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Terms and Conditions

Last updated: 2023-06-05

Last updated: 2022-01-19

TERMS AND CONDITIONS

These Terms and Conditions (this “Agreement”) concern the www.vorburst.com website (together with its pages and features, the “Site”) and mobile software application (together with its pages and features, the “App”), as well as those certain products and services provided on, through or in relation to the Site and/or the App. This Agreement is made and entered into by and between you and any person helping you visit, access, register with and/or use the Site and/or the App (collectively, “you” or “your”), on the one side, and Vorburst, LLC., a Delaware corporation (“Company”), on the other side. You and Company are sometimes referred to herein each as a “Party” and together as the “Parties”.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE OR THE APP BECAUSE IT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND COMPANY.

WHEN YOU CREATE, REGISTER OR LOG INTO AN ACCOUNT THROUGH THE SITE OR THE APP YOU ARE AUTOMATICALLY ACCEPTING AND AGREEING TO THE MOST-RECENT VERSION OF THIS AGREEMENT.

SIMILARLY, BY VISITING, ACCESSING, REGISTERING WITH OR USING THE SITE OR THE APP YOU ARE AUTOMATICALLY ACCEPTING AND AGREEING TO THE MOST-RECENT VERSION OF THIS AGREEMENT, AND YOUR CONTINUING VISIT, ACCESS, REGISTRATION WITH OR USE OF THE SITE OR THE APP REAFFIRMS YOUR ACCEPTANCE AND AGREEMENT IN EACH INSTANCE.

IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT IN ITS ENTIRETY, