Last Modified: 06/26/2022
These Terms of Service and any terms expressly incorporated herein (these “Terms”) apply to any access to, or use of, any services made available by TIME2TALK LLC, a Delaware limited liability company (“Time2Talk”, “we”, “us” or “our”) using our website located at www.time2talk.app our mobile application, our Platform, and any other related services provided by us (collectively, the “Services”). The terms “you”, “your”, and “yourself” refer to the individual user of the Services. Throughout these Terms, you and Time2Talk may each be referred to as a “Party” or collectively, the “Parties”.
IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT IT, AND DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICES. DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.
1. Modification to These Terms.
We may modify these Terms by providing notice of such changes, such as by sending you an email, providing notice through the Services, or updating the “Last Updated” date at the top of these Terms. By clicking on an “I Agree” button or checkbox presented with the modified Terms, or by continuing to access or use of the Services, you confirm your agreement to the modified Terms. If you do not agree to any modification to these Terms, you must stop using the Services. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. If you have any question regarding the use of the Services, please contact us in accordance with Section 15.
2.1 General. We have developed the Services to allow aspiring Spanish speakers (the “Students”) to connect with native Spanish speakers (the “Coaches”) to learn or practice Spanish through Time2Talk’s voice call, messaging and learning platform (the “Platform”). We may, in our sole discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, all or any portion of any the Services. We may, at our discretion and without liability to you, with or without prior notice and at any time, temporarily suspend or permanently terminate your access to all or a portion of any the Services.
2.2 For Students. Our Services allow Students to connect by voice call, chat, or text with Coaches (who are independent contractors). Students can initiate sessions (a “Session”) by (a) clicking on the “call” button to connect with a Coach at random based on common interests and Coach rating, or (b) clicking on the “call” button next to an online Coach in the Student’s “Favorite Coaches List”. Our Platform also provides a text/chat feature that allows students to text/chat with a Coach to inquire about spelling of a certain word or phrase.
2.3 For Coaches. Our Services allow native Spanish speakers throughout Latin America to submit an application (an “Application”) to become a Coach accessible on Time2Talk Platform. We will accept Coaches onto our Platform, in our sole discretion, based on a variety of factors including, but not limited to, communication skills, personality, availability, and teaching/coaching experience. To apply as a Coach you must be at least 18 years old. As a Coach, you are eligible to earn Coaching Fees (as defined in Section 4.2) for conducting Sessions with Students.
2.4 Service Availability. We aim to provide our Services to Students on demand, however, Coach availability varies and accordingly, our Services are provided “as available.” Additionally, at this time, we do not provide Services between 12:00 PM – 5:00 AM Eastern Time.
2.5 Account Restrictions. By using the Services, you state that you are above the age of 13 years old. No one under the age of 13 years old is allowed to create an Account (as defined below) or use the Services. By using the Services, you will comply with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
2.6 Geographic Restrictions. You may not use the Services if you (a) are organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (i.e., an embargo), (b) are identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, (c) are otherwise the target of U.S. sanctions, or (d) otherwise fail at any time to maintain material compliance with applicable law in any jurisdiction in which you either access the Services or reside.
3.1 Account Activation. In order to use most aspects of the Services, as either a Student or Coach, you must register for and maintain an active personal user Services account (an “Account“). You must be at least 13 years of age to obtain an Account. You will: (a) create a unique password; (b) provide complete and accurate information; (c) promptly update any information you have provided to us so that the information is complete and accurate at all times; (d) maintain the security of your Account by protecting your password from unauthorized access or use; (e) promptly notify us if you discover or suspect any unauthorized access or use of your Account or any security breaches related to your Account; and (f) be responsible for all activities that occur under your Account, and accept all risks of any authorized or unauthorized access to your Account.
3.2 Student Accounts. Student Accounts will provide Students with a record of Sessions, Coaches, and of Student Fees incurred.
3.3 Coach Account. Coach Accounts will provide Coaches with a record of Sessions, Students, and Coaching Fees earned.
3.4 Account Responsibility. You are responsible for keeping your Account and your password secure. You agree to notify us immediately of any unauthorized access to or use of your Account, username, or password or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account so as not to provide third parties with your Account credentials. We will not be liable for any loss that you incur as a result of someone else accessing and using your Account, either with or without your knowledge.
