination to the public, the Company is not responsible for delays in the dissemination of the content to the public, deliverables or campaign timelines.
LICENSE AND OWNERSHIP
The Company may ask you to provide information that the Company considers useful or necessary to providing the Services. By ordering the Services, you grant the Company and its authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the agreement), sub-licensable (as necessary to perform the Services) license to use, reproduce, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit any such material, information, or intellectual property, including but not necessarily limited to content, trademarks, logos, photos, videos, advertisements, information, and other materials, that you provide or identify to the Company (“Client Materials”). You acknowledge and agree that the Company will not own, subject to any Client Materials therein, any right, title, and interest in and to any materials, content, or other works of authorship created for you by or on behalf of the Company and used to provide you with the Services. By ordering the Services, you authorize the Company to create and use Client Materials, title, and trademarks only for the purpose of the Services. The Company acknowledges and agrees that you shall own all right, title, and interest in and to any Client Materials, and upon completion of the Services and upon your written request, to the extent it is commercially practicable to do so, the Company shall transfer to you any digital assets, content, online profiles, domain names and websites the Company creates for you while providing the Services, along with any applicable logins and passwords associated with said digital assets.
ACCOUNT CREATION
The Company may offer you the option to create an Account. Should you choose to create an Account, you will be prompted to provide information needed for the Company to open the Account, which information may include, but is not necessarily limited to, the following: your full name, address, telephone number, email address, date of birth, and/or payment information.
ACCOUNT RULES
You may contact the Company, purchase goods or services from the Company, use the Services, use the Site, register for an Account, use your Account, subscribe to the Company’s newsletter, and/or fill out a form on the Site only for personal or corporate use. Any other use is prohibited. You may open only one Account. You shall not exceed, or attempt to exceed, the authorizations associated with your Account and the Services. You shall not, directly or indirectly (i.e. through the use of a third party), access of attempt to access the Account of any other customer of the Company, nor shall you directly or indirectly distribute software, tools, or instructions to enable such access. You shall not use the Company, the Services, the Site, your Account, and/or the Company’s newsletter for any illegal, unlawful, or criminal activity, or in any manner that violates the rights of a third party. You may not grant access to your Account to any third party. If, despite this prohibition, you nonetheless decide to voluntarily grant access to your Account to a third party, you are responsible for any and all acts and omissions that such third party may take in connection with your Account. You shall hold the Company harmless for any acts or omissions taken by such third party, and shall indemnify the Company from any and all liability arising out of, connected to, or related to any act or omission of any third party using your Account on your behalf.
The Company reserves the right to review, monitor, record, and/or disclose any information as may be necessary to comply with any applicable laws, regulations, legal process, or governmental request. Should the Company determine, in its sole discretion, that the activity on your Account is suspicious or related to any act or omission that would violate these TOS, or any illegal, unlawful, or criminal activity, the Company may but is not required to terminate or suspend your Account, decline or delay any pending transactions, and/or decline or delay any new transactions.
RESPONSIBILITIES FOR ACCOUNT SECURITY
You shall keep your login and password associated with your Account confidential. You are responsible for safeguarding your Account, the login and password associated with your Account, your decryption key for your mobile device, and any security verification methods or information associated with your Account. You are hereby advised, and hereby accept the risk, that if you fail to maintain the confidentiality or security of your login, password, decryption key, or security verification methods, your Account may be accessed by third parties, and you may be harmed as a result. Possible harms include, but are not necessarily limited to, public disclosure of your Account, Client Content, the Services, disclosure of your financial details, harm to your reputation, extortion by third parties, and/or financial losses. In no event shall the Company be liable for any damages or losses which may be sustained, by you or by third parties, as a result of your failure to maintain the confidentiality and security of your login, password, decryption key, or security verification methods, or as a result of any your failure to act upon Account information notifications and security alerts. You shall immediately notify the Company in writing if you learn or suspect that your Account has been accessed without authorization, or that your login, password, decryption key, or security verification methods have been compromised. You can reach the Company’s Customer Service department at [email protected].
