TERMS OF USE

Last Updated: April 18, 2020

See Privacy Policy

 

TERMS OF USE - READ CAREFULLY.

THE POSITIVE NETWORK COMPANY, also known as “TPN COMPANY," "TPN COMMUNITY," "THE POSITIVE NETWORK COMMUNITY" AND "ASK LITA" IS A DBA FOR BUSINESS PEOPLE CONNECTION LLC, OWNED AND OPERATED BY LITA WILLIAMS.  THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND WAIVER OF JURY TRIALS AND CLASS ACTIONS, GOVERNING DISPUTES ARISING FROM USE OF ITS WEBSITE AND RELATED PRODUCTS AND SERVICES, WHICH APPLIES TO YOU IF YOUR COUNTRY OF RESIDENCE IS IN THE UNITED STATES OR YOUR COUNTRY OF RESIDENCE IS NOT THE UNITED STATES AND IF YOU BRING ANY CLAIM AGAINST BUSINESS PEOPLE CONNECTION LLC, IT’S REPRESENTATIVES, SUBSIDIARIES OR PROPERTIES, INCLUDING ASKLITA.COM, SCOOPANDSHARE.COM, PORTLANDSCOOP.COM, MINDLERT.COM AND RELATED WEBSITES, IN THE UNITED STATES. 

TERMS OF USE “THE TERMS” REPRESENT BUSINESS PEOPLE CONNECTION LLC, ITS DBA, REPRESENTATIVES, SUBSIDIARIES, DOMAINS, PROPERTIES, RELATED ASK LITA AFFILIATIONS, AND ITS PRIMARY AND SECONDARY WEBSITES, (REFERRED HEREIN AS "THE WEBSITE") PRODUCTS AND SERVICES INCLUDING ITS “SUBSCRIPTION PLAN SERVICES.” (THE WEBSITE AND SUBSCRIPTION PLANS ARE, COLLECTIVELY INCLUDED IN THE “SERVICES”. THESE TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU OR, IF APPLICABLE, THE BUSINESS OR EMPLOYER ON WHOSE BEHALF YOU USE THE SERVICES (“YOU” OR “YOUR” BINDS THE “CUSTOMER”) AND BUSINESS PEOPLE CONNECTION LLC, AN OREGON LIMITED LIABILITY COMPANY, REFERRED TO HEREIN AS THE “COMPANY,” “WE,” OR “OUR”.  YOUR USE OF BUSINESS PEOPLE CONNECTION, LLC PROPERTIES, WEBSITES, PRODUCTS OR SERVICES MEANS THAT YOU ACCEPT THESE TERMS OF USE FOR YOUR USE, AND IF APPLICABLE, ON BEHALF OF THE CUSTOMER YOU REPRESENT AND YOU WARRANT THAT IF YOUR USE OF OUR PROPERTIES, WEBSITES, PRODUCTS OR SERVICES IS ON BEHALF OF THE CUSTOMER, YOU ARE AT LEAST 18 YEARS OF AGE, AND HAVE ALL REQUISITE AUTHORITY TO USE OUR PROPERTIES, WEBSITE, PRODUCTS OR SERVICES ON BEHALF OF THE CUSTOMER, WHICH BINDS THE CUSTOMER TO THE TERMS HEREOF.

WE COLLECT USER DATA THROUGH COOKIES AND SIMILAR TECHNOLOGIES (E.G., WEB BEACONS, PIXELS, AD TAGS AND DEVICE IDENTIFIERS TO RECOGNIZE YOU AND/OR YOUR DEVICE(S) ON AND OFF ACROSS DIFFERENT SERVICES AND DEVICES.  

 

BY CONTINUING USE OF THIS WEBSITE OR ITS PRODUCTS OR SERVICES, YOU AGREE THAT YOU ACCEPT THESE TERMS OF USE WITHOUT MODIFICATION AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT THESE TERMS OF USE, YOU MAY NOT USE THIS WEBSITE OR ITS PRODUCTS OR SERVICES.

