Last Updated: March 26, 2024
Welcome, and thank you for your interest in Markstein Consulting, LLC (“Company”, “we” or “us” used herein). This Terms of Use Agreement (“Agreement”) describes the terms and conditions applicable to your use of the Company websites (see list below) and any applicable mobile application and their respective content, programs, networks, applications, applicable Contests (as defined in Section 21 herein), subscriptions, services, features, tools, newsletters, and materials (“Site”) available under the domain and sub-domains of the Site and is a legally binding contract between you and Company. The Site, and your use thereof, is subject to these Terms of Use (the “Terms of Use” or “Terms”), our privacy policy (the “Privacy Policy”) and rules, regulations, and conditions related to applicable Contests (the “Rules”). This Agreement also contains waivers, limitations of liability, and indemnification provisions for the benefit of Company and certain other third parties related to Company, including its competitors; if you do not or cannot agree with any part of this Agreement, you may not use the Site and/or any part of the Site. As stated above, the Company and other third-party websites that are included in the definition of “Site” are as follows:
PLEASE READ THE FOLLOWING TERMS CAREFULLY
BY USING OR OTHERWISE ACCESSING OUR SITE, OR CLICKING TO ACCEPT OR AGREE TO THESE TERMS WHEN AVAILABLE, YOU ARE ACCEPTING AND AGREEING TO ADHERE TO THESE TERMS, OUR PRIVACY POLICY, AND ANY ADDITIONAL RULES RELEATED TO PROMOTIONAL CONTENTS (COLLECTIVELY, THE “POLICIES”), AND REPRESENTING AND WARRANTING THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO, ABIDE BY, AND COMPLY WITH THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE POLICIES, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SITE. YOUR USE OF THE SITE CONSTITUTES AN AGREEMENT BY COMPANY AND BY YOU TO BE BOUND BY THESE POLICIES.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 19 of this Agreement, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement (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.
This Site is owned and operated by Company. Unless otherwise noted on the Site, all digital platforms, media, and information relating to and/or on the Site, including without limitation all visual interfaces, graphics, design, compilation, information, audio, video, data, online services, text, pictures, games, animation, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Content”) are protected by exclusive rights, copyrights, trademarks, service marks, patents, and/or other proprietary rights of Company or third parties who have licensed Company to make such Content available to Site users. Company, on behalf of itself, its Content providers, and licensors, expressly reserves any and all intellectual property rights in all Content accessible through this Site. Except as expressly provided herein, no right, title, or interest in any Content is transferred to you as a result of your registration with the Site, your use of the Site or your payment (if applicable) to Company or any third party in exchange for the ability to access and view particular Content.
You must be at least thirteen (13) years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years old; (b) you have not previously been suspended or removed from any part of the Site; and (c) your registration for and/or use of the Site is in compliance with any and all applicable laws and regulations. Additionally, persons under the age of eighteen (18) may not undertake transactions or take other legal acts on this Site without the prior written express consent of a parent or legal guardian, unless permitted by applicable law.
3.1 All use of the Site and Content is for your private, non-commercial viewing and use ONLY. Through the Site, Company and third-party Content and service providers make their Content available to Site users, including you, subject to certain written and/or electronic restrictions which may limit your access to or use of the Content on a title-by-title basis (e.g., time and geographic restrictions, membership level restrictions). You acknowledge that Company or its licensors may include digital rights management technology in the Content, and that such technology may “time out” or automatically disable your ability to view and use certain downloaded or streaming Content after a stated period of time.