COMMUNICATIONS
The Company may send emails, texts or make calls to you regarding the Company goods or services you purchase from the Company, the Services, the Site, your Account, transactions involving your Account, the Company’s newsletter, forms you filled out on the Site, security notices, and/or changes to or improvements to any of the foregoing. These emails, texts or calls are required to maintain your Account and for the Company to provide the Services, transactions involving your Account, the Company’s newsletter, forms you filled out on the Site, security notices, and/or changes to or improvements to any of the foregoing. You agree to receive and review these emails, texts or calls from the Company. If you block or unsubscribe from these emails, texts or calls, the Company may but is not required to terminate your Account without further notice. In addition, the Company may from time to time send you emails, texts or calls about promotions or offers, which you may opt-out of by using the “Unsubscribe” link at the bottom of any such promotional email or text.
PAYMENT
The Company accepts payment via ACH direct deposit, check, credit card, debit card, or electronic funds transfer from your bank. In some situations, new Accounts may be subject to a 48-hour verification period as a precautionary measure against unauthorized credit card use. To assist in minimizing unauthorized card usage, please ensure that your credit card company has current information on file including any alternate addresses.
NO REFUNDS
You understand and agree that all payment obligations under your Agreement are non-cancelable and non-refundable. Unless specifically stated otherwise in your Agreement, the Company does not issue refunds, nor partial refunds, nor does it prorate its fees for Services in the event you prematurely terminate your Agreement with the Company before its performance is complete.
YOUR REPRESENTATIONS AND WARRANTIES
By accepting these TOS, contacting the Company, purchasing goods or Services from the Company, using the Services, using the Site, registering for an Account, subscribing to the Company’s newsletter, and/or filling out a form on the Site, you are representing and warranting that (1) you are at least eighteen years old; (2) you are legally competent; (3) you have the right to enter into agreements with the Company; (4) your execution and performance of such agreements does not violate any other contract or obligation to which you are a party or are otherwise bound; (5) you have accepted these TOS and the Privacy Policy in their entirety; (6) you have secured any necessary authorizations, including but not limited to authorization to utilize the payment method you select to pay for the Services as well as any goods you purchase from the Company; (7) all information you have provided or will provide to the Company is accurate and truthful; (8) the Client Materials do not infringe the intellectual property rights, including any patents, copyrights, trademarks, trade secrets, right of privacy, or right of publicity, of any person or entity; (9) your communications with the Company, purchase of goods or services from the Company, use of the Services, use of the Site, registration for an Account, subscription to the Company’s newsletter, and/or filling out a form on the Site shall at all times comply with all applicable laws, rules, regulations, and guidelines, and shall not infringe upon the rights of any other person or entity; and (10) you will not, now or in the future, either directly or through a third party, copy, modify, create derivative works, reverse engineer, disassemble, distribute, sell, or license to any third party the Services, the Site, your Account, and/or the Company’s newsletter, including any and all content therein, or any part thereof.
THE COMPANY’S DISCLAIMER OF WARRANTIES
The Site, the Services, the Account, and the Company’s newsletter are provided “as is” and “as available” basis without any warranty, whether express, implied, or statutory. The Company specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose, and/or non-infringement of third party rights. You acknowledge and agree that no such warranties exist and that you have not relied on any expectation of such warranties in deciding whether to accept these TOS.
NO WARRANTY AND NO GUARANTY
You understand and acknowledge that the Company makes no warranties or guarantees as to the effectiveness or results of the Services provided by the Company. You understand and acknowledge that the Company does not provide any warranties or guarantees, whether express, implied, or statutory, regarding the Services, the success or results of the Services with the Company. You understand and acknowledge that you have not relied on any warranties or guarantees in accepting these TOS or in entering into an Agreement with the Company, and you further understand and acknowledge that the Company has not and cannot guarantee results.
The Company will use commercially reasonable efforts to achieve your goals, but does not guarantee any particular result. The Company cannot and will not guarantee that it will be able to remove information in the possession or control of a third party, nor does it guarantee that positive content about you will appear in search results before negative content about you, nor does it guarantee that it will be able to suppress content about you in whole or in part. The results achieved in any particular case are dependent on a number of variables such as the prominence of the customer, the relative importance of positive content about the customer as opposed to negative content about the customer, and the decisions and actions of third parties that are outside of the Company’s control.