3.5 Number of Accounts. Unless you are a school account, you agree that you will not create more than one Account or create an Account for anyone other than yourself.
3.6 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
3.7 School Accounts. If you are a school administrator or teacher and are entering this agreement on behalf of a school or school district, you agree to these additional terms:
a. By agreeing to these Terms, you agree you are authorized to grant Time2Talk access to and grant the right to collect student Personal Data for the purposes of providing the Services to students. For school accounts in the U.S., Time2Talk will collect and process student information as a school official with a legitimate educational interest pursuant to the Family Educational Rights and Privacy Act (“FERPA”), 34 CFR Part 99,31(a)(1). As between the parties, the school or the student owns and controls student information. Time2Talk does not own or control, or license such student information, except as described in the Terms of this Section.
b. If you provide students an access code to create an account, you represent and warrant that you have provided appropriate disclosures to the school and to parents regarding our use of student personal information. Both parties agree to uphold their obligations under FERPA. You agree to comply with these Terms and all laws and regulations governing the protection of personal information, including children’s information, and to notify us of any changes in your specific jurisdiction.
c. By directing a student to create a School Associated Account, you agree that Time2Talk may use student personal information solely for the following purposes: (i) delivering services, (ii) improving and developing our Services; (iii) determining the level of funding to provide schools based on our fundraising model; and (iv) to create aggregated or other de-identified studies. Time2Talk will not otherwise use information from a student account, sell or data mine student personal information, or use it to engage in targeted advertising.
Unless otherwise specified by the school, Time2Talk will retain personal information only as long as is needed to deliver school-based services to each student, but no longer than five (5) years. You may request that we delete student personal information in our possession at any time or return it by providing such a request in writing. We will respond to these requests as soon as possible, but in most instances within 45 days.
4. Fees and Payment.
4.1 Student Fees. You understand that use of the Services as a Student may result in charges to you for the services you receive (the “Student Fees“). We will receive and/or enable your payment of the applicable Student Fees for services obtained through your use of the Services. The Student Fees will be inclusive of applicable taxes where required by law. The Student Fees applicable to you are set forth when you sign up for your Account, or when you elect a Service, and may be amended by us, from time to time, in our sole discretion and with advance notice to you. The Student Fees comprise of a connection fee for initiating a Session (the “Connection Fee”) and a time-based fee determined by our current per minute rate (the “Minute Fee”). Where a Student initiates a Session that never connects or is cutoff in less than two minutes, at no fault of the Student, no Student Fees shall be assessed. Where a Student initiates a Session that is cutoff between two minutes and five minutes, at no fault of the Student, the Student will incur a Minute Fee, but any Connection Fee will be waived. Where a call exceeds five minutes, the Student will incur both a Connection Fee and a Minute Fee, irrespective of how or why the call eventually terminates.
All Student Fees and payments will be enabled by us using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that we may use a secondary payment method in your Account, if available. Student Fees paid by you are final and non-refundable, unless otherwise determined by us.
4.2 Coaching Fees. Coaches will earn Coaching Fees (the “Coaching Fees”) for conducting Sessions with Students. Coaching Fees are based on how many minutes a Coach logs in Sessions with Students, and may range based on a variety of factors, determined in Time2Talk’s sole discretion, including availability, reviews, experience.
Time2Talk shall not withhold, nor be held liable for, Federal or state payroll taxes, including but not limited to Federal Withholding Tax, Federal Insurance Contribution Act (FICA), Federal Unemployment Tax Act (FUTA), any state unemployment or similar taxes of any nature. If required by applicable law, regulation or rule, Time2Talk shall report all compensation paid to the Coach under this Agreement to the Internal Revenue Service (IRS) and any applicable state and local taxing authorities at the end of each calendar year.
All payments of Coaching Fees will be enabled by us using the preferred payment method designated in your Account, after which you will receive a confirmation of payment by email. Time2Talk shall pay Coaches in accordance with its standard processes and timing that it utilizes for the payment of all of its independent contractors, which is typically once per calendar month, for the Coaching Fees earned during the previous calendar month. Time2Talk reserves the sole and exclusive right to reasonably amend the schedule according to which it pays Coaches.
As between you and us, we reserve the right to establish, remove and/or revise Student Fees or Coaching Fees for any or all services obtained through the use of the Services at any time in our sole discretion. We will use reasonable efforts to inform you of the changes that may apply, provided that you will be responsible for any changes incurred under your Account regardless of your awareness of such changes. We may from time to time provide certain users (Students and Coaches) with promotional offers and discounts that may result in different amounts charged or earned for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Student Fees or Coaching Fees applied to you.
