TERMS AND CONDITIONS FOR ULTIMATE SOURCE COACHES
By accessing, viewing, purchasing, being enrolled in, or otherwise using this course, its community spaces, and any associated content, materials, videos, recordings, live sessions, or resources (collectively, the "Course Materials"), you acknowledge that you have read, understood, and agree to be legally bound by our Terms and Conditions set out below.
If you do not agree to these Terms and Conditions in full, you must not access, use, view, participate in, or continue using this course or any Course Materials.
Your continued access to or use of this course constitutes your express and affirmative acceptance of these Terms and Conditions set out below.
IMPORTANT: PLEASE READ THE FOLLOWING TERMS OF SERVICE (INCLUDING ANY TERMS INCORPORATED HEREIN BY REFERENCE, THE "TERMS" OR "TERMS OF SERVICE") CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT USE THE SERVICE (AS DEFINED BELOW) OR ANY OF THE SERVICES, CONTENT, FEATURES OR FUNCTIONALITY AVAILABLE THROUGH IT. BY ACCESSING OR USING THE SERVICE OR ANY OF THE AVAILABLE SERVICES, CONTENT, FEATURES OR FUNCTIONALITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO CONSENT TO THESE TERMS IN THEIR ENTIRETY, THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT AND AGREE TO ALL OF THESE TERMS. PLEASE PRINT AND KEEP A PAPER COPY AND/OR RETAIN AN ELECTRONIC COPY OF THESE TERMS FOR YOUR RECORDS.
Welcome to The Ultimate Source, a community dedicated to abundant life and resilience training. The TUS website and services offered by TUS, including all websites, content, courses, materials, platforms and other interactive properties through which such services are delivered (collectively, the "Service") are owned, operated and distributed by and on behalf of Chasing Destiny Inc, a Texas Corporation ("The Ultimate Source," "TUS," "we," "us," or "our"). By accessing any part of the service, you are agreeing to the Terms, even if you access or view the Service from a third-party website or as otherwise made available through a third-party's online service. If you do not agree to any of the Terms, you should not use the Service. These Terms of Service apply to all users, including both users who are simply viewing content available via the Service and users who have registered as members of TUS.
For purposes of these Terms, all references to "coaches" and "participants" herein refer to those respective roles as defined by the Service. All users of the Service may be referred to herein as "you".
We may, at our sole discretion, modify these Terms at any time by posting a new version of these Terms on our website and updating the "Last Updated" date at the top of the page, provided that we will provide you with at least thirty (30) days' prior written notice of any material changes. Notice will be provided via email to the address associated with your account or by prominent posting on the Service. By continuing to access or use the Service after such notice period, you agree to such modifications. If you do not agree to the modifications, you must cease using the Service. We reserve the right to refuse to provide the Service to any person for any lawful reason and/or to discontinue the Service in whole or in part at any time, with or without prior notice, except that if we discontinue paid Services for which you have prepaid, we will provide a pro-rata refund for any unused portion. You agree that by registering, accessing, or using the Service, you are agreeing to the Terms as a legally binding contract with us. If you do not agree to these Terms, do not register for, access, or otherwise use the Service.
1. Accounts, Passwords, and Security
If the Service requires you to open or register an account, you must complete the registration process by providing us with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to us which is untrue, inaccurate, not current or incomplete, we reserve the right to terminate your access and use of the Service. As part of the registration process, you may be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL
ACTIVITIES AND CONDUCT THAT ARE CONDUCTED THROUGH YOUR ACCOUNT THAT RESULT FROM YOUR FAILURE TO MAINTAIN THE CONFIDENTIALITY OF YOUR ACCOUNT CREDENTIALS. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. Neither we nor our licensors will be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by us, our licensors or another party due to someone else using your account or password.
2. Copyright, License and User Submissions
As between you and TUS, TUS is the sole and exclusive owner of the Service and all intellectual property rights therein. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE SERVICE OR ANY CONTENT THEREIN, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE.
