Terms of Use

1. Introduction

These Terms of Use (i) set out the terms between you and Attainment HoldCo Attainment Holdco, LLC, a Delaware public benefit limited liability company, d/b/a InStride] (“we”, “us”, or “our”) under which you may access and use our website [instride.wpengine.com] (“Site”); and (ii) incorporate the provisions set forth in our Privacy Policy which identifies how we process Personal Information we receive when you access and use our Site.

THESE TERMS OF USE ARE A BINDING LEGAL AGREEMENT. BY CLICKING “AGREE” OR ACCESSING OR USING OUR SITE YOU SPECIFICALLY ACKNOWLEDGE AND AGREE TO THESE TERMS OF USE ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE SITE ON BEHALF OF, OR FOR THE BENEFIT OF, ANY ENTITY, YOU ARE AGREEING TO THE TERMS OF USE ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS OF USE. REFERENCES TO “YOU” AND “YOUR” IN THESE TERMS OF USE WILL REFER TO BOTH THE INDIVIDUAL ACCESSING THE APP AND TO ANY SUCH ORGANIZATION.

These Terms of Use REQUIRE all disputes between you and us will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below titled Dispute Resolution for the details regarding your agreement to arbitrate any disputes with us.

IF YOU DO NOT AGREE WITH ANY ELEMENT OF THESE TERMS OF USE, YOU SHOULD CEASE ACCESSING OR USING THE SITE IMMEDIATELY.

2. Eligibility, Use Rights, Availability, Restrictions and Site Content.

a. Eligibility. BY USING THE APP, YOU REPRESENT AND WARRANT TO US YOU ARE AT LEAST THIRTEEN YEARS OLD.

b. Use Rights. Our Site is available to you free of charge. Accordingly, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use our Site as expressly permitted by these Terms and Use. Except for this limited license, we do not grant you any other rights or license. We reserve all rights not expressly granted herein. You or we may suspend or terminate your use of our Site at any time, for any reason or for no reason.

c. Site Availability. You understand that from time to time the Site may be unavailable. For the avoidance of doubt, you are responsible for all third-party components or services necessary for you to have access to the Site. You are also responsible for ensuring all persons who access the Site through your Internet connection or devices are aware of and comply with these Terms of Use.

d. Restrictions. You shall not: reproduce, duplicate, copy, sell, re-sell, or otherwise commercialize any part of the Site; access without authority, interfere with, damage, or disrupt any part of our Site or software or equipment or network on which the Site is stored; attempt to gain unauthorized access to the Site, the server on which the Site is stored or any server, computer or database connected to our site; use the Site in any way that breaches any law or regulation; use the Site 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. Site Content. Our Site and all marks, logos, buttons icons, images, pictures, graphics, content used in connection with the Site (collectively referred to as “Site Content”) are protected under U.S. intellectual property laws, and are exclusively owned and controlled by us. YOU ARE PROHIBITED FROM USING, MODIFYING, REPUBLISHING, TRANSMITTING, DISTRIBUTING, OR DUPLICATING SITE CONTENT WITHOUT OUR EXPRESS WRITTEN PERMISSION.

3. Your Responsibilities

You will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Website, 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 Site and 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.

4. Submissions

Except where expressly provided otherwise by InStride, all information submitted to InStride through, in association with or in regard to the Site 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 Site, 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.

InStride reserves the right, but disclaims any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from any InStride site that violates these Terms of Use and (b) identify any user to third parties, and/or disclose to third parties any Submission or Personal Information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these Terms of Use and/or protect the safety or security of any person or property, including any InStride site. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.

5. Modifications of Site and These Terms of Use

We reserve the right, in our sole discretion, to discontinue, change, improve, or correct our Site including all Site content. Our Site may not be available during maintenance breaks and other times. We may also decide to discontinue our Site or any part thereof at any time in our sole discretion. You are responsible for regularly reviewing our Terms of Use and other applicable terms and notices. Continued access and use of our Site shall constitute your consent to such changes as of the “Last Revised” below.

Certain provisions of these terms may be superseded by expressly designated legal notices or terms located on particular pages of the Site, which may be posted from time to time. Your continued use of the Site 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 Site incorporates links to third party websites for your information only. Some third party websites may collect data or solicit personal 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 Site. Your access and use of any Third-Party Website is at your own risk.

Links by Other Websites. You may link to the Site 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 Site 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 Site in any website that is not owned by you. The Site must not be framed on any other site, nor may you create a link to any part of the Site other than the home page. We reserve the right to withdraw linking permission without notice.

7. Privacy

We collect and use information about you and your use of the Site. Please review our [hyperlink to Privacy Policy] for more information.

8. Disclaimer of Warranties

EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY INSTRIDE, THE MATERIALS ON THE WEBSITE ARE PROVIDED “AS IS,” AND ARE FOR USE AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, INSTRIDE AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE SITE, THE MATERIALS, AND THE PRODUCTS AND SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF ANY KIND INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. INSTRIDE AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITE AND THE PRODUCTS, SERVICES AND/OR MATERIALS ASSOCIATED WITH THE SITE, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE SITE AND/OR THE PRODUCTS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSTRIDE AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICES AND WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NEITHER INSTRIDE NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SITE AND SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INSTRIDE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY INSTRIDE, THE SITE AND ANY PRODUCTS, SERVICES, OR MATERIALS ASSOCIATED THEREWITH ARE PROVIDED TO YOU ON AN “AS IS” BASIS. YOU ASSUME THE ENTIRE RISK OF LOSS OF INFORMATION AND/OR DAMAGE DUE TO YOUR USE OF THE SITE. INSTRIDE EXPRESSLY DISCLAIMS ANY WARRANTY RELATED TO THE QUALITY OF PRODUCTS AND/OR SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE WEBSITE. YOU USE THIRD-PARTY PROVIDERS AND AFFILIATED SERVICES AT YOUR PERIL AND ASSUME ALL RISKS RELATED TO USE OF SAID THIRD-PARTY PROVIDERS AND SERVICES. FURTHER, TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, YOU HEREBY RELEASE US FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO ANY PRODUCT OR SERVICE OFFER BY US OR OUR SERVICE PROVIDERS OR THIRD-PARTY PROVIDERS, ANY ACTION OR INACTION BY US, OUR SERVICE PROVIDERS OR THIRD-PARTY PROVIDERS OR OTHER SITE USERS, INCLUDING OUR, OUR SERVICE PROVIDERS OR THIRD-PARTY PROVIDERS OR OTHER USERS’ FAILURE TO COMPLY WITH THESE TERMS OF USE.

9. Limitation of Liability

YOUR USE OF OUR SITE 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 SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

10. Indemnification

You shall indemnify, defend and hold us and our employees, officers, directors, shareholders and agents harmless for any and all losses, costs, disputes, demands, claims and liabilities (including reasonable attorneys’ fees) arising out of or incurred due to: (i) your breach of these Terms of Use; (ii) your use or misuse of the Site; (iii) your violation of any law or the rights of any third party; (iv) actions or inactions of other users of the Site; or (v) your use of Third-Party Websites

11. Applicable Law

California law governs all disputes or controversies arising under or relating to these Terms of Use or their subject matter, without regard to its choice of laws principles.

12. Dispute Resolution

We will work in good faith to resolve any issue you have with the Site working in accordance with the stated specifications we provide, if you bring that issue to the attention of our customer service department. However, we realize there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.

In the interest of resolving disputes between you and InStride in the most expedient and cost-effective manner, you and InStride agree that ALL disputes arising out of or related to the Terms of Use and/or your use of the Site or any of InStride’s Services and products, whether based in tort, statute, fraud, contract, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these terms, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and InStride. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND InStride ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

Exceptions to Arbitration Agreement. Notwithstanding the paragraph above, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if such an action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

Arbitration Process. If you desire to assert a claim against InStride, and you elect to seek arbitration, you must first send to InStride, by certified mail, a written Notice of your claim (“Notice”). The Notice to InStride should be addressed to: [address] (“Notice Address”). If InStride desires to assert a claim against you and elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by InStride, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If InStride and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or InStride may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by InStride or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from JAMS at www.jamsadr.com. The arbitration will be administered pursuant to JAMS’ Comprehensive Arbitration Rules and Procedures [and in accordance with the Expedited Procedures in those Rules] [or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures], as modified by these Terms of Use. The JAMS Rules and Forms are available online at www.jamsadr.com, by calling the JAMS at 1­-800­-352-5267, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Each party shall pay for its own costs and attorneys’ fees, if any.

No Class Actions. YOU AND INSTRIDE 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. Further, unless both you and InStride agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts in Los Angeles, California.

13. Severability

In the event any provision of these Terms of Use is held invalid or unenforceable, the remaining portions shall continue in full force and effect.

14. Assignment and Delegation

Assignments. We may assign our rights under these Terms of Use for any reason, including a change of control or merger as a result of the transfer of assets. You may not assign any of your rights under these Terms of Use, except with our prior written consent. All assignments of your rights are prohibited under this section, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this section, a “change of control” is deemed an assignment of rights, and “merger” refers to any merger in which you participate, regardless of whether you are a surviving or disappearing corporation.

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.

15. Integration

These Terms of Use represent the parties’ entire understanding relating to the use of the Site and supersedes any prior or contemporaneous, conflicting, or additional communications.

16. Relationship of the Parties

No joint venture, partnership, employment, or agency relationship exists between InStride and you as a result of these Terms of Use or use of the Site.

17. Waiver

The failure of either party to enforce any right or provision in these Terms of Use shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any and all rights not expressly granted herein are reserved by InStride.

18. Children

InStride does not accept Submissions from persons under the age of 13 (“Child” or “Children”). Furthermore, InStride does not accept any user who is a Child. You are ineligible to use this Site if you are under the age of 13. If you are under the age of 18, you must have your parent or legal guardian set up your account and have them agree to these terms. If you are under the age of 18, your parent or legal guardian’s consent to these terms is ongoing and they hereby warrant that they will review these Terms of Use for changes, and if any occur, that they will be amenable thereto until you reach age 18, at which point you hereby give your consent to these terms. Furthermore, to the extent any user under the age of 18 makes a Submission of copyrighted materials heretofore, their parent or legal guardian hereby grants InStride all rights to utilize the copyright and image / likeness embodied therein as further enumerated in these Terms of Use.

19. Contact

To contact or notify us of any matter related to these Terms of Use, please use the following information:

448 S Hill St 2nd Floor, Los Angeles CA 90013

(310) 954-1578

terms@instride.com

 

Last Revised: April 1, 2019.

Copyright © 2019 Attainment HoldCo Attainment Holdco, LLC, a Delaware public benefit limited liability company. All rights reserved.