3.2 Subject to your complete and ongoing compliance with these Terms under this Agreement, Company grants you, solely for your personal, private, and non-commercial use in accordance with this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
3.3 Except and solely to the extent such a restriction is impermissible under applicable law or as otherwise stated by Company in these Terms, you may not: (a) reproduce, distribute, transmit, perform, republish, rebroadcast, translate, modify, create derivative works or compilations from, sell or otherwise exploit, in whole or in part, any of the Site or Content; (b) make modifications to the Site; (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism; (d) use the Site and/or Content so as to violate any copyrights, trademarks, patents, trade secrets, privacy or publicity rights, or any other intellectual property rights of Company or any other third party; (e) use the Site and/or Content so as to violate any communications regulations or statutes, or any other local, state, national, or international laws, including without limitation laws concerning defamation, harassment, obscenity, pornography, misrepresentations, or omissions; (f) interfere with the Site’s service to any user, host, or network, including without limitation via means of submitting a virus to the Site or its users, overloading, “flooding”, “spamming”, mailbombing”, or “crashing”; (g) “mirror” or frame any Content contained on or through the Site by any means; (h) remove, decompile, disassemble, or reverse engineer any Site software or Content; (i) use any robot, spider, bot, or other automatic device or process to monitor or copy any portion of this Site or any Content; (j) test, probe, or scan the vulnerability of the Site or breach security or authentication measures; (k) use the Site for the purpose of gathering information for or transmitting unsolicited email, including promotions and/or advertising of products or services; (l) export or re-export the Site, Content, or any portion thereof, or any software available on or through the Site, in violation of any applicable export control laws or regulations; (m) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth; and/or (n) assist or permit any person in engaging in any of the acts described in this paragraph.
3.4 If you are prohibited under applicable law from using the Site, you may not use it. If you violate this Agreement, your permission to access and use the Site will automatically terminate as determined by Company in its sole discretion.
3.5 You may establish only one account per person to participate in the services offered on the Site. In the event Company discovers that you have opened more than one account per person, in addition to any other rights that Company may have, Company reserves the right to suspend or terminate any or all of your accounts and terminate, withhold, or revoke the awarding of any benefits relating to Contests.
3.6 Pricing and/or terms of sale relating to your use of the Site and/or any part thereof, if applicable, will be those in effect at the time of your use of the Site. Notwithstanding the foregoing and anything herein to the contrary, Company reserves the right to modify the price of any fee-based service or feature within the Site at any time without need for advanced notice.
To access some features of the Site, you may be required to register and create a personal account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, date of birth, address, email address, or other contact information (or such other form of identification as we may require). You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected]. Furthermore, we reserve the right, and you authorize us, to use all information about you in a manner consistent with the Privacy Policy.
In order to avoid potential misunderstandings and conflicts, we do not accept or consider creative ideas, suggestions, or materials other than those we have specifically requested. All unsolicited creative materials, suggestions, ideas, or other information communicated by you to Company (“Submissions”) will be deemed the property of Company, and without limitation, we will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere, including without limitation the unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Submissions in any manner and for any commercial or other purpose whatsoever, including without limitation to improve the Site and create additional Content (including without limitation new products and services), without compensation to you or any other person who contributed to the Submission. We will not be required to treat any Submission as confidential or subject to a proprietary interest owned by you or any other person who may have contributed to the Submission. You acknowledge that you are responsible for whatever material you submit, and you, not Company, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
6.1 The Site may contain links to third-party websites and/or applications that are not owned or controlled by Company. Company has no control over, and assumes no responsibility for, the content, services, privacy policies, or practices of any third-party websites or other applications (the “Third-Party Content”). In addition, Company will not and cannot censor or edit any Third-Party Content. You agree that Company is not responsible for any and all Third-Party Content that such third parties make available through the Site. You also agree that, to the extent Site users post any information on the Site, those users, and not Company, are entirely responsible for all information posted by them, including without limitation photos, video, images, folders, data, text, and other types of works (the “User Content”). Company and its licensors do not guarantee the accuracy, integrity, or quality of any Third-Party Content or User Content. Neither Company nor its licensors shall be liable in any way for any Third-Party Content and/or User Content made available on the Site, including without limitation for any loss or damage of any kind from infringement of any copyright, performing right, right of privacy, trademark, moral right, patent, trade secret, or other proprietary right or interest, or from any defamation, obscenity, pornography, harassment, error, or omission.
