Date Last Modified: 7/27/024
Welcome to Breeshia Wade, LLC’s (“Service Provider”) website!
These General Terms & Conditions (this “Agreement“) apply to: (1) all of the products, services and websites offered by Service Provider, including, but not limited to, the website (available at: www.breeshiawade.com) (the “Site”); (2) any Service Provider software; (4) professional services conducted by Service Provider that are both available live and on-demand (“Professional Service(s)”); and (5) any applications created by Service Provider whether available through a social networking site or content platform (such as the Healing White Grief application available at: https://breeshiawadellc.hbportal.co/public/healingwhitegrief/1-The_Program) (collectively, the “Service“). Please note that the availability of any Service Provider applications on a social networking site, mobile or tablet device, internet television or other technology platform does not indicate any relationship or affiliation between Service Provider and such social networking site, mobile or tablet device, or internet television or other technology platform.
This Service is not directed to persons under eighteen (18) years of age.
PLEASE READ THIS AGREEMENT VERY CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
-
APPLICABILITY
-
This Agreement sets forth legally binding terms for your use of the Service. By using the Service, you agree to be bound by this Agreement. You accept and agree to this Agreement by (1) clicking a box indicating acceptance, (2) executing an Order (as defined below) that references this Agreement, or (3) using any free aspect of the Service. If you are accepting on behalf of a Company or other legal entity, then you represent that you have the authority to bind such entity to this Agreement, in which case the term “you” shall refer to such entity. If you do not have such authority, or do not agree with this Agreement, then you must not accept this Agreement and may not use the Service.
-
-
An “Order” means an ordering document or online order placed in the applicable online purchasing portal specifying the Service to be provided hereunder that is entered into between you and Service Provider, including any addenda and supplements thereto. This Agreement is the entire agreement between Service Provider and you regarding your use of the Service and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a purchase order or in any other order documentation (excluding an Order) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
-
ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
-
Agreement to Arbitrate. You and Service Provider agree that any dispute between us (including disputes against any agent, employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other) relating to: (1) the Service; (2) any transaction or relationship between us resulting from your use of the Service; (3) the purchase, order, installation, or use of the Service; or (4) communications between us (including claims relating to advertisements and disclosures, email and mobile SMS or text messages sent by Service Provider or Service Provider’s collection or use of information), will be resolved exclusively and finally by binding arbitration and the arbitration decision may be enforced and judgment entered thereon in any court of competent jurisdiction. You and Service Provider further agree that this arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, and not by any state law concerning arbitration. You and Service Provider further agree that any determination regarding the applicability, enforceability, or validity of this arbitration agreement will be made by the arbitrator, not by any court.
-
Waiver of Jury Trial. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO A JURY TRIAL.
-
Arbitration Procedure. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal, however; an arbitrator can award the same relief that a court can award. The arbitration will be administered by the American Arbitration Association (“AAA“), and conducted under AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules“) then in effect at the time of the dispute. You may obtain copies of the AAA Rules and forms and instructions for initiating arbitration by visiting the AAA website at www.adr.org, or by calling AAA at (800) 788-7879. If for any reason the AAA is unavailable, the parties shall mutually select another arbitration forum.
-
No Representative Or Class Proceeding. Any arbitration shall be conducted only on an individual basis, and any claim shall not be arbitrated as a class action, in a purported representative capacity, or brought as a private attorney general. The arbitrator shall have no authority to: (1) consolidate more than one person’s claims against Service Provider; (2) preside over any kind of representative or class proceeding against Service Provider; or (3) award any kind of class-wide relief. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST US IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS REPRESENTATIVE, OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
-
If you do not agree to this arbitration agreement and class action waiver, you must tell us in writing and not use the Service.
-
-
SERVICE
-
Service Description. Service Provider shall provide the services to you as more fully described in the Order (the "Service") in accordance with these Terms. Service Provider shall use reasonable efforts to meet any performance dates specified in the Order, and any such dates shall be estimates only.