You may print and download portions of material from the different areas of the Service solely for your own non-commercial use, provided that you do not change or delete any copyright or proprietary notices from the materials, and not to share any material that you paid for with anyone else. Any other use of the Service not permitted by these Terms is strictly prohibited. Content submitted by users for inclusion on the Service, feedback about the Service, and any information submitted on message boards or other public areas of the Service) are referred to in these Terms as "User Submissions." Whether or not any User Submission is published, it will be subject to these Terms. TUS does not guarantee any confidentiality with respect to a User Submission, regardless of whether it is published. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to your User Submissions (and all content included therein), including the right to authorize TUS to use the User Submissions in the manner contemplated by the Service and these Terms. By submitting or posting User Submissions on or through the Service, you grant us a worldwide, non-exclusive, sublicensable, transferrable, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute the User Submissions solely to the extent necessary to provide and improve the Service and for marketing purposes directly related to the Service. This includes making User Submissions available to other users of the Service and to service providers who assist us in operating the Service. You also waive any rights of privacy, publicity, or other rights of a similar nature applicable to all these uses, to the extent permissible under applicable law. You also agree to all such uses of your content with no compensation paid to you.
We neither endorse nor assume any liability for the contents of any User Submission. We generally do not pre-screen, monitor, or edit User Submissions. However, we and our agents have the right at our sole discretion to remove any User Submission or other content that, in our judgment, does not comply with these Terms and any other rules of user conduct for the Service, or is otherwise harmful, objectionable, offensive, or inaccurate. We are not responsible for any failure or delay in removing any such User Submission or other content. You hereby consent to such removal and waive any claim against us arising out of such removal of any User Submission, whether it is your own or another user's.
3. If you see something That Infringes Copyright
We take claims of copyright infringement seriously. It is our policy to disable and/or terminate the accounts of users who are repeat infringers. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any content accessible on the Service infringes your copyright, you may request removal of such content (or access thereto) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability
Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), your written notice of alleged copyright infringement must include substantially the following:
your physical or electronic signature;
identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;
identification of the content you believe to be infringing in a sufficiently precise manner to allow us to locate that content;
adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
a statement that you have a good faith belief that use of the copyrighted
material is not authorized by the copyright owner, its agent or the law;
a statement that the information in your written notice is accurate; and
a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent to receive DMCA notices is:
Michael Lee
PO Box 1091
Mt Vernon, Tx 75457
Phone: (949) 678-9680
Email: [email protected]
*NOTE: This contact information is for inquiries regarding potential copyright infringement only. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA notice may not be effective. Please be aware that if you knowingly materially misrepresent that content on the Service is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
4. Rules for Use of Service
When you sign up for the Service, you agree to the following terms rules:
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not use the Service.
You must be a human to open an account. Accounts registered by "bots" or other automated methods are not permitted. You must provide and maintain true, accurate, current and complete information about yourself on your account. You will use the Service only for lawful purposes and agree not to use the Service in any way that will infringe upon the use or rights of any third party. Your use of the Service is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the Service. You will not upload any copyrighted, trademarked, or proprietary materials on the Service without the express permission of the owner.
You understand that courses available through the Service ("Courses") are available to be viewed and accessed by any other user who has purchased such Courses. You agree that you will not engage in any behavior that constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling.
You will not upload, share, post, distribute or otherwise partake in any behavior that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), irrelevant to the Course, disruptive to other participants, or otherwise violates our rules or policies. You will not engage or participate in any behavior that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability. You will not share software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party. You will not impersonate any person or entity, including any of our employees, coaches or other representatives. You will not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all parts of the Service may be available to you or other authorized users of the Service. You shall not interfere with anyone else's use and enjoyment of the Service. Users who violate systems or network security may incur criminal or civil liability. You will not access, tamper with, or use non-public areas of the platform (including content storage), TUS's computer systems, or the technical delivery systems of TUS's service providers. You will not access or search or attempt to access or search our platform by any means (automated or otherwise) other than through our currently available search functionalities that are provided via our website, mobile apps, or API (and only
50 pursuant to those API terms and conditions). You may not scrape, spider, use a robot, or use other automated means of any kind to access the Service.