6.2 Company may provide tools through the Site that enable you to export information to third party services, including through features that allow you to link your account on Company’s Site with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using these tools, you agree that Company may transfer that information to the applicable third-party service. Third-party services are not under Company’s control, and, to the fullest extent permitted by law, Company is not responsible for any third-party service’s use of your exported information.
6.3 Additionally, inclusion of links from our Site to any third-party website or other third-party digital platform or medium does not imply our approval or endorsement of the third party and/or such third-party website or other digital platform or medium. If you decide to leave our Site and access the third-party sites or other third-party digital platform or medium, you do so at your own risk. Company is not responsible for the availability of such external sites or other third-party digital platform or medium and does not endorse and is not responsible or liable for any content, privacy policies, advertising, products, or other materials on or available from such sites or other third-party digital platform or medium. You acknowledge and agree that Company will not be liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available through any such third-party sites or other third-party digital platform or medium.
6.4 The Site may include or incorporate third-party software components (“Third-Party Components”). Although the Site is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
6.5 Your use of the Site constitutes your agreement to any and all terms and conditions and privacy policies of third parties related to Third-Party Content you come into contact with through your use of the Site (the “Third-Party Terms”). If you do not or cannot agree with any part of the Third-Party Terms, you may not use the Site and/or any part of the Site.
7.1 Company may from time to time offer mobile applications (“Mobile Apps”). Mobile Apps are part of the Site and governed by these Terms.
7.2 If you choose to use any of our Mobile Apps, then Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to download, install, and use the Mobile App for your personal, non-commercial use on a mobile device that you own or control.
7.3 You acknowledge and agree that our Mobile Apps are offered under license, and not sold to you. You do not acquire any ownership interest in any of our Mobile Apps under these Terms or any other rights other than to use a Mobile App in accordance with and subject to these Terms. Company and its third-party licensors reserve and retain their entire right, title, and interest in and to each Mobile App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you under the license described in these Terms.
7.4 When you download a Mobile App from a third-party application platform, such as Google Play or Apple’s App Store (“App Platform”), you acknowledge and agree that:
(A) These Terms are an agreement between you and Company and not with the App Platform. As between Company and the App Platform, Company is solely responsible for its Mobile Apps;
(B) The App Platform has no obligation to provide any maintenance and support services with respect to the Mobile Apps;
(C) The App Platform is not responsible for addressing any claims you have relating to the Mobile Apps or your possession and use of the Mobile Apps;
(D) The App Platform and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the Mobile Apps. Upon your acceptance of the terms and conditions of these Terms, the App Platform will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Mobile Apps against you as a third-party beneficiary thereof; and
(E) You must also comply with all applicable third-party terms, including the App Platform’s terms of service, when using the Mobile Apps.
8.1 Certain features of the Site may permit users to upload User Content to the Site, and to publish User Content on the Site. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Site.
8.2 By providing User Content to or via the Site, you grant Company an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, whether or not for commercial purposes.
8.3 Company disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Site. By providing User Content via the Site, you affirm, represent, and warrant that:
(A) You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Company and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Company, the Site, and these Terms;
(B) Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause Company to violate any law or regulation; and
(C) Your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.4 We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Company may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Site, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Company with respect to User Content. If notified by a user or User Content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Company does not permit copyright-infringing activities on the Site.
8.5 Company does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Site by its users. However, and notwithstanding the foregoing, you acknowledge and agree that Company reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Site for operational and other purposes. If at any time Company chooses to monitor the content, Company still assumes no responsibility or liability for content, or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy within these Terms.
In order to ensure that Company provides a high-quality Site that is in compliance with all applicable laws, Company reserves the right to access your account and information to investigate complaints or allegations of abuse against you. Company does not have an obligation to inform you of any complaints against you or the commencement or results of any investigation. Company has no obligation to investigate any complaint made by you or against you. We reserve the right, but have no obligation, to take any action we deem appropriate following an investigation, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any relevant information, including without limitation your contact information, usage history, posted materials, IP addresses and traffic information.