-
Privacy. Service Provider respects your privacy and permits you to control certain aspects of the treatment of your personal information as set forth in Service Provider 's Privacy Notice. The Privacy Notice is expressly incorporated into this Agreement by this reference.
-
Additional Terms. We may also require you to follow additional rules, guidelines or other conditions in order to participate in certain promotions or activities available through the Service, to obtain certain premium Content through the Service, or for other reasons. These additional terms are part of this Agreement, and you agree to comply with them when you participate in those promotions, or otherwise engage in activities governed by such additional terms.
-
Accounts. If you create an account on the Service, you also agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form available on the Site (the “Registration Data“) and (b) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Service Provider reserves the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) at any time. Service Provider’s materials and Service Provider’s Content (as defined in Section 3(h) of this Agreement) on the Service (collectively, “BW Content“) is provided to you “AS IS“ for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Service Provider. Other than rights expressly granted to you, Service Provider reserves all rights in and to the Service and the BW Content.
-
Account Security. If you register on the Service, you will be required to choose a password and username, and you may be asked for additional information regarding your account, such as your email address. You are responsible for maintaining the confidentiality of your password and account information, and are fully responsible for all activities that occur under your account. You agree to (a) immediately notify Service Provider of any unauthorized use of your account or any other breach of security, and (b) ensure that you log out from your account at the end of each session. Each registration is for a single user only, unless otherwise expressly provided on the registration page. You may never use an individual’s account without prior authorization from Service Provider. Service Provider will not be liable for any loss or damage arising from your failure to comply with this Agreement.
-
Acceptable Use. You may access the Site and BW Content as available:
-
for your information and personal use;
-
for communicating with Service Provider via the Service, as intended through the normal functionality of the Service; and
-
for Streaming (“Streaming“ or “Stream“ means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a user’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the user). Accessing videos via the Service for any purpose or in any manner other than Streaming is expressly prohibited. When you Stream BW Content, the resolution and quality of BW Content you receive will depend on a number of factors, including the type of device you are using and your bandwidth, which may fluctuate during the course of your viewing. While we strive to provide a quality viewing experience, we make no guarantee as to the resolution or quality of the Streaming BW Content you will receive.
-
-
Compatible Devices. In order to be able to Stream or download BW Content from the Service and to view BW Content on the Service, you will need to use a personal computer, portable media player, or other device that meets the system and compatibility requirements that we establish from time to time and is otherwise capable of interacting with the Service (each such device, a “Compatible Device“). We may change the requirements for Compatible Devices from time to time and, in some cases, whether a device is (or remains) a Compatible Device may depend on software or systems provided or maintained by the device manufacturer or other third parties. As a result, devices that are Compatible Devices at one time may cease to be Compatible Devices in the future.
-
Restrictions. You agree not to use the Service i) solely for purposes of political or social commentary, ii) for demonstration/teaching/discussion with groups intended to reach more than the number of people for whom you have purchased access to the Service, including with recorded sessions, or iii) to post or otherwise transmit information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials, including but not limited to the transmission of information via the Service (individually and collectively, “Content“) that:
-
Interferes with or disrupts the Service;
-
is inaccurate, off-topic, irrelevant, or inappropriate for the purposes of the Service; is patently offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
-
harasses or advocates harassment of another person;
-
exploits people in a sexual or violent manner;
-
contains nudity, violence, pornography, sexually explicit material or offensive subject matter;
-
provides any telephone numbers, street addresses, last names or email addresses of anyone other than your own;
-
promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
-
violates any intellectual property or other proprietary right of any third party, including Content that promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
-
involves the transmission of “junk mail,“ “chain letters,“ or unsolicited mass mailing, instant messaging, “spimming,“ or “spamming“;
-
contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
-
furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
-
solicits passwords or personal identifying information from other users;
-
involves commercial activities and/or sales without Service Provider’s prior written consent, such as contests, sweepstakes, barter, advertising, and/or pyramid schemes;
-
includes a photograph of another person that you have posted without that person’s consent or otherwise constitutes an invasion of an individual’s privacy or infringement of publicity rights;
-
denigrates, ridicules, or demeans another person; or
-
contains a virus or other harmful component.