1. The Website.

Business People Connection LLC, an Oregon limited liability company dba The Positive Network Company (“TPN Company”, “we”, “our”, “us”, "Company"), operates the website located at the URL www.thepositivenetwork.company (together with its other websites, including Ask Lita.com and affiliated websites and related applications branded as Business People Connection LLC, The Positive Network Company, also known as "TPN Company" including, without limitation TPN Community, including its member community services, Ask Lita Communications and Marketing Services, including:  Scoop and Share Advertising Publication, di Accento Resources, Portland Scoop Directory, Mindlert Promotions and related sites, social media accounts and  communications branded The Positive Network Company or Ask Lita, referred to herein collectively as "Website".  These Terms of Use constitute an agreement between "TPN Company" and you, the visitor, governing your access and use of this Website. Please read these Terms of Use carefully before you start using the Website.  

 

WHEN YOU ("WEBSITE USER", "MEMBER", "CONTRIBUTOR", "RESOURCE") ACCESS OR USE THE WEBSITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF USE, WHETHER OR NOT YOU ARE A REGISTERED USER. IF YOU DO NOT AGREE TO THESE TERMS OF USE, OR TO ANY CHANGES WE MAY SUBSEQUENTLY MAKE TO THESE TERMS OF USE, YOU MUST IMMEDIATELY STOP ACCESSING THE WEBSITE AND DISCONTINUE USING THE SERVICES PROVIDED BY BUSINESS PEOPLE CONNECTION LLC, ALSO KNOWN AS "TPN COMPANY". 

Your access to and use of the Website is subject to your continued compliance with these Terms of Use and all applicable laws. We reserve the right to modify or update these Terms of Use at any time for any reason, with or without prior notice to you, and any such changes to these Terms of Use will supersede and replace any previous Terms of Use effective immediately upon posting to this page. It is your responsibility to periodically review these Terms of Use as posted here for any changes. Your continued use of the Website after the posting of changes to these Terms of Use will constitute your acceptance of such changes.  Discontinue using the Website if you do not agree with any changes to these Terms of Use.

Upon your acceptance of these Terms, we grant you limited, non-exclusive and non-transferable access and use for your personal, internal business purposes or on behalf of the customer you represent and only as expressly permitted in these Terms. You shall not use or permit use of the Website for any illegal purpose or in any manner inconsistent with the provisions of these Terms. Except as otherwise restricted by these Terms, Company grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials from our ScoopandShare.com Website only, provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use is not for commercial purposes (c) use is solely for personal or business social media posts and discussions, non-commercial use and in accordance with any applicable Services; and (d) do not modify the content you access in any way. Any violation by you of the provisions contained in this Section may result in the immediate termination of your right to use the Website, as well as potential liability for copyright infringement or other claims.  We have the right to terminate use of the Website, Membership and all Accounts associated with the Website at anytime for any reason.

In creating an Account, you may not misrepresent your identity or your affiliation with any person or organization and you may never use another person’s Account for any purpose whatsoever. If you have previously had your access to or use of the Website terminated by us, you may not access or use the Website under any circumstances. You should never share your Account information with third parties or allow third parties to use your Account. Please keep your password confidential and be sure to exit from your Account at the end of each session. You are responsible for all of the activity on your Account, including the use of your Account by other people who you may or may not authorize to use your Account. If you allow others to access your Account in violation of these Terms of Use, you agree to be responsible for ensuring that they comply with these Terms of Use.

You may terminate your Account at any time by sending an email to info@AskLita.com with "Cancel Account" in the subject line or click cancel account at the bottom of newsletters or your Account access page.

2. Ownership.

The Website contains materials that are proprietary and are protected by copyright laws, trademarks, service marks, and other intellectual property laws and treaties.  The Website and its content, features and functionality, including, without limitation, information, software, text, graphics, logos, button icons, images, audio clips, video clips, data compilations and the design, selection and arrangement thereof, are the exclusive property of Business People Connection LLC, our licensors or other content suppliers, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.

3.  Content.

No right, title or interest in or to the Website or any Content is transferred to you and all rights not expressly granted are reserved. Any use of the Website that is not expressly permitted by these Terms of Use or our suppliers may be a breach of these Terms of Use and may violate copyright, trademark and other laws.