We reserve the right to refuse service, including registration, subscription, or any transactions, to anyone for any reason or no reason. You agree that Company, in its sole discretion and without advance notice to you, may terminate, suspend, or otherwise place restrictions on your account, password, or use of the Site, for any reason or no reason. Upon termination of your account, you must cease use of the Site, erase any Content from all computer memories and storage devices within your possession or control, and destroy all materials obtained in connection with the Site and all related documentation and all copies and installations thereof. You agree that Company and its licensors will not be liable to you or any third party for any refusal of service, suspension, termination, or other restriction of your access to or use of the Site or any third party’s access to or use of the Site.
Company reserves the right to modify or discontinue, temporarily or permanently, the Site (or any part thereof) without advance notice to you. You agree that Company and its licensors will not be liable to you or to any third party for any modification of the Site or any interruption of the availability of the Site, regardless of reason or duration. Company reserves the right to modify the price of any fee-based service or feature within the Site at any time without need for advanced notice. Company is not responsible for any error in copy, images, or video relating to any service or feature of the Site.
Company and those acting on our behalf may send you text (SMS) messages at the phone number you provide us, including to verify your account upon registration. When you provide your phone number, you agree to receive messages from us. These messages may include operational messages about your use of the Site, account verification, and password reset instructions. You may update the phone number associated with your account at any time through the Site or by sending an email to [email protected]. Operational text messages are essential to the Site. If you do not wish to receive operational text messages from us, do not use the Site. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Site. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. Additionally, we may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
13.1 We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent at the following address:
Markstein Consulting, LLC
ATTN: Keelie Segars
Markstein #103
1919 Oxmoor Road
Homewood, AL 35209
Email: [email protected]
13.2 Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:
(A) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(B) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(C) A description of the material that you claim is infringing and where it is located on the Site;
(D) Your address, telephone number, and email address;
(E) A statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(F) A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
13.3 Company will promptly terminate the accounts of users that are determined by Company to be repeat infringers.
We reserve the right to change these Terms on a going-forward basis at any time, and the revised version will be effective when it is posted. Please check these Terms periodically for changes, as it is your responsibility to review these Terms for any changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Site. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. However, and notwithstanding the foregoing or anything herein to the contrary, your continued use of the Site constitutes your agreement to any updated Terms on a prospective basis.
15.1 These Terms are effective beginning when you accept the Terms or first access or use the Site and ending when terminated as described herein.
15.2 If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, Company may, at its sole discretion, terminate these Terms or your account on the Site, or suspend or terminate your access to the Site, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at [email protected].
15.3 Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Site; (b) you will no longer be authorized to access your account or the Site; (c) you must pay Company any applicable unpaid amount that was due prior to termination; and (d) all applicable payment obligations accrued prior to termination and Sections 1, 3.3, 5, 8.2, 8.3, 15.3, 16, 17, 18, 19, 20, 21.1(D), 21.1(F), 21.1(H), and 21.2 will survive.
15.4 Company reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Company will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Company and its owners, members, shareholders, officers, directors, managers, employees, consultants, affiliates, subsidiaries, attorneys, and agents (together, the “Company Entities”) from and against every claim brought by you or a third party, and any related liability, damage, loss, costs, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site, including without limitation payment methods used, funding of your account, and/or your participation in any Contest or other promotion; (b) your use of any third-party website, other application, or and/or content; (c) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (d) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (e) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
17.1 FOR PURPOSES OF THIS AGREEMENT, THE TERM “SITE CONTENT” SHALL MEAN ANY AND ALL CONTENT, USER CONTENT, AND THIRD-PARTY CONTENT RELATING TO THE SITE.