LIMITATION OF LIABILITY
In no event shall the company, including its members, managers, officers, directors, employees, contractors, agents, third-party payment processors, third-party services, suppliers, affiliates, joint venturers, attorneys, or representatives, be liable to you or anyone else for any consequential, indirect, exemplary, punitive, special, or incidental damages, including without limitation any lost data, unintended reputational harm, and/or lost profits. In all circumstances any liability incurred by the Company, regardless of whether such liability sounds in tort, contract, statute, or otherwise, shall be limited to amount the Company has received from you as payment for Services you have contracted from the company in the twelve (12) months preceding the accrual of the claim. You acknowledge and agree that the fees charged by the company are based upon this limitation of liability, reflect the allocation of risk between you and the company, and that without this limitation of liability the company would not enter into an Agreement with you.
The Company may suspend, alter, or terminate, with immediate effect and without notice, the operation of the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or Services offered by the Company, and shall not be liable to you or any third party for any damages resulting therefrom. The Company cannot guarantee, does not guarantee, that the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company, will always be available to you, and the Company shall not be liable for any damages resulting therefrom.
You hereby acknowledge and agree that it is your responsibility to verify information before acting on it, and any decisions you make based in whole or in part on the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or Services offered by the Company, are your sole responsibility, and the Company has no liability for such decisions or actions.
Any and all use of the internet carries inherent risks, including but not necessarily limited to viruses, malware, spyware, Trojans, worms, ransomware, phishing scams, spear-phishing scams, spoofing, intercepted communications, failure of communication, and/or failure of services. The Company shall not be liable for any damage or harm caused by these and other such risks, including but not necessarily limited to infection of your computer, systems, hardware, software, servers, networks, and other equipment. You shall utilize comprehensive antivirus and anti-spyware software on any device that you use in connection with the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company. You are hereby advised to use caution and reasonable sense when reviewing emails, text messages, and other communications that purport to originate from the Company, and to verify the authenticity of any communication that would appear suspicious to a reasonable person. As a reminder, the Company will never ask for your password, and any communication that purports to do so is a scam to which you should not respond, but which you should instead report to the Company for investigation. You can report any such concerns to the Company’s Customer Service department at [email protected]. While the Company strives to protect your information, the Company cannot and does not ensure or warrant the security or confidentiality of any information you provide to the Company. You acknowledge and assume this risk by accepting these TOS, contacting the Company, purchasing goods or services from the Company, using the Services, using the Site, registering for an Account, subscribing to the Company’s newsletter, and/or filling out a form on the Site.
THIRD-PARTY WEBSITES
The Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company, may include links to other websites or third party materials, which may be provided as a convenience, but the Company does not warrant or guarantee that such websites or third party materials are or shall remain accurate and available. The Company is not responsible for the content or services offered by any third party, or on any third-party websites.
RIGHTS RESERVED TO COMPANY
The Company reserves the right to correct any errors, inaccuracies, or omissions on the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company, at any time without prior notice.
The Company makes efforts to collect, develop, and maintain correct information pertaining to you, your Account, the Services, information you provide to the Company through the Site, communications you send to or receive from the Company, and/or goods or services you purchase from the Company, but you are hereby advised and acknowledge that the information the Company collects, develops, or maintains may contain errors or inaccuracies. In general you will know this information better than the Company, are in a better position to correct any such errors or inaccuracies, and are therefore responsible for ensuring the accuracy of that information and correcting any errors or inaccuracies that you know about or should know about upon the exercise of reasonable diligence. You should immediately report any errors or inaccuracies to the Company’s Customer Service department at [email protected].
The Company reserves the right, in its sole, absolute, and unfettered discretion, to change prices of goods and services at any time, for any reason, and without prior notice. The Company reserves the right to refuse to process any order in which your payment is declined for any reason. The Company will endeavor to provide you with notice of any such declined transaction, but is not required to provide such notice, and is not liable for any harm resulting from the failure to provide such notice. The Company reserves the right to decline, modify, limit, delay, or cancel orders or transactions that, in the Company’s sole, absolute, and unfettered discretion, appear to be from unauthorized parties. The Company reserves the right to prohibit you from using anonymity tools, such as virtual private networks or other mechanisms or devices that obfuscate your identity, location, internet protocol (IP) address, and media access control address (MAC ID) from accessing or using the Site, the Services, your Account, the Company’s newsletter, forms on the Site, and/or goods or services offered by the Company. The Company reserves the right, in its sole, absolute, and unfettered discretion to decline to open an Account for you. The Company reserves the right, in its sole, absolute, and unfettered discretion, and except as the Company’s discretion may be limited by applicable law, to refuse service to anyone. The Company does not discriminate on the basis of race, color, religion, gender, gender expression, age, national origin, disability, marital status, sexual orientation, or military status, in any of its activities or operations, except for the age restrictions applicable to persons under eighteen years of age. The Company reserves the right, in its sole, absolute, and unfettered discretion, and at any time and for any reason including but not limited to maintenance, to suspend, restrict, limit, or terminate your access to the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company.