For purposes of these Terms of Use, “Content” is defined as all information such as the “look and feel” of the Website, data files, graphics, text, photographs, drawings, logos, images, sounds, music and video and audio files on the Website. TPN Company tries to ensure that the Content is accurate and complete. Your use of the Website is at your risk. TPN Company does not warrant that the functional aspects of the Website or the Content will be error free or that the Website, the Content or the server that makes it available are free of viruses or other harmful components. TPN Company and its suppliers make no warranties about the Content or about results to be obtained from using the Website. You bear the entire risk of the completeness, accuracy or usefulness of any Content found on this Website. TPN Company reserves the right to withdraw, temporarily or permanently, any Content from the Website at any time and for any reason and such removal may be immediate and without notice. As an express condition to your use of and access to the Website, you acknowledge, agree and confirm that TPN Company is not liable to you or any third party for any such withdrawal.

3.1

Advertising Content

The Content selected by our editors and its editorial content include both free promotional content and paid "sponsored" advertisers for businesses, products, services and information.  Paid advertising referred herein as "sponsored" advertising are ads paid by third parties.  Paid advertising is clearly marked "Sponsored Content". To the extent that we post third-party Content, it reflects the personal opinions and views of the third-party sources and advertisers and does not necessarily reflect the opinions and views of TPN Company, and we accept no responsibility for any such third-party opinions and views. 

 

You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Website. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, any improvements, design contributions, or derivative works thereto, and any knowledge or processed related thereto, including rights in and to all applications and registrations relating to the Website shall at all times be and remain the sole and exclusive property of Company. The trademarks, logos, taglines and service marks displayed on the Website (collectively, the “Trademarks”) are registered and unregistered Trademarks of Company and others. The Trademarks may not generally be used by you in any manner without Company’s prior express written consent.

CONTENT RESTRICTIONS

You may not under any circumstances:

  • Copy or print any of the Content, whether licensed by us or otherwise, unless and to the extent it is for your own personal, non-commercial use and you must retain all trademark, copyright and other proprietary notices contained in and on any such Content;
  • Reproduce, download, modify, translate, add to, distribute, transmit, publish, perform, display, disclose, archive, upload, broadcast or sell, sublicense, index or exploit any part of the Website or the content thereon in any medium, either directly or through the use of any device, software, internet site, web-based service or other means, without our prior express written permission;
  • Remove, alter, bypass, avoid, interfere with or circumvent any copyright, trademark or other proprietary notices marked on the Content or any digital rights management mechanism, device or other content protection measures either directly or through other means;
  • Mirror, frame, screen scrape or deep link to any aspect of the Website or access any Content through technology or means other than those provided or authorized by us;
  • Access the Website via any automated system, including, without limitation, by “robots,” “spiders,” “offline readers,” etc., or take any action that imposes, or may impose (as determined in our sole discretion), an unreasonable or disproportionately large load on our infrastructure;
  • Knowingly or recklessly upload invalid data or introduce viruses, worms, Trojan horses or other malware or software agents, whether harmful or not, to the Website, or tamper with, impair, damage, attack, exploit or penetrate the Company system or network, or otherwise attempt to interfere with or compromise the system integrity or security of TPN Company or any connected networks, or take any action to impact the proper operation of the Website and any person’s or entity’s use or enjoyment thereof;
  • Bypass the measures we may use to prevent or restrict access to or use of the Website, including by hacking into secured or non-public areas of the Website, circumventing any geo-blocking mechanisms or otherwise;
  • Use the Website to collect any personally identifiable information, including Account names and e-mail addresses, or use the Website for any commercial solicitation purposes, without our prior express written permission; or
  • Attempt to reverse engineer any aspect of the Website or attempt to derive the source code (including the tools, methods, processes and infrastructure) that enables or underlies the Website, create any derivative works or materials of any kind using the Content, whether or not you intend to give away the derivative materials free of charge, or otherwise build a business utilizing any aspect of the Website.

3.2 User Content.

Content on the Website can include Member and Network Contributor Content, including images, video, links, testimony, opinions and suggestions.  Additionally, our Services may enable Website users to submit, post, upload, or otherwise make available (collectively, “Post”) content (“User Content”) that may or may not be viewable by other users. All Content, including User Content and Posted User Content, unless we indicate otherwise, grants us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such Content, including User Content throughout the world in any form, media, or technology now known or hereafter developed. Website Content, including User Content also permit any other user to view, copy, access and store such Content and User Content for that user’s personal use of our Services. Providing User Content, You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. You acknowledge and agree that Company and its designees may or may not, at Company’s discretion, pre-screen User Content before its appearance in the Services but that Company has no obligation to do so. You further acknowledge and agree that Company reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, Company and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Company’s sole discretion. You acknowledge and agree that Company does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.