17.2 THE SITE AND ALL SITE CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL SITE CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY SITE CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMPANY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
17.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR COMPANY ENTITIES OR ANY SITE CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE COMPANY ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE AND YOUR DEALING WITH ANY OTHER SITE USER AND/OR ANY OTHER THIRD-PARTY CONTENT OR SERVICE PROVIDER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA, INCLUDING WITHOUT LIMITATION USER CONTENT.
17.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT COMPANY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
17.5 IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT IF KNOWN BY HIM WOULD HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”.
18.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO SITE CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COMPANY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
18.2 EXCEPT AS PROVIDED IN SECTION 18.5 HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COMPANY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO ONE HUNDRED U.S. DOLLARS ($100).
18.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18.4 IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, SITE CONTENT, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SITE CONTENT.
19.1 In the interest of resolving disputes between you and Company in the most expedient and cost-effective manner, and except as described in Sections 19.2 and 19.3 below, you and Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19.2 Despite the provisions in Section 19 herein, nothing in these Terms 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 that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
19.3 If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of Section 19 herein within thirty (30) days after the date that you agree to these Terms by sending a letter to Markstein Consulting, LLC, Attention: Legal Department – Arbitration Opt-Out, Markstein #103 1919 Oxmoor Road Homewood, AL 35209 that specifies: your full legal name, the email address associated with your account on the Site, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Company receives your Opt-Out Notice, the entirety of Section 19 herein as between you and Company will be void and any action arising out of these Terms will be resolved as set forth in Section 20.3 herein. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
19.4 Any arbitration between you and Company will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
19.5 A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is: Markstein Consulting, LLC, Markstein #103 1919 Oxmoor Road Homewood, AL 35209. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) Ten Thousand U.S. Dollars ($10,000).
19.6 If you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for more than Ten Thousand U.S. Dollars ($10,000), in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place in Jefferson County, AL, but if the claim is for Ten Thousand U.S. Dollars ($10,000) or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance-based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in Jefferson County, AL. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
19.7 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. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
19.8 If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within thirty (30) days of the change to Company’s address for Notice of Arbitration, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
19.9 If Section 19.7 herein or the entirety of this Section 19 is found to be unenforceable, or if Company receives an Opt-Out Notice from you, then the entirety of this Section 19 as between you and Company will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20.3 herein (“Governing Law”) will govern any action arising out of or related to these Terms.
20.1 General Terms. These Terms, together with the Policies and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Company regarding your use of the Site, and supersedes any and all prior agreements, discussions, information, understandings, representations, warranties, and covenants regarding the same, whether oral or written. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Nothing in these Terms of Use shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary relationship, or joint venture between you and Company.
20.2 Third Party Beneficiaries. You and Company acknowledge and agree that all Company Entities (excluding Company) are third party beneficiaries of this Agreement. In addition to Company’s rights therein, the provisions contained in Section 3 herein (“Permissible Uses and Licenses; Prohibited Conduct”) are made expressly for the benefit of the Company Entities and are enforceable by the Company Entities.
20.3 Governing Law. These Terms are governed by the laws of the State of Alabama without regard to conflict of law principles. You and Company submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Jefferson County, AL for resolution of any lawsuit or court proceeding permitted under these Terms.
20.4 Privacy Policy. Please read the Company’s Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Company’s Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
20.5 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from any portion of the Site (together with all Agreements, the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
20.6 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
20.7 Contact Information. The Site is offered by Markstein Consulting, LLC, Markstein #103 1919 Oxmoor Road Homewood, AL 35209. You may contact us by sending correspondence to that address or by emailing us at [email protected].
20.8 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
20.9 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
20.10 International Use. The Site is intended for visitors located within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.
20.11 Force Majeure. The failure of Company to comply with any provision due of these Terms due to a force majeure event including but not limited to an act of God, hurricane, war, fire, riot, earthquake, terrorism, epidemic, pandemic, labor strike, or actions of governmental authorities outside of the control of the Company will not be considered a breach of these Terms.