5. Use Restrictions. All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the “Services Content“), are the proprietary property of Time2Talk or our licensors. You may use the Services Content, solely as authorized by us in connection with your use of the Services for so long as we permit you to continue to access the Services. You shall not directly or indirectly: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services Content; or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services; (c) access all or any part of the Services and Services Content in order to build a product or service which competes with the Services and/or the Services Content; (d) provide any other person with access to or use of your Account; (e) interfere with or disrupt the Services, networks, or servers connected to the systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Services; or (f) use the Services or Services Content in violation of law applicable to you. We have no obligation to monitor your use of the Services; however, we reserve the right, at all times, to monitor such use, and to review, retain, and disclose any information as necessary to ensure compliance with the terms of these Terms, and to satisfy or cooperate with any applicable law, regulation, legal process, or governmental request.
6. Coach Acknowledgements and Obligations.
6.1 Independent Contractor. The performance by the Coach of its duties and obligations under these Terms shall be that of an independent contractor, and nothing herein shall create or imply an agency or employment relationship between Time2Talk and the Coach or between Students and Coaches. The Coach shall neither take nor allow any action in violation of this provision; nor shall the Coach have the right to make any contracts or commitments for or on behalf of Time2Talk or its Students. These Terms shall not be deemed to constitute a joint venture or partnership between the Parties. The Coach shall have the ability to and shall exercise the Coach’s own independent, professional judgment as to the specific means and manner of the performance of the work contemplated hereunder. Time2Talk shall have the right to determine the objectives and results of the work to be achieved by the Coach. Time2Talk will not supervise the Coach, but will consult with the Coach, as needed, concerning the performance of specified Services for Students of Time2Talk.
6.2 Coach Professionalism. You represent and warrant that any information you provided to us in your Application is true and accurate. You agree to submit to an appropriate and comprehensive background check, at Time2Talk’s expense. You agree to perform the your obligations hereunder in a professional, timely, and workmanlike manner in accordance with the reasonable specifications, rules, and procedures set forth by Time2Talk, as the same may be communicated to the Coach and amended by Time2Talk, from time to time. The Coach will provide Time2Talk with reports (or complete surveys) related to the Coach’s performance of its obligations hereunder, and as may be updated from time to time, and as the Company may periodically request.
6.3 Termination. Either Time2Talk or the Coach may terminate the relationship contemplated in these Terms for any or no reason. In the event of such termination, Time2Talk’s sole responsibility to the Coach will be to pay the Coach for Coaching Fees earned up to the date of termination; provided, however, that where a Coach terminates its relationship with Time2Talk prior to completing scheduled Sessions with Students, Time2Talk reserves the right to withhold Coaching Fees earned in an amount equal to half the Student Fees set to be earned by Time2Talk for the departing Coach’s scheduled but incomplete Sessions.
6.4 Relationship with Students. The Coach acknowledges and agrees that all Students with whom the Coach interacts in the course of Services hereunder are Time2Talk’s Students, and the relationship with all Students is owned by Time2Talk. The Coach also acknowledges and agrees that Time2Talk may provide the Coach’s credentials to Students or prospective Students for the purpose of matching Students with Coaches.
(a) Confidential Information. The Coach agrees that, both during and after the Coach’s affiliation with Time2Talk, for any reason, the Coach will hold, in a fiduciary capacity for the benefit of Time2Talk, and shall not, without the prior written consent of Time2Talk, directly or indirectly use (for its own benefit or for the benefit of any other person or entity) or disclose, except as authorized by Time2Talk in connection with the Services, any Confidential Information, as defined hereinafter, that the Coach may have or acquire (whether or not developed or compiled by the Coach and whether or not the Coach has been authorized to have access to such Confidential Information) during the Coach’s affiliation with, or in connection with, its affiliation with Time2Talk. The Coach must protect and safeguard all Confidential Information it receives from Time2Talk or any Student from disclosure.