USER CONTENT RESTRICTIONS

To the extent that we accept user generated material, you may have the opportunity to publish, transmit, submit or otherwise post reviews, ratings, comments, feedback or other materials on the Website (“User Generated Material”, "User Content") that may be accessible and viewable by the public. Our goal is to make the Website enjoyable for all of our visitors, so we ask that you comply with the following rules.

User Generated Material must not:

  • Contain any material which is false, defamatory, libelous, obscene, harassing, threatening, discriminatory, bigoted, hateful, violent, vulgar, profane, pornographic or otherwise offensive, inappropriate, damaging, disruptive or harmful;

  • Violate our or any other person’s legal rights (including the rights of publicity and privacy), contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or otherwise promote, advocate or assist any illegal activity or unlawful act;

  • Create or threaten harm to any person or loss or damage to any property;

  • Infringe any patent, trademark, trade secret, copyright, contract or other intellectual property or other proprietary rights of TPN Company or any other person;

  • Seek to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

  • Misrepresent your identity or affiliation with any person or organization, including TPN Company;

  • Seek to collect other users’ e-mail addresses and/or their usernames or passwords for their Accounts or other services by electronic or other means for any purpose, including to send unsolicited e-mail or other electronic communications;

  • Seek to transmit chain letters, bulk or junk e-mail, whether automated or not, or interfere with, disrupt or create an undue burden on TPN Company or the networks or services connected to the Website or install or attempt to install or promote spyware, malware or other computer code on our computers or equipment or the computers or equipment of third parties; or

  • Involve commercial activities such as contests, sweepstakes and/or other sales promotions, barter, advertising or offers of sale or purchase of goods and services.  

 

We have the right, but not the obligation, to monitor, review, screen, post, remove, reject, modify and store all User Generated Material posted on the Website, at any time and for any reason, without notice, including to ensure that all such User Generated Material complies with these Terms of Use. We do not endorse any User Generated Material and the User Generated Material posted does not reflect our opinions, views or advice. You are solely responsible for your User Content and the consequences of posting and publishing it and you agree that we are acting only as a passive conduit for your online distribution and publication of your User Content. We take no responsibility and assume no liability for any User Generated Material that you or any other user or third party posts or sends on or through the Website, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party.

We reserve the right, but have no obligation, to monitor or to take any action regarding disputes between you and any other user and shall have no liability for your interactions or any disputes with other users or for any user’s action or inaction. You are solely responsible for your conduct on the Website and your interactions with other users, including our suppliers, Member and Network Contributors.

Notwithstanding our rules with regard to User Content, you may be exposed to content on the Website that is inaccurate, objectionable, inappropriate for children or otherwise unsuited to your purpose or in violation of our Terms of Use. We take no responsibility and expressly disclaim any liability related in any way to your exposure to User Generated Material on the Website, whether or not it violates our Terms of Use.  

 

If and to the extent that we elect to accept user generated material, please choose carefully the information you post on the Website and that you give to other users. You are discouraged from publicly posting your full name, telephone number, street address, e-mail address or other information that identifies you or allows strangers to find you or to steal your identity. You assume all risks associated with dealing with other users with whom you come in contact through the Website, and to the extent that the law permits, you release us from any claims or liability related to any User Generated Material posted on the Website and from any claims related to the conduct of any other users.

4. Website Use Restrictions.

4.1 By using the Website or any Product, Service or Subscription Services, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:

a. Is illegal, or violates any federal, state, or local law or regulation; b. Advocates illegal activity or discusses illegal activities with the intent to commit them; c. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights; d. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable; e. Interferes with any other party’s use and enjoyment of the Services; f. Attempts to impersonate another person or entity; g. Is commercial in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials; h. Falsely states, misrepresents, or conceals your affiliation with another person or entity; i. Accesses or uses the account of another user without permission; j. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment; k. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Website, or the servers or networks connected to the Website, or any of the Services; l. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else; m. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords; n. Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Website, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent; o. Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Website; p. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Website, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information; q. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Website; r. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Website or Services, by any means except as provided for in these Terms or with the prior written consent of Company; or s. Attempts to do any of the foregoing.

4.2 In addition, you shall not, and shall not permit others to, do the following with respect to the Services:

a. Use the Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms; b. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Services available for access by third parties except as otherwise expressly provided in these Terms; or c. Access or use the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of Company.