You will accept all of the terms and conditions, if any, that are presented to you at the time you enroll in or access such Course. You may access Course content both during the Course and after the Course has ended, but you may access and use it for your personal, non-commercial use only.
5. Trademarks
You may use our trademarks only where we authorize you to do so. In each case, you must: only use the images of our trademarks that we make available to you, as detailed in any guidelines we may publish;
⚫immediately comply if we request that you discontinue use;
⚫ not use our trademarks in a misleading or disparaging way;
⚫ not use our trademarks in a way that implies that we endorse you; and
⚫ not use our trademarks in a way that violates applicable law or in connection with obscene, indecent, or unlawful topic or material.
6. Data Policy
We may collect demographic information about you, such as gender, race and ethnic origin. We usually collect and use this information on an anonymized basis. If you provide demographic information to TUS, you do so voluntarily and TUS will collect, store and use your demographic information in accordance with our Privacy Policy and applicable law. We may use this type of data to analyze trends and assist us in understanding demographic patterns related to our community and new and existing products, programs, or services; to administer, analyze, and improve the content and functionality of the Site and Services; for marketing; and to gather demographic information about our user base as a whole. We utilize unstructured machine learning technologies to understand user behaviors and to provide user-specific
recommendations and other personalization of the Site or Services experience. By using the Service, you consent to our collection and use of personal data as outlined therein.
7. Fees; Refunds
You agree to pay all applicable fees for Courses ("Enrollment Fees"), as set forth on the checkout page for the Service or on a Statement of Work, as applicable. If you are paying your Enrollment Fees in installments, your payment method will be automatically charged on the cadence specified at checkout. All Enrollment Fees are payable in the currency specified at the time of purchase. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on Chasing Destiny's net income. You hereby authorize Chasing Destiny/TUS to bill your payment instrument upon confirmation of a purchase, and you further agree to pay any charges so incurred. We reserve the right, at any time, to change any fees or charges for using any services provided on the Service, provided that such changes will not apply to fees or charges paid or free services used prior to the time of the change. We reserve the right to change the timing of our billing, in particular, as indicated below, if your payment method has not successfully settled.
All sales are final except as provided in this Section 7. We reserve the right to terminate your access to and participation in a Course at any time for cause (including material violation of these Terms or disruptive behavior that interferes with other users' experience), after which we may, in our sole discretion, issue you a pro-rata refund based on the portion of the Course not yet delivered. If we terminate without cause, we will issue you a full refund for such Course. Refunds will be issued to your original payment method within thirty (30) days of approval. You may request a refund within one hundred twenty (120) days from the date of purchase by contacting us at [email protected]. Refund requests will be evaluated on a
case-by-case basis in accordance with Section 7. These refund restrictions will be enforced to the extent permitted by applicable law. In cases where a transaction is not eligible for a cash refund, the refund will be granted using credits to the Service, provided it otherwise meets our 120-day refund policy.
8. Disclaimers
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE CHASING DESTINY, INC/TUS AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "TUS PARTIES") FROM ANY CLAIMS OR DAMAGES OF ANY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, RELATING TO ANY DISPUTE RELATING TO THE COURSES OR ANY TRANSACTION OR ATTEMPTED TRANSACTION WITH ANOTHER USER OF THE SERVICE, BUT EXCLUDING CLAIMS ARISING FROM TUS'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR VIOLATION OF APPLICABLE LAW.
YOU AGREE AND UNDERSTAND AND INTEND THAT THIS ASSUMPTION OF RISK AND RELEASE IS BINDING UPON YOU AND YOUR HEIRS, EXECUTORS, EXECUTORS, AGENTS, ADMINISTRATORS AND ASSIGNS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ALL MATERIALS INCLUDED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICE AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY COURSE THAT YOU ATTEND VIA THE SERVICE, OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SERVICE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THE COURSES AND ANY OTHER CONTENT, MATERIALS, AND INFORMATION MADE AVAILABLE THROUGH THE COURSES AND/OR THE SERVICE (COLLECTIVELY, THE "MATERIALS") ARE FOR GENERAL EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THE MATERIALS DO NOT CONSTITUTE AND SHOULD NOT BE CONSTRUED AS MEDICAL, PSYCHOLOGICAL, MENTAL HEALTH, FITNESS, BUSINESS, LEGAL, FINANCIAL, TAX, INVESTMENT, OR ANY OTHER FORM OF PROFESSIONAL ADVICE. YOU MAY NOT RELY ON ANY MATERIALS AS A SUBSTITUTE FOR CONSULTATION WITH QUALIFIED PROFESSIONALS IN THE RELEVANT FIELD. FURTHER, TUS MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING ANY RESULTS, OUTCOMES, OR BENEFITS THAT MAY BE ACHIEVED FROM USING OR IMPLEMENTING ANY OF THE INFORMATION CONTAINED IN THE MATERIALS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (i) YOU WILL NOT RELY ON ANY MATERIALS WHEN MAKING DECISIONS THAT COULD AFFECT YOUR HEALTH, SAFETY, OR FINANCES; AND (ii) YOUR USE OF ANY INFORMATION YOU OBTAINED THROUGH THE MATERIALS IS AT YOUR SOLE RISK AND DISCRETION.
YOU HEREBY VOLUNTARILY AND KNOWINGLY ASSUME ALL RISKS ASSOCIATED WITH
ANY ACTIONS YOU TAKE OR FAIL TO TAKE THAT ARE INFLUENCED, INSPIRED BY, OR THAT YOU ATTRIBUTE TO THE MATERIALS, INCLUDING, WITHOUT LIMITATION, PHYSICAL INJURY, FINANCIAL LOSS, CREATIVE FAILURE, OR ANY OTHER LOSSES OR DAMAGES. TUS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INJURIES, LOSSES, DAMAGES, OR ADVERSE CONSEQUENCES THAT OCCUR FROM YOUR USE OF ANY MATERIALS. TUS IS NOT RESPONSIBLE FOR HOW YOU CHOOSE TO INTERPRET, IMPLEMENT, OR ACT UPON THE MATERIALS.
THE MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY UPDATES OR MAINTENANCE.
THE MATERIALS MAY CONTAIN OUTDATED SCIENCE, REFERENCES, PRACTICES, OR INFORMATION THAT HAS BEEN SUPERSEDED BY CURRENT BEST PRACTICES OR RESEARCH. TUS MAKES NO COMMITMENT TO UPDATE OR MAINTAIN THE MATERIALS AND BEARS NO LIABILITY FOR ANY ACTIONS TAKEN BASED ON INFORMATION IN THE MATERIALS THAT IS OUTDATED, OBSOLETE, OR SUPERSEDED.
You understand and agree that temporary interruptions of the Service may occur as normal events. You further understand and agree that we have no control over third
party networks you may access in the course of the use of the Service, and therefore, delays and disruption of other network transmissions are completely beyond our control. While we work to protect the security of your account and related information, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures.
THE USE OF THE SERVICE OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability
IN NO EVENT SHALL WE OR ANY OTHER TUS PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SERVICE, EXCEPT FOR DAMAGES ARISING FROM OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR AS OTHERWISE PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICE OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
FURTHER, NEITHER CHASING DESTINY, NOR ANY OTHER TUS PARTY, SHALL BE LIABLE IN ANY WAY FOR ANY COURSE OR OTHER THIRD-PARTY GOODS AND SERVICES OFFERED THROUGH THE SERVICE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS WITH OTHER USERS OF THE SERVICE. IN NO EVENT SHALL THE TOTAL LIABILITY OF TUS OR ANY OTHER CHASING DESTINY, INC/TUS PARTY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (EXCEPT FOR LIABILITY ARISING FROM OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW) EXCEED THE GREATER OF: (I) THE AMOUNT PAID BY YOU, IF ANY, IN CONNECTION WITH USING THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY; OR (II) ONE HUNDRED US DOLLARS ($100).
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
To the extent that TUS may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty
and the extent of our liability will be the minimum permitted under such applicable law.
10. Indemnification
You agree to defend, indemnify, and hold TUS and the other Chasing Destiny's Parties harmless from and against all third-party demands, claims, actions, suits, investigations, liabilities, losses, damages, and expenses, including reasonable attorneys' fees and costs, that arise directly from (i) your material breach or violation of these Terms; (ii) your User Submissions, to the extent that such User Submission violates any applicable law or infringes or otherwise violates any intellectual property rights or other rights of any person, entity or estate; (iii) your grossly negligent acts or willful misconduct in connection with the Service; and (iv) your violation of any third party's rights, including but not limited to intellectual property rights, privacy rights, or publicity rights. TUS reserves the right, at its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will reasonably cooperate with TUS in asserting any available defenses. If TUS does not assume such defense, you may not settle any claim without TUS's prior written consent, which shall not be unreasonably withheld. Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Services and/or these Terms.
11. Arbaritration Agreement
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE
WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED. YOU AND TUS AGREE THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, OR FORMATION OF THESE TERMS OF USE OR YOUR USE OF THE SERVICE WILL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT ("Agreement to Arbitrate"). THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLY INTERPRETED AND INCLUDES ANY DISPUTE, CLAIM, OR CONTROVERSY BETWEEN YOU AND TUS REGARDING ANY ASPECT OF YOUR RELATIONSHIP WITH TUS/CHASING DESTINY'S OR ANY CONDUCT OR FAILURE TO ACT ON TUS/CHASING DESTINY'S PART, INCLUDING CLAIMS BASED ON BREACH OF CONTRACT, TORT (FOR EXAMPLE, A NEGLIGENCE CLAIM), VIOLATION OF LAW, OR ANY CLAIMS BASED ON ANY OTHER THEORY, AND INCLUDING THOSE BASED ON EVENTS THAT OCCURRED PRIOR TO THE DATE OF THIS AGREEMENT, WITH THE FOLLOWING EXCEPTIONS:
• You may assert claims in your local small claims court if its rules permit it;
• Any claim regarding the validity, protection or enforcement of a party's intellectual
property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and
10
• In the event this agreement to arbitrate is for any reason held to be unenforceable,
any dispute or claim (except for small-claims court actions) may be commenced only in a federal or state court located in Franklin County, Texas, and you and TUS both irrevocably and unconditionally consent to the exclusive jurisdiction of and venue in those courts for such purposes. You and TUS both also
irrevocably and unconditionally consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection, or enforcement of a party's intellectual property rights (excluding its privacy or publicity rights). You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue in such courts.
This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND TUS AGREE OTHERWISE, THE ARBITRATOR MAY
NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
If this specific provision is found to be unenforceable, then only that specific provision will be null and void, and the remainder of Section 11 (Arbitration Agreement) shall remain in full force and effect to the maximum extent permitted by law.
