2. Eligibility, Use Rights, Availability, Restrictions and Services Content.
d. Restrictions. You shall not: reproduce, duplicate, copy, sell, re-sell, or otherwise commercialize any part of the Services; access without authority, interfere with, damage, or disrupt any part of our Services or software or equipment or network on which the Services is stored; attempt to gain unauthorized access to the Services, the server on which the Services is stored or any server, computer or database connected to our site; use the Services in any way that breaches any law or regulation; use the Services in any way that is unlawful or fraudulent, or has any unlawful, fraudulent, or intentionally misleading purpose or effect; transmit or cause the transmission of any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation; transmit material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same; transmit data, send, introduce, or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware, malware, corrupted files, or any other harmful programs or similar computer code designed to adversely impact the operation of any computer software or hardware; attack our site via a denial-of-service attack or a distributed denial-of service attack; or use language that is hateful or discriminatory language based on race, color, sex, sexual orientation, religion, nationality, ethnicity, marital status, disability, age or is otherwise objectionable.
e. Services Content. Our Services and all marks, logos, buttons icons, images, pictures, graphics, content used in connection with the Services (collectively referred to as “ Services Content”) are protected under U.S. intellectual property laws, and are exclusively owned and controlled by us and various third parties. YOU ARE PROHIBITED FROM USING, MODIFYING, REPUBLISHING, TRANSMITTING, DISTRIBUTING, SCRAPING (THROUGH MANUAL OR AUTOMATED MEANS), OR DUPLICATING SERVICES CONTENT WITHOUT OUR EXPRESS WRITTEN PERMISSION.
You will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which InStride controls and operates the Services and other services associated therewith. Furthermore, you expressly agree not to violate any rights of publicity or privacy of any person, nor defame any person or entity.
Except where expressly provided otherwise by InStride, all information submitted to InStride through, in association with or in regard to the Services or any other InStride products or services (“Submissions”) shall be considered non-confidential and InStride’s property. This may not include copyright ownership of images which you may upload, but does include an express license to use said images in any method InStride sees fit and make compilations and derivative works thereof in all media now known or hereafter devised. Except as expressly enumerated in the preceding sentence, by providing such Submissions to InStride, you agree to assign to InStride, as consideration in exchange for the use of the Services, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. You represent that you have the right to grant InStride these rights. InStride shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge you are responsible for the Submissions you provide, and that you, not InStride, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
Certain provisions of these terms may be superseded by expressly designated legal notices or terms located on particular pages of the Services, which may be posted from time to time. Your continued use of the Services after any such changes and/or postings shall constitute your consent to such changes.
6. Third-Party Websites and Links
Links to Third-Party Websites. Our Services incorporate links to third party websites and services for your information only. Some third-party websites may collect data or solicit information from you. We neither own nor control such third-party websites and are not responsible for their content or actions (“Third-Party Websites”). Please read all applicable terms, conditions, and privacy policies of any Third-Party Website that may be linked to our Services. Your access and use of any Third-Party Website is at your own risk.
Links by Other Websites. You may link to the Services provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must also ensure that any link to the Services is up to date and functional. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to the Services in any website that is not owned by you. The Services must not be framed on any other site, nor may you create a link to any part of the Services other than the home page. We reserve the right to withdraw linking permission without notice.
8. Disclaimer of Warranties
9. Limitation of Liability
YOUR USE OF OUR SERVICES IS ENTIRELY AT YOUR SOLE RISK. NEITHER WE NOR OUR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AND/OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
12. Mandatory Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute with us before taking any formal action by contacting us at email@example.com. When you contact us, you must provide a brief, written description of the dispute and your contact information. Except for intellectual property and small claims court claims (see below), you and we agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and we agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration form at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS; and (iii) send one copy of the Demand for Arbitration to us at 448 S Hill St 2nd Floor, Los Angeles, CA 90013.
When you initiate arbitration against us, you are required to pay up to $250 of the filing fee to initiate arbitration. To the extent the filing fee for the arbitration exceeds that amount, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Los Angeles, California, United States, and you and we agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and we expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this Section 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.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. 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 does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. county (or parish) of your residence or in Los Angeles, California, either party may elect to have such dispute adjudicated in such small claims court. Such election can be made by either party even after the other party initiates an arbitration. In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless the small claims court is unwilling to do so) and not the arbitrator or JAMS.
Changes to This Section. We will provide thirty (30) days’ notice of any material changes to this Section by posting a notice on the Services or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
14. Assignment and Delegation
Delegations. We may delegate our performance under this agreement freely. You may not delegate any performance under this agreement.
Effect of Purported Assignment or Delegation. Any purported assignment of rights or delegation of performance in violation of this section is void.
16. Relationship of the Parties
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in Los Angeles County, California. We both agree to submit to the personal jurisdiction of the federal and state courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes that are not subject to arbitration.
700 S Flower St., Suite 1800, Los Angeles, CA, 90017
Copyright © 2021 Attainment Holdco, LLC, a Delaware public benefit limited liability company. All rights reserved.