4.3 You may not frame the Website, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Website, provided that you acknowledge and agree that you will not link the Website to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Website and can include liability claims.

4.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Website for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Website (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms, our Product or Service restrictions and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.

5. Privacy and Data Processing Addendum. By using or accessing the Services, you agree to be bound by our Privacy Policy, as updated from time to time, which is incorporated herein by reference and made a part of these Terms.

6. Customer Obligations and Updates and Communications.

6.1 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited herein, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Products or Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.

Mobile Service

When you access Company Services through mobile applications via mobile devices (the “App”), your network provider’s messaging, data and other rates and fees may apply. We do not warrant that the App will be compatible with your network provider or device. You acknowledge and agree that we may release updates to the App and that you may be required to install any such update in order for the App to continue functioning properly. You may not export any of our mobile applications except in compliance with all applicable laws.  

Consent to Electronic Communication

You consent to receive communications from us, whether required by law or otherwise, either by e-mail if you have provided us with your e-mail address, or by notice posted on the Website as determined by us in our sole discretion. You agree that any requirement that a notice, disclosure, agreement or other communication be sent to you by us in writing is satisfied by such electronic communication. We are not responsible for any automatic or spam filtering you or your network provider may apply to communications we send to an e-mail address that you provide to us.

Mobile Messaging Terms

When you provide us with your mobile telephone number, you agree that TPN Company may send you text messages (including SMS and MMS) to that mobile telephone number.  The Company is not responsible for any charges your mobile provider may include for you to receive our text messages. You are responsible for the payment to your mobile provider of any message, data and other charges related to text messages, including for confirmation texts you receive and your responses thereto.  You may opt-out of receiving any future text messages from the Company at any time by either replying to a text message with the word “STOP” or by emailing info@AskLita.com  with the word "STOP" in the subject line.  If you opt-out, you agree to receive a final text message confirming your opt-out. When you opt-out of text messaging, you will no longer receive any texts messages unless you re-subscribe. In addition, for assistance, you may reply to any text message with the word “Help”. TPN Company texts may be sent through an automatic telephone dialing system. Consent to receive mobile messages is not required as a condition to using the Website or to purchase any goods or services on the Website.

You agree to notify us of any changes to your mobile telephone number by updating your "User Profile" or sending an email to info@AskLita.com with “Update Mobile Number” in the subject line. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.

6.2 We may revise these Terms or any additional terms and conditions which are relevant to a particular Service from time-to-time to reflect changes in the law or to the Products or Services. We will post the revised terms on our Website with a “last updated” date at the top of the Terms. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.

6.3 You agree to receive electronically all communications, agreements, and notices that we provide in connection with any Products or Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Website or through any Products or Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your account contact information current.

7. Definitions Used in Connection with Subscription Plan Services.

“Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through Products, Services or Subscription Services. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Companies. “Permitted Use” means any use of Products, Services or the Subscription Services solely in or for Customer’s internal business operations, which includes providing Products or Services to and on behalf of Customer’s clients. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. “Company Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Company or its designee to disable Customer’s access to or use of Products, Services or the Subscription Services automatically with the passage of time or under the positive control of Company or its designee. “Company Materials” means the Product or Service Software, specifications, documentation and Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company or any subcontractor in connection with the Products or Services or otherwise comprise or relate to the Subscription Services or Company Systems. “Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Product, Service or Subscription Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services. “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service Companies, and legal advisors. “Service Software” means the Company software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Company provides remote access to and use of as part of the Product, Service or Subscription Services. “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Product, Service or Subscription Services that are not proprietary to Company.

8.Subscription Services.

8.1 Service and System Control. Except as otherwise expressly provided in these Terms, as between the parties: (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Subscription Services and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Subscription Services and Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions or materials provided by any of them to the Subscription Services or Company; (ii) results obtained from any use of the Subscription Services or Company Materials; and (iii) conclusions, decisions or actions based on such use.

8.2 Changes. Company reserves the right, in its sole discretion, to make any changes to the Subscription Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services or (iii) the Subscription Services’ cost efficiency or performance; or (b) to comply with applicable Law.

8.3 Suspension or Termination of Services. Company may, directly or indirectly, and by use of a Company Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s or any other Person’s access to or use of all or any part of the Subscription Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with, any material term of these Terms,; (ii)accessed or used the Subscription Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (iii) Customer is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscription Services; or (iv) the term of the Subscription Services expires or is terminated. This Section does not limit any of Company’s other rights or remedies, whether at law, in equity or under these Terms.