The arbitration will be administered by the American Arbitration Association ("AAA") and will be governed by AAA's Consumer Arbitration Rules or Commercial Arbitration Rules (as applicable based on the nature of the dispute) ("AAA Rules"), as modified by this Agreement. The AAA Rules may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, and must enforce the same limitations stated in this Agreement as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or Chasing Destiny requests one. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
A party who intends to arbitrate ("Claimant”) must first send to the other party ("Respondent") a written notice, entitled "Demand for Arbitration" ("Demand"). The Demand must: (1) briefly explain the dispute; (2) provide the Claimant's name and address, the address of the Claimant's representative (if the Claimant has one), and the Respondent's name and address (for TUS, see below); (3) specify the amount of money in dispute, if applicable; (4) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (5) include a statement of what the
Claimant wants. If you are the Claimant, then the Demand must be sent to Flow Alliance
and addressed to:
Chasing Destiny, Inc, Attn: Legal Department, PO Box 1091, Mt Vernon, Tx 75457 with a
copy via email to: [email protected]
The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it and the then current filing fee required by the AAA. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. Any request for payment of filing, administration, and arbitrator fees by TUS and Chasing Destiny, Inc should be submitted by mail to the AAA along with your Demand and we will make arrangements to pay all such necessary fees directly to the AAA. In the event that the arbitrator determines that the claim(s) you assert in the arbitration are frivolous or were brought in bad faith, you agree to reimburse us for reasonable fees associated with the arbitration paid by TUS on your behalf that you otherwise would be obligated to pay under the AAA Rules.
Any arbitration will be confidential. Neither you, Chasing Destiny/TUS, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by applicable law, for purposes of enforcing or challenging the arbitration award, or as necessary to comply with legal or regulatory obligations. Notwithstanding the foregoing, you may disclose information about the arbitration to your attorneys, accountants, tax advisors, and immediate family members who agree to maintain confidentiality.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION,
YOU AND FLOW ALLIANCE EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
You may opt out of this Agreement to Arbitrate by providing written notice to TUS/Chasing Destiny via email to [email protected], no later than 30 days from the date that you first accept these Terms of Service.
Your opt-out notice will be deemed effective upon TUS's receipt and written acknowledgment, which acknowledgment shall be provided within 10 business days of receipt. Your written notification to TUS must include your name, mailing address, e-mail address, phone number, and a clear statement that you do not wish to resolve disputes with TUS through arbitration. If you opt out of the Agreement to Arbitrate, all other provisions of these Terms of Service will continue to apply.
12. Promotional Communications
If you do not want us to use your contact information to promote our services, you can opt out by sending an email to [email protected] stating your request. If you have received a promotional email from [email protected], you can also opt out of receiving future promotional emails from us by following the unsubscribe instructions contained in such email.
13. Miscellaneous
The following provisions shall survive the expiration or termination of these Terms: Sections 9 (Warranty Disclaimer), 10 (Indemnification), 11 (Arbitration Agreement), 13 (Miscellaneous), and any other provisions which by their nature should survive termination.
Without limiting the terms of the Agreement to Arbitrate, these Terms and any dispute or claim arising out of or related to these Terms, their subject matter, or their formation (in each case, including non-contractual disputes or claims) that proceeds in a court shall be governed by and construed in accordance with the laws of the State of Texas, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Texas.
These Terms, including our Privacy Policy, constitute the entire agreement between you and TUS concerning the Service. If any provision of any such document is deemed invalid, illegal, or unenforceable by a court of competent jurisdiction or arbitrator pursuant to any claim submitted under the Agreement to Arbitrate, the invalidity of such provision shall not affect the validity of the remaining provisions thereof, which shall remain in full force and effect, provided that the fundamental purpose and intent of these Terms can still be achieved. If the fundamental purpose cannot be achieved, the parties agree to negotiate in good faith to replace the invalid provision with a valid provision that achieves the same economic effect. TUS's failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms. TUS may assign its rights and duties under these Terms to any party at any time without notice to you. You may not assign these Terms without TUS's prior written consent.
Most communication between TUS and you will be sent and received electronically. You agree that all electronic communication between TUS and you shall satisfy any legal requirements that such communications be in writing.
14. Notice to California Residents
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952- 5210.
If you have questions, concerns, or feedback about the Service, you may contact us at [email protected].