21.1 From time to time, we may offer you the opportunity to participate in contests, sweepstakes, or other promotions (the “Contests”). By entering into a Contest, You agree to the following:
(A) You may not transfer, assign, sell, trade, or barter any benefit that you receive through our Contests;
(B) Unless required by law, any Contest-related benefit may not be combined with a benefit received in connection with any other Contest;
(C) You agree to be bound by the specific terms and conditions relating to such Contest, including all eligibility and waiver/release requirements;
(D) You indemnify, release, and to hold harmless the Company Entities from any and all liability, claims, or actions of any kind whatsoever, including but not limited to injuries, damages, or losses to persons and property which may be sustained in connection with participation in the Contest, the receipt, ownership, use, or misuse of any prize or while preparing for, participating in and/or traveling to or from any prize related activity, as well as any claims based on publicity rights, defamation, or invasion of privacy;
(E) The Company, at its sole discretion, may disqualify any entrant from a Contest, refuse to award benefits or prizes and require the return of any prizes, if the entrant engages in conduct or otherwise utilizes any information the Company deems to be improper, unfair, or otherwise adverse to the operation of the Contest or is in any way detrimental to other entrants or to the Company;
(F) Company is not responsible for: any incorrect, invalid, or inaccurate entry information; human errors; postal delays/postage due mail; technical malfunctions; failures, including public utility or telephone outages; omissions, interruptions, deletions, or defects of any telephone system or network, computer online systems, data, computer equipment, servers, providers, or software (including, but not limited to software and operating systems that do not permit an entrant to participate in a Contest), including without limitation any injury or damage to any entrant’s or any other person’s computer or video equipment relating to or resulting from participation in a Contest; inability to access the Site, or any web pages or other digital medium that are part of or related to the Site; theft, tampering, destruction, or unauthorized access to, or alteration of, entries and/or images of any kind; data that is processed late or incorrectly or is incomplete or lost due to telephone, postal issues, computer, or electronic malfunction or traffic congestion on telephone lines or transmission systems, or the Internet, or any service provider’s facilities, or any phone site or website or for any other reason whatsoever; typographical, printing, or other errors, or any combination thereof;
(G) Company is not responsible for incomplete, illegible, misdirected, or stolen entries. If for any reason a Contest is not capable of running as originally planned, or if a Contest, computer application, or website associated therewith (or any portion thereof) becomes corrupted or does not allow the proper entry to a Contest in accordance with these Terms or applicable Contest Rules, or if infection by a computer (or similar) virus, bug, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Company corrupts or affects the administration, security, fairness, integrity, or proper conduct of a Contest, the Company reserves the right, at its sole discretion, to disqualify any individual implicated in such action and/or to cancel, terminate, extend, modify, or suspend the Contest, and select the winner(s) from all eligible entries received. If such cancellation, termination, modification, or suspension occurs, notification will be posted on the Site. Company reserves the right to move entrants from the Contests they have entered to substantially similar Contests in certain situations determined by Company in its sole discretion; and
(H) EXCEPT AS OTHERWISE EXPRESSLY STATED BY COMPANY, ANY CONTEST BENEFIT IS AWARDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR GUARANTEE FROM COMPANY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
21.2 We reserve the right to modify, terminate, or suspend the availability of Contests and to correct errors or inconsistencies in Contest-related materials. We may disqualify any individual who tampers with any Contest or Contest-related process. CAUTION: ANY ATTEMPT BY AN ENTRANT OR ANY OTHER INDIVIDUAL TO DELIBERATELY DAMAGE THE SITE OR UNDERMINE THE LEGITIMATE OPERATION OF ANY CONTEST IS A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, COMPANY RESERVES THE RIGHT TO SEEK DAMAGES AND OTHER REMEDIES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW. You further acknowledge that the forfeiture and/or return of any prize shall in no way prevent Company from pursuing criminal or civil proceedings in connection with such conduct.