-
-
Restrictions on Automated Access. Moreover, you may not (a) use any “deep link,“ “page scrape,“ “robot,“ “spider,“ or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Service or in any way reproduce or circumvent the navigational structure or presentation of the Service to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Service, (b) attempt to gain unauthorized access to any portion or feature of the Service or any other systems or networks connected to the Service or to any Service Provider server or to any of the services offered on or through the Service, by hacking, password “mining,“ or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service, (d) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Service, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or Service Provider’s systems or networks or any systems or networks connected to the Service, (f) use any device, software, or routine to interfere with the proper working of the Service or any transaction conducted on the Service, or with any other person’s use of the Service, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to Service Provider on or through the Service, or (h) use the Service in an unlawful manner.
-
Content Security. You understand that the Service and software embodied therein may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Service Provider and/or content providers who provide content to Service Provider. You may not attempt to override, disable, circumvent or otherwise interfere with any such security components and usage rules embedded into the Service.
-
Content on the Service. You acknowledge that Service Provider may or may not pre-screen Content posted on the Service, that Service Provider is not responsible for behavior or comments of other users on the Service, but that Service Provider shall have the right (but not the obligation) in its sole discretion to pre-screen, edit, refuse, or remove any Content or portion thereof that is available via the Service, for any reason. Without limiting the foregoing, Service Provider shall have the right to remove from the Service any Content that violates this Agreement or is otherwise objectionable in the sole and absolute discretion of Service Provider.
-
Account Suspension or Termination. If Service Provider determines in its sole discretion that you are violating any of the terms of this Agreement, Service Provider may: (1) notify you, and (2) use technical measures to block or restrict your access or use of the Service. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Service, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use. If Service Provider terminates your account or suspends or discontinues your access to the Service due to your violations of this Agreement, then you will not be eligible for any credit, refund or discount or other consideration.
-
No Commercial Use. The Service may not be used in connection with any commercial purposes, except as specifically approved by Service Provider. Unauthorized framing of or linking to any of the Service is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from user accounts and Content without notice and may result in termination of account privileges.
-
Modification of Content or Service. We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Service or Content (or any portion of the foregoing) with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Service or Content.
-
YOUR RESPONSIBILITIES
-
Your Content. You, and not Service Provider, are entirely responsible for all Content that you post, email, transmit or otherwise make available via the Service. Service Provider does not control the Content posted by third parties via the Service and, as such, we do not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that you deem offensive, indecent or objectionable. Under no circumstances will Service Provider be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred at any time as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
-
General Responsibilities. You shall:
-
notify Service Provider If it becomes aware of misuse of the Service by any person;
-
cooperate with Service Provider in all matters relating to the Service and provide such access to your premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services;
-
respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
-
provide Service Provider with such materials or information as Service Provider may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;
-
obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Service before the date on which the Service are to start; and
-
and, in the event you have authorized an individual to use a Service, for whom you have purchased a subscription (or in the case of any Service provided by Service Provider without charge, for whom a Service has been provisioned), and to whom you(or, when applicable, Service Provider at your request) has supplied a user identification and password (for any Service utilizing authentication) (each, an “Authorized User”), you shall ensure that its Authorized Users do not: (1) use the Service or Deliverables to make deceptive or misleading claims about Service Provider or the Service, (2) make any claims about Service Provider or the Service that are not backed up by evidence; (3) disclose any Confidential Information of Service Provider; (4) disparage Service Provider or the Service. You agree to be responsible for the acts or omissions of your Authorized Users, as though such act or omission was committed by you directly. An Authorized User may include, for example, employees, consultants, contractors and agents of yours, and third parties with which you transact business.