9. Authorization and Customer Restrictions.

9.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees (as applicable when Customer signs up for a Product, Service or Subscription Service) and compliance and performance in accordance with all other terms and conditions of these Terms, Company hereby authorizes Customer to access and use, during the Term, the Product, Service or Subscription Services and such Company Materials as Company may supply or make available to Customer solely for the Permitted Use, on the conditions and limitations set forth in these Terms. This authorization is non-exclusive and non-transferable.

9.2 Reservation of Rights. Nothing in these Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Product, Service or Subscription Services, Company Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Product, Service or Subscription Services, the Company Materials and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.

9.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Product, Service or Subscription Services or Company Materials except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits: (a) copy, modify or create derivative works or improvements of the Product, Service or Subscription Services or Company Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Product, Service or Subscription Services or Company Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Product, Service or Subscription Services or Company Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Product, Service or Subscription Services or Company Materials or access or use the Product, Service or Subscription Services or Company Materials other than by Customer; (e) input, upload, transmit or otherwise provide to or through the Product, Service or Subscription Services or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Product, Service or Subscription Services, Company Systems or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Product, Service or Subscription Services or Company Materials, including any copy thereof; (h) access or use the Product, Service or Subscription Services or Company Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law; (i) access or use the Product, Service or Subscription Services or Company Materials for purposes of competitive analysis of the Product, Service or Subscription Services or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is intended for the Company’s detriment or commercial disadvantage; or (j) otherwise access or use the Product, Service or Subscription Services or Company Materials beyond the scope of the authorization granted herein.

10. Fees; Payment Terms.

10.1 Fees. Customer shall pay Company the stated fees for products, services or subscription services including any monthly fee associated with the type of account Customer chooses (“Fees”).

10.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.

 

10.3 Payment. Fees will be charged to the credit card or payment method used by Customer when purchasing a Product or Service or signing up for Subscription Services on a recurring monthly basis in the amount specified by Company at the time Customer makes the purchase for Products or Services or is signed up for Subscription Services. Customer will not receive any advance notice of this payment. The prices, features, and options of the Product, Service or Subscription Services depend on the Product, Service or Subscription Services selected. Company does not represent or warrant that a particular Product, Service or Subscription Service will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Product, Service or Subscription Service without prior notice.

 

10.4 Recurring Charges. When you purchase Subscription Services, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. Customer must promptly notify us of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION SERVICE, CUSTOMER AUTHORIZES COMPANY OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION SERVICE CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES. The Authorization continues through the applicable term and any renewal term (as defined herein, below) until Customer cancels as set forth in these Terms.

 

10.5 Late Payment. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, Company may in its sole discretion may cancel the Subscription Service or permanently restrict Customer’s ability to use a certain payment method if that payment method fails. If Customer fails to make any payment when due then, commencing five (5) business days after Customer’s receipt of a default notice, in addition to all other remedies that may be available:  Customer shall reimburse Company for all costs reasonably incurred by Company in collecting any late payments including bank fees, attorneys’ fees, court costs and collection agency fees.  All amounts payable to Company shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

11. Intellectual Property Rights.

11.1 Products, Services and Subscription Services and Company Materials and all rights to title and interest in the Product, Service or Subscription Services and Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Products, Services or Subscription Services or Company Materials (including Third-Party Materials) except as expressly set forth herein or the applicable third-party license, in each case subject to the terms contained herein, all other rights in and to Products, Services or Subscription Services and Company Materials (including Third-Party Materials) are expressly reserved by Company and the respective third-party licensors or representatives and affiliates.

11.2 Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. 11.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to

Customer Data: (a) to Company, its subcontractors and Company personnel as are necessary or useful to perform the Services for Customer; and (b) to Company as are necessary or useful to enforce these Terms and exercise its rights and perform its obligations to Customer hereunder.

12. Confidentiality.

12.1 Confidential Information. In connection with the use of Products, Services and Subscription Services, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.

12.2 Exclusions. Confidential Information does not include information that (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms; (b) except as may be permitted by and subject to its compliance with Section 12.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.

 

12.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under these Confidentiality terms; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

13. Term and Termination of Subscription Service.

13.1 Term. The term of any Subscription Services will be month to month, automatically renewing on a monthly basis, unless otherwise agreed upon between Customer and Company in writing.

13.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms: (a) Company may terminate any agreement for Subscription Services, effective on written notice to Customer, if Customer fails to pay any applicable amount when due hereunder, and such failure continues more than ten (10) days after Company’s delivery of written notice.

14. Disclaimer of Warranties.

14.1 DISCLAIMER OF WARRANTIES. ALL SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE DELIVERED AS EXPECTED, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

If you are a California resident, you hereby 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.” This release includes the criminal acts of others. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of these limitations may not apply to you.

Medical, Nutrition and Fitness Information

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL MEDICAL, NUTRITION AND FITNESS INFORMATION PROVIDED ON THE WEBSITE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY TPN COMPANY OR BY OTHER USERS OR THIRD PARTIES, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (i) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (ii) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (iii) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.

YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON OR VIA THE WEBSITE AND YOU SHOULD NOT USE THE WEBSITE OR ANY CONTENT AVAILABLE THROUGH OR VIA THE WEBSITE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND TPN COMPANY, ITS AFFILIATES OR ANY THIRD PARTY.

THE WEBSITE MAY PERIODICALLY PROVIDE INFORMATION CONCERNING FITNESS AND ATHLETIC ACTIVITIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY OUR ACTION, INACTION OR NEGLIGENCE OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS.  TPN COMPANY RECOMMENDS THAT YOU CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER BEFORE BEGINNING ANY NEW FITNESS PROGRAM OR ENGAGING IN ANY NEW ATHLETIC ACTIVITIES.

15. Indemnification.

15.1 Indemnification.  Customer shall indemnify, defend and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee in connection with any Action by a third party (other than an Affiliate of a Company Indemnitee) that arises out of or relates to any: (a) Customer Data, including any processing of Customer Data by or on behalf of Company in accordance with these Terms; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including Company’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Company; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under these Terms; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with these Terms.

 

16. Limitations of Liability.

16.1 EXCLUSION OF DAMAGES. NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE COMPANYS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

16.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAYABLE TO COMPANY UNDER THESE TERMS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

17. Force Majeure.

17.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms for any failure or delay in fulfilling or performing any term of these Terms (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate these Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

17.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

18. Miscellaneous.

18.1 Export Control Laws. You acknowledge that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Company makes available (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by Export Laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Website.

18.2 Third Party Terms. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any "Linked Content" or third-party content to which links may be provided, and you hereby waive any claim against us with respect to such services. COMPANY IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE WEBSITESITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with "Linked Sites" or "Third Party Content" found on or through the Website, including expressed opinions, content or product or service claims, payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such links to third-party web sites or resources on the Website, and you understand that you are bound by the terms of such third parties.

18.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

18.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms have binding legal effect only if in writing and addressed to a party at the address set forth at the time of registering for Services (in the case of Customer) or at the address set forth on the Website (in the case of Company) (or to such other address or such other person that such party may designate from time to time). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

18.5 Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

18.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company’s prior written consent, which consent Company shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section is void. These Terms are binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

18.7 No Third-party Beneficiaries. These Terms for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

18.8 Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

18.9 Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

18.10 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

18.10.1 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at info@askLita.com and provide a brief, written description of the dispute and your contact information (including your username and account information, if your dispute relates to an Account). Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

 

18.10.2 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration not exceed $500.00 (five-hundred US dollars).

18.10.3 No Jury Trial. The parties understand that by agreeing to this mandatory arbitration section, the right to trial is void.

 

18.10.4 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS 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 arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

18.10.5 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).

18.11 Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. Any legal action or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the courts of the State of Oregon located in Washington County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal action or proceeding.

 

18.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 12 (Confidentiality) or, in the case of Customer, Section 9.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

 

18.13 Attorneys’ Fees. In the event that any arbitration, action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.  Reasonable attorneys' fees shall constitute average attorneys' fees for legal matters of the same listed herein and as defined in the state of Oregon. 

 

18.14 Contacting Us. If you have any concerns about our Content or if you have questions about the Website or Terms, pricing, complaints, or other inquiries, please contact us at info@askLita.com.

18.5  TPN Community Membership.  Some TPN Company services, products and information offered require TPN Community Membership.  The membership can be cancelled at anytime.  Cancel services and/or membership here.

 

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