USE OF INFORMATION
The Company uses information in accordance with its Privacy Policy. In accordance therewith, the Company may choose or be required to disclose some or all of your information to third parties. You are hereby informed that the Company may submit inquiries to third parties to verify your identity and to confirm information you provide to the Company, for purposes including, but not necessarily limited to, preventing misidentification, fraud, suspicious activity, money laundering, and any other type of illegal, unlawful, or criminal activity. The Company may take action in response to the result of such inquiries, which result shall depend on the circumstances of the particular case, and which action shall be determined by the Company in its sole, absolute, and unfettered discretion. You hereby consent to such inquiries and disclosures of information.
ASSIGNMENT
The Company may transfer, sell, pledge, encumber, mortgage, or assign the Company’s rights, responsibilities, and/or licenses under these TOS, or any part thereof, including without limitation information the Company collects about you, to certain entities including without limitation any successor in interest of the Company, or any other entity with whom the Company merges or is acquired by, or to any entity that purchases substantially all of the Company’s assets, without prior notice to you or permission from you. You may not transfer, sell, pledge, encumber, mortgage, or assign, whether voluntarily, by operation of law, or otherwise, any rights, responsibilities, and/or licenses granted under these TOS, or any part thereof, to any other person or entity without prior written consent from the Company, which consent may be granted or withheld in the Company’s sole, absolute, and unfettered discretion. Any attempted transfer or assignment in violation of this clause shall be null and void. Subject to the foregoing, these TOS shall inure to the benefit of you and the Company, including each of their respective successors and permitted assigns.
RELATIONSHIP BETWEEN THE PARTIES
The relationship between you and the Company is that of independent contractors, and nothing in these TOS shall be deemed to create between you and the Company any other form of relationship. You and the Company shall not be deemed to be partners, joint ventures, or agents. You are not authorized to make any representations or obligations on behalf of the Company.
If you enter into an Agreement with the Company for Services you agree to allow the Company to act as your agent and represent your interests solely in furtherance of the Services under your Agreement, including, but not limited to, corresponding with any parties necessary for the Company to perform its obligations under your Agreement. You agree, at your expense, to indemnify, defend, and hold the Company and its officers, members, directors, employees, agents, third-party payment processors, third-party services, suppliers or affiliates harmless for any and all claims arising out of your Agreement and this relationship between the parties; and for any and all actions, claims, costs, attorneys’ fees, damages, judgments, and liabilities whatsoever, arising out of or relating to, in law or in equity, your breach of any term or condition of your Agreement, your violation of applicable laws, rules, or regulations in connection with the Services under your Agreement, and this or any relationship between you and the Company, including but not limited to any action taken by the Company on your behalf, at your direction, or otherwise in furtherance of your Agreement.
ENTIRE AGREEMENT
These TOS, including the Privacy Policy incorporated herein, constitute the entire agreement between you and the Company and shall supersede any and all prior and contemporaneous negotiations, correspondence, understandings and agreements of any kind (including without limitation any prior versions of these TOS), between you and the Company with respect to the subject matter hereof.
AMENDMENT
The Company reserves the right to revise these TOS at any time and for any reason by posting such revisions on this webpage. Any such revisions become effective as of the date they are posted on this webpage, which date is evidenced by the Effective Date at the bottom of this Privacy Policy. Your continued use of the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company constitutes your agreement to the revised TOS. If you do not agree to the revised TOS your only option is to discontinue use of the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company, and to close your Account. The Company shall not be liable as a result of any damages caused by any modification or amendment of these TOS, as well as any changes in the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company. The Company encourages you to periodically review these TOS.