-
-
Prevention of Performance. If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of you or your agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay.
-
-
CHANGE ORDERS
-
If either party wishes to change the scope or performance of the Service, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to you of:
-
the likely time required to implement the change;
-
any necessary variations to the fees and other charges for the Services arising from the change;
-
the likely effect of the change on the Services; and
-
any other impact the change might have on the performance of this Agreement.
-
-
Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 14(i).
-
Notwithstanding Section 5(a) and Section 5(b), Service Provider may, from time to time change the Services without your consent provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order.
-
Service Provider may charge for the time it spends assessing and documenting a change request from you on a time and materials basis in accordance with the Order.
-
-
DEPOSIT; FEES AND EXPENSES; PAYMENT TERMS
-
Fees Generally. In consideration of the provision of the Service by Service Provider and the rights granted to you under this Agreement, you shall pay the fees for any online course ordered (“Course Fees”) or professional services (“Professional Services Fees”) set forth in the Order or online purchasing portal (Course Fees and Professional Services Fees, together, “Fees”).
-
Deposit. In the event that a deposit is required as set forth in your Order ("Deposit"), such Deposit shall be non-refundable. The Deposit shall be credited toward the applicable Fees for the Service. By paying the Deposit, you lock in the rate for the Service as specified in the Order. The balance of the applicable Fees, after crediting the Deposit, shall be payable according to the payment schedule outlined in your Order.
-
Course Fees. Service Provider offers paid access to its classes (“BW Classes“), as well as paid access to its course materials, intended to help Authorized Users consistently practice. Service Provider reserves the right to cancel, interrupt, modify, reschedule, or discontinue any BW Content or BW Classes. Subject to your payment of any applicable Course Fees (including applicable taxes) and your compliance with all of the other terms Service Provider specifies for the Service, Service Provider grants you a non-exclusive, non-transferable, limited right and license, so long as the BW Classes are available on the Service, to access, view, use, and display BW Classes for non-commercial, personal use.
-
Billing for Course Fees. Course fees, which provide you with access to BW Classes and related materials, are billed upfront as specified at the time of purchase. Course fees are non-refundable and non-cancellable.
-
No Sharing of Class Access. You may not share, give or sell their password or username to any other person or entity. Excessive viewings or logins by any user will be construed by Service Provider as fraudulent use of the Service, which will result in the immediate cancellation of your account without refund.
-
Professional Services Fees and Expenses. Service Provider shall bill you for Professional Services Fees in the amounts stated in an Order on the payment schedule specified in such Order. You shall pay all invoiced amounts due to Service Provider on receipt of Service Provider's invoice. You agree to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Service, including lodging and meals.
-
Late Payments. In the event Fees are not received by Service Provider within 30 days after becoming due, Service Provider may:
-
charge interest on any such unpaid Fees at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
-
suspend performance for all Services until payment has been made in full.
-
-
Taxes. You shall be 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 entity on any amounts payable by you hereunder.
-
-
INTELLECTUAL PROPERTY
-
Your Content. By posting, displaying, publishing, transmitting, or otherwise making available any Content, including any communications via the Service, you hereby grant to Service Provider a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, create derivative works, publish, publicly perform, publicly display, store, reproduce, transmit, distribute, and otherwise make available such Content on and through the Service, in print, or in any other format or media now known or hereafter invented, without prior notification, compensation, or attribution to you, and without your consent. If you wish to remove any Content from the Service, your ability to do so may depend on the type of Content, the location and manner of posting, and other factors. You may contact us to request the removal of certain Content you have posted, but Service Provider has no obligation to remove any such Content, may choose whether or not to do so in its sole discretion, and makes no guarantee as to the complete deletion of any such Content and copies thereof. Notwithstanding the foregoing, a back-up or residual copy of any Content Posted by you may remain on Service Provider’s servers after the Content appears to have been removed from the Service, and Service Provider retains the rights to all such remaining copies. You represent and warrant that: (a) you own all right, title and interest in all Content posted by you on or through the Service, or otherwise have the right to grant the license set forth in this section, and (b) the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, publishing, trademarks, patents, trade secrets, contract rights, confidentiality, or any other rights of any third party.