The term “Confidential Information” as used in these Terms shall mean and include any competitively sensitive personal or commercial information, including any personal information of any Student, and any business, financial, records, data or know-how relating to Time2Talk that is disclosed to the Coach by Time2Talk or any Student, or known by the Coach as a result of the Coach’s relationship with Time2Talk or any Student, and that is of importance to and kept in confidence by Time2Talk or any Student of Time2Talk and not within the public domain (whether constituting a trade secret or not). Confidential Information shall include, but is not limited to:
(i) Information about any Student or Students that is personal or demographic in nature, and that is either expressly designated or should reasonably be understood to be confidential in nature;
(ii) Information concerning Time2Talk, including cost information, profits, sales information, accounting and unpublished financial information, business plans, markets and marketing methods, customer lists and customer information, purchasing techniques, supplier lists and supplier information and advertising strategies;
(iii) Information concerning Time2Talk’s officers, employees, and independent contractors, including their salaries, strengths, weaknesses and skills; and
(iv) Any other information not generally known to the public which, if misused or disclosed, could reasonably be expected to adversely affect any Student or Time2Talk.
The term “Confidential Information” does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of Time2Talk or a Student to which such information pertains.
(b) Survival of Confidentiality Covenant. The covenant contained in this Section 6.5 shall survive the termination of the Coach’s affiliation with Time2Talk for any reason (i) as to Time2Talk, for a period of three (3) years, and (ii) as to any Student, indefinitely, for so long as any Confidential Information remains Confidential Information as defined herein. Without limiting the foregoing in any way, those items of Confidential Information which constitute a trade secret under applicable law, the Coach’s obligations of confidentiality and non-disclosure as set forth in this Section 6.5 shall continue to survive for the greatest extent permitted by applicable law. These rights of Time2Talk are in addition to those rights that Time2Talk has under the common law or applicable statutes of the protection of trade secrets.
(c) Permitted Disclosure. The Coach’s disclosure of Confidential Information shall be permitted only if pursuant to an order of a court of competent jurisdiction, provided that (i) promptly upon the Coach becoming aware that he may become subject to such an order, it shall provide written notification to Time2Talk, and (ii) provide full cooperation and assistance (at the expense of Time2Talk) in seeking a protective order or such other relief as is requested by Time2Talk to limit or prevent the disclosure of Confidential Information. The Coach agrees that any breach of the terms of this Section 6.5 shall be a material breach of these Terms.
(d) Return of Materials. The Coach acknowledges that all files, records, lists, files, information, designs, specifications, formulas, books, products, tools, equipment and other materials owned by, used by, or that have been provided to the Coach in connection with the Services (the “Materials”) shall, at all times, remain the property of Time2Talk, and that upon any termination of these Terms (or the conclusion of the Coach’s affiliation with Time2Talk) for any reason or upon demand by Time2Talk, the Coach will immediately provide to Time2Talk all Materials, including any and all copies thereof in the possession or control of the Coach’s and destroy all copies. Upon any termination or expiration of these Terms (or the conclusion of the Coach’s affiliation with Time2Talk) for any reason, the Coach further agrees to, at Time2Talk’s request, provide a written and signed declaration to Time2Talk confirming that all Materials have been returned to Time2Talk, that all copies have been destroyed, and that no Materials remain in the possession of the Coach, or any third party affiliated with the Coach.
6.6 Non-Solicitation of Students. The Coach covenants, acknowledges, and agrees that during the Coach’s affiliation with Time2Talk and for a period of one-year thereafter the Coach shall not solicit, induce, or attempt to induce, on its own behalf or on behalf of any other person or entity, any Students of Time2Talk to cease doing business with Time2Talk or to do business with any entity other than Time2Talk in relation to Spanish language education or Coaching.
8. Intellectual Property Rights.
8.1 Ownership of Services. We expressly and exclusively reserve for ourselves any and all registered and unregistered rights (whether or not registrable), granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) that are created, generated, acquired, or used connection with the Services. Nothing herein shall be deemed to grant any rights or licenses to our Intellectual Property Rights to you, except as is expressly required for you to use the Services (but not apart from your use thereof).
8.2 Feedback. We will own any feedback, suggestions, ideas, or other information or materials regarding us or the Services that you provide, whether by email, posting through the Services or otherwise (“Feedback”). You hereby assign to us all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.
8.3 User Content. You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium or manner, any text, information, data, materials, images, or other content you provide to us using the Services or submit or post to the Services and that is not Feedback owned by us (the “User Content”). You represent and warrant that: (a) you own the User Content or have the right to grant the rights and licenses in these Terms, and (b) the User Content and use by us of the User Content as licensed herein does not and will not violate, misappropriate or infringe on the rights of any third party. We may remove any User Content from the Services for any reason at our discretion.