HEADINGS
Section headings in these TOS are for convenience only, and shall not govern the meaning or interpretation of any provision of these TOS.
INTERPRETATION
Your acceptance of these TOS results from your desire to use the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company on the terms and conditions set forth in these TOS exactly as they are written, and therefore these TOS shall not be construed for or against you or the Company.
FORCE MAJEURE
The Company shall not be liable for delays, failure in performance, or interruption of service which results directly or indirectly from any cause or condition beyond its reasonable control, including without limitation the following: hurricane, earthquake, storm, accident, explosion, flood, perils of the sea, the elements, casualty, lock-outs, power failures, telecommunications failures, fire, other acts of nature, epidemic, war (whether or not declared), riot, sabotage, hostility, public disturbance, cessation of transport, act of public enemies, prohibition, terrorism, enduring unavailability to operate the Company, the Site, the Services, your Account, act by a government or public agency, embargo, strike, or other labor dispute or work stoppage.
NON-DISCLOSURE AND NON-DISPARAGEMENT
The Parties understand and agree that as a result of this Agreement that they may become aware of confidential information, proprietary information, techniques, trade secrets, intellectual property, and/or communications between the Parties. The Parties understand and agree that they are prohibited from disclosing, publicizing, disseminating, using and/or requesting any such information gained from either Party as the direct or indirect result of this Agreement, and the Parties are prohibited from encouraging or suggesting to others to do so as their proxy or otherwise. The Parties understand and agree that they are prohibited from disclosing, publicizing, disseminating, using and/or requesting the confidential information, proprietary information, techniques, trade secrets, intellectual property, suppression techniques, content generation or optimization techniques, contact list, pricing, pricing structure, communications between the Parties, or other confidential, proprietary commercial information. As a further result of this Agreement, the Parties understand and agree not to make, publicize, issue and/or disseminate any negative, disparaging, private, confidential, or derogatory statements or otherwise cause to be disclosed any information which is designed, intended or might reasonably be anticipated to disparage either Party, its officers, members, directors, employees, agents, third-party payment processors, third-party services, suppliers or affiliates, its business, services, products, and/or technologies. The Parties further understand and agree not to disclose, publish, post, and/or disseminate any negative, disparaging, and/or derogatory reviews of either Party, its officers, directors, employees, agents, third-party payment processors, third-party services, suppliers, affiliates, its business, services, products, and/or technologies, and each Party is prohibited from encouraging or suggesting to others to do so as their proxy or otherwise.
REMEDIES FOR BREACH
In the event that you violate these TOS, the Company may but is not required to immediately terminate your access to the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, goods or services offered by the Company, and/or any pending transactions associated therewith, and you shall be responsible for any losses incurred by the Company as a result. In the event you fail to pay the Company any sum you owe to the Company, you grant the Company a security interest in any of your property that may be in the Company’s possession or control to secure such payment, and acknowledge and agree that the Company may transfer, sell, pledge, encumber, mortgage, or assign such property without giving notice to you. In the event of a material breach of these TOS by the Company, your remedy is limited to lesser of the amount of damages you incur as a result, or the amount of payments the Company received from you in the twelve (12) months preceding the date of the Company’s material breach.
GOVERNING LAW
The construction, validity and performance of these TOS and any subsequent Agreement you enter into with the Company shall be governed, interpreted, performed and enforced solely in accordance with the laws of the State of Florida, without giving effect to any conflict-of-laws or other rule that would result in the application of the laws of a jurisdiction other than the State of Florida. The United Nations Convention on the International Sale of Goods shall not apply to these TOS, with any subsequent Agreement you enter into with the Company or the transactions contemplated hereby.