-
Service Provider Content.
-
Ownership. All Content created and provided during your receipt of any Service, including but not limited to curated homework, worksheets, assignments, is owned by Service Provider or third parties and protected under copyright laws.
-
License. Our Service contains any deliverables expressly identified in an Order (“Deliverables”), BW Content, and Content of third party licensors to Service Provider (including Content provided by users of the Service, as described above), which is protected by copyright, trademark, patent, trade secret and other laws. Service Provider owns and retains all rights, title and interest in the Deliverables and BW Content. Subject to your payment of applicable Fees, Service Provider hereby grants to you by and through your Authorized Users, a limited, non-exclusive, revocable, non-sublicensable license to Stream and/or view the BW Content and any third party Content located on or available through the Service (excluding any software code therein as set forth above) solely for your personal, non-commercial use in connection with viewing and using the Service. Except for Content posted by you, you may not copy (unless expressly authorized to do so by Service provider), modify, translate, publish, broadcast, transmit, distribute, perform, display, make available, or sell any Content appearing on or through the Service. You may not add, delete, distort, or otherwise modify the Deliverables or BW Content. Where expressly authorized to do so, each Authorized User may only download or otherwise make one (1) copy of any Deliverable for personal, non-commercial use solely in support of an Authorized User’s receipt of the Service in accordance herewith. Any copy of a Deliverable made by an Authorized User: (i) may not be use outside of its intended purpose; (ii) will be the exclusive property of Service Provider; (iii) will be subject to the terms and conditions of this Agreement; and (iv) must include all Intellectual Property Rights notices contained in the original. Any unauthorized attempt to modify any Deliverable or BW Content, to defeat or circumvent any security features, or to utilize the Service or any part of the Deliverables or BW Content for any purpose other than its intended purposes is strictly prohibited.
-
-
DMCA Takedown Notice Requests. If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify us by providing the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. sec. 512 (“DMCA“)):
-
A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
-
Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
-
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
-
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
-
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
-
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
-
-
Please send the DMCA communication to the following name and address: Customer Support at support@breeshiawade.com.
-
Service Provider reserves the right in its sole discretion to immediately suspend and/or terminate access to the Service by any user who is alleged to have infringed on the intellectual property rights of Service Provider or of a third party, or otherwise violated any intellectual property laws or regulations. Service Provider’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Service Provider to delete, edit, or disable the material in question, you must provide Service Provider with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Service Provider to locate the material; (d) information reasonably sufficient to permit Service Provider to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Service Provider by email with a return receipt acknowledgement.
-
Remedies. In the event of any unauthorized use or infringement of the BW Content or Deliverables, the Service Provider shall have the right to pursue all remedies available under applicable law, including but not limited to injunctive relief, actual damages (including lost licensing fees), the infringer's profits, statutory damages, and attorney's fees. With respect to lost licensing fees, the parties agree to the following:
-
that a licensing market exists for the type of use in question;
-
in the absence of sufficient comparable licensing agreements or sufficient industry standard licensing rates, that the lost licensing fees shall be determined based on a hypothetical negotiation between the Service Provider and you at the time the infringement began and that this rate shall reflect the amount that both parties would have agreed upon in good faith, considering the bargaining positions of both parties and the value of the copyrighted work;
-
to provide all necessary documentation and evidence to support the determination of the lost licensing fees (this includes, but is not limited to, prior licensing agreements, market analyses, documented offers or negotiations related to the licensing of similar works, and any other pertinent information);
-
notwithstanding the above, the parties agree that the lost licensing fees shall not be less than four hundred ninety-five dollars ($495 USD) per use/license, or thirty percent (30%) of the gross revenue generated by the infringing use, whichever is higher.