9. Third-Party Content. The Services may contain linked to third party websites, advertisers, services, special offers, or other events or activities not owned by us (“Third-Party Content”). We do not control, endorse, or adopt any Third-Party Content and shall have no responsibility for ThirdParty Content, including without limitation material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk.
10. Student Release. THE STUDENT AGREES AND ACKNOWLEDGES THAT SERVICES WILL BE PROVIDED BY COACHES WHO ARE INDEPENDENT CONTRACTORS, AND ARE NOT EMPLOYEES OF THE COMPANY. AS SUCH, STUDENT WAIVES AND FOREVER RELEASES THE COMPANY FROM ANY CLAIMS OR DAMAGES WHICH MAY RESULT FROM ACTIONS OR EVENTS OUTSIDE THE SCOPE OF THESE TERMS, INCLUDING BUT NOT LIMITED TO INJURIES, EMOTIONAL DAMAGES, PHYSICAL HARM, AND ALL OTHER CONSEQUENTIAL, INCIDENTIAL, EXEMPLARY, INDIRECT AND SPECIAL DAMAGES, ALL OF WHICH ARE EXPRESSLY EXCLUDED UNDER THESE TERMS.
11. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, THE SERVICES CONTENT AND ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON OUR BEHALF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIMS, AND YOU WAIVE, ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE SERVICES CONTENT ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT YOUR DATA MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, VIRUSES OR OTHER HARMFUL MATERIALS, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES.
THE DISCLAIMER OF IMPLIED WARRANTIES CONTAINED HEREIN MAY NOT APPLY IF AND TO THE EXTENT IT IS PROHIBITED BY APPLICABLE LAW OF THE JURISDICTION IN WHICH YOU RESIDE.
12. Indemnification. You will defend, indemnify, and hold harmless us, our Affiliates, and their respective shareholders, members, directors, officers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, the Services; (b) any Feedback or User Content you provide; (c) your violation of these Terms; or (d) your violation of any applicable law or the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, we (or, at our discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether we wish to settle, and if so, on what terms.
13. Disclaimer of Damages. IN NO EVENT WILL WE, OUR AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, OR FINANCIAL BENEFIT) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF US, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF OURS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Limitation of Liability. IN NO EVENT WILL OUR LIABILITY, OUR AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON OUR BEHALF, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF OURS) EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO US OR BY US TO YOU UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
15. Contact Us. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: email@example.com
16.1 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. For all other proceedings, the federal and state courts located in Cuyahoga County, Ohio will have exclusive jurisdiction. You waive any objection to venue in any such courts.
16.2 Assignment. These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each party. You may not assign, subcontract, delegate or otherwise convey these Terms, or any of its rights and obligations hereunder. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, and delegate this agreement (these Terms) and its obligations hereunder at any time, in its sole discretion.
16.3 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provision in every other respect and the remaining provisions of these Terms will be unimpaired and these Terms will continue in full force and effect, unless the provisions held invalid, illegal, or unenforceable will substantially impair the benefits of the remaining provisions hereof.
16.4 Waiver. The failure of either party to insist upon strict performance or to seek remedy for breach of any term of these Terms, or to exercise any right, remedy or election herein or permitted by law or equity, will not constitute nor be construed as a waiver or relinquishment in the future of such term, condition, right, remedy, or election. Any consent, waiver, or approval by either party of any act or matter will not be effective unless made in writing and signed by an authorized representative of the consenting, waiving, or approving party.
16.5 Force Majeure. We will not be responsible or liable to you or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder (including the temporary unavailability or inaccessibility of the Services) where such failure is the result of Force Majeure. As defined herein, “Force Majeure” means any (a) acts of God, flood, fire, wind, storm, drought, earthquake, or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority; (f) collapse of building, breakdown of plant or machinery, fire, explosion, or accident; (g) any labor or trade dispute, materials or transport, strike, industrial action or lockout; (h) interruption or failure of utility service; or (i) or any other cause, whether similar or dissimilar to those enumerated, that is beyond our reasonable control and without our fault or negligence.
16.6 Survival. Termination of these Terms will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, Section 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, and 16.
16.7 Entire Agreement; Order of Precedence. These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.