DISPUTE RESOLUTION BY BINDING ARBITRATION; EXCLUSIVE JURISDICTION
You and the Company irrevocably and unconditionally confirm, consent and agree that any action, dispute, controversy or claim arising out of or relating to these TOS, or with any subsequent Agreement you enter into with the Company or the breach thereof, or the transactions contemplated hereby, will be subject exclusively to binding arbitration before a single arbitrator in accordance with the American Arbitration Association, and to be conducted in the exclusive venue of the City of Sarasota, Florida. You and the Company hereby irrevocably confirm, consent and agree to exclusive jurisdiction, venue, and forum in the aforementioned arbitration in the City of Sarasota, Florida, and hereby waive any defense of forum non-conveniens. From the initiation to the end of the arbitration, you and the Company agree to share equally all fees and expenses of the arbitrator; however, the prevailing party shall be reimbursed their fees and expenses of the arbitration and arbitrator from the non-prevailing party. You and the Company further agree that the arbitrator will be empowered to enter any such relief as the arbitrator determines subject to the limitations set forth in the above sections entitled “Limitation of Liability” and “Remedies for Breach,” including but not limited to, entering an equitable decree mandating equitable relief, specific performance and enforcement of the terms of these TOS, or any subsequent Agreement you enter into with the Company, or the transactions contemplated hereby. The decision of the arbitrator will be final and binding on you and the Company. The arbitrator shall award the prevailing party its attorney’s fees, costs and expenses incurred in connection with such arbitration from the non-prevailing party. You and the Company acknowledge and agree not to commence any litigation or appeal in any court relating to these TOS, any subsequent Agreement you enter into with the Company, any breach thereof, or the transactions contemplated hereby. Along with the acknowledgment and agreement of being exclusively subject to arbitration before a single arbitrator in accordance with the American Arbitration Association, you and the Company further acknowledge and agree to be subject to service of process in the State of Florida and specifically in the City of Sarasota for said arbitration, and you and the Company waive any objection to the laying of venue in the City of Sarasota for said arbitration between the parties.
INDEMNIFICATION
You agree to defend, indemnify, and hold the Company, including its members, managers, officers, directors, employees, contractors, agents, third-party payment processors, third-party services, suppliers, affiliates, joint venturers, attorneys, and representatives, harmless from and against any and all claims, demands, damages, losses, liabilities, fines, fees, penalties, interest, attorneys’ fees, and/or costs relating to or arising out of (1) your breach of these TOS; (2) your breach of any subsequent Agreement you enter into with the Company; (3) your access or use of the Company, the Site, the Services, your Account, the Company’s newsletter, forms on the Site, communications sent or received by the Company, and/or goods or services offered by the Company; (4) your violation of any law, rule, regulation, or guideline applicable to you; and/or (5) your violation of the rights of any third party, regardless of whether such violation was intentional. If any person or entity requests or requires the Company to provide, maintain, preserve, collect, or otherwise process any information, data, or materials relating to you, then you shall promptly reimburse the Company for all costs and expenses that the Company incurs as a result, including without limitation the cost of storage, the media upon which the information, data, or materials, is stored and/or delivered, and the wages or fees paid to the Company’s employees and/or agents in complying with such request or requirement.
COUNSEL
By accepting these TOS you acknowledge and agree that you have first consulted with such legal and/or financial advisors as you deem necessary and appropriate, and that if you have not consulted with legal and/or financial advisors that was the result of your sole, informed, and considered decision.
WAIVER
No waiver of any default hereunder by the Company or any failure to enforce the Company’s rights hereunder shall be deemed to constitute a waiver of any subsequent default with respect to the same or any other provision hereof.
SEVERABILITY
Whenever possible, each term and provision of these TOS shall be interpreted in such manner as to be valid and effective under applicable laws, but, if any term or provision of these TOS is held by a court of competent jurisdiction to be invalid or unenforceable, such term or provision shall be invalid and ineffective only to the extent of such invalidity or unenforceability, without invalidating or making unenforceable the remainder of these TOS, and without rendering the severed provision unenforceable in any other jurisdiction other than the one in which the provision is held invalid or unenforceable. In the event of such invalidity or unenforceability, you and the Company shall use reasonable efforts to seek and agree on an alternative valid and enforceable provision that preserves the original purpose and intent of these TOS. The provisions of the section entitled “Limitation of Liability” shall remain in effect notwithstanding any invalidity or unenforceability of these TOS or any portion thereof.
SURVIVAL
These TOS shall extend beyond the expiration or termination of these TOS insofar as they contain clauses pertaining to suspension, termination, or closure of your Account; debts owed by you to the Company; your access to and use of the Services; your representations and warranties; the Company’s disclaimer of warranties; limitations on liability; indemnification; the Company’s use of information; rights reserved to the Company; the Company’s remedies; governing law; dispute resolution by binding arbitration; and exclusive jurisdiction.
Effective Date: June 23, 2022.