-
-
CONFIDENTIAL INFORMATION
-
All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Service Provider to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by you without the prior written consent of Service Provider. Confidential Information does not include information that is:
-
in the public domain;
-
known to you at the time of disclosure;
-
rightfully obtained by you on a non-confidential basis from a third party;
-
developed by your employees, contractors, or agents who had no access to the Service, or any Content or Deliverables.
-
-
You agree to use the Confidential Information only to make use of the Service, Content, and Deliverables.
-
Service Provider shall be entitled to injunctive relief for any violation of this Section.
-
-
OTHER SITES
The Service may contain links to other sites owned by third parties (i.e. advertisers, affiliate partners, strategic partners, or others). We are not responsible for examining or evaluating, and we do not warrant the services, products or offerings of, any of these businesses or individuals, or the accuracy of the content of their website. Service Provider does not assume any responsibility or liability for the actions, product, and content of any such website. Before you use any third party website, you should review the applicable terms of use and policies for such website. The inclusion of a link in or on the Service does not imply Service Provider’s endorsement of such third party website. If you decide to access any such linked website, you do so at your own risk.
-
DISCLAIMERS
-
You agree that your use of the Service shall be at your sole risk. The Service, Content, and Deliverables are provided “AS IS“ and without warranties of any kind, either express or implied. To the fullest extent permitted by law, Service Provider, its officers, directors, employees, and agents disclaim all warranties, express or implied, in connection with the Service, Content and Deliverables and your use thereof. Service Provider makes no warranties or representations about the accuracy or completeness of BW Content or the content of any sites linked to the Service and assumes no liability or responsibility for any (I) errors, mistakes, or inaccuracies of content, (II) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Service, (III) any unauthorized access to or use of Service Provider secure servers and/or any and all personal information and/or financial information stored therein, (IV) any interruption or cessation of transmission to or from the Service, (V) any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the Service by any third party, and/or (VI) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Service.
-
-
LIMITATION OF LIABILITY
-
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
-
IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
-
INDEMNITY
-
You agree to defend, indemnify and hold harmless Service Provider, its subsidiaries, affiliates, subcontractors, officers, directors, employees, consultants, representatives and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees and costs) arising from: (i) your use of and access to the Service, Content or Deliverables; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your submissions of Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Service.
-
-
TERMINATION
-
Termination By You. This Agreement shall remain in full force and effect for so long as it is posted on the Website. You may terminate your account at any time, for any reason, by contacting support@breeshiawade.com. You will not receive a refund.
-
Termination By Service Provider. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to you, if you:
-
fail to pay any amount when due under this Agreement and such failure continues for 30 days after your receipt of written notice of nonpayment;
-
have not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
-
become insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
-
-
Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Arbitration Agreement and Class Action Waiver, Deposit; Fees and Expenses, Payment Terms (to the extent payment remains outstanding), Intellectual Property, Confidential Information, Disclaimers, Limitation of Liability, Termination, and General.
-
GENERAL
-
Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
-
Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of yours to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, disasters, catastrophes, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 12(b), the other party may thereafter terminate this Agreement upon 10 days' written notice.
-
Assignment. You shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of its obligations under this Agreement.
-
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
-
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
-
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the New York City and Kings County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
-
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) [or email] or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
-
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
-
Amendment and Modification. We will post a notification on the Service in the event of any material changes to this Agreement. Such changes, whether in the form of modifications, additions, or deletions, shall be effective when specified in the relevant notification or, if the change is immaterial, immediately upon appearing on the Service. Your continued use of the Service following our posting of any changes to this Agreement means that you accept those changes.
-
International Use. Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you; all other provisions of this Agreement remain in full force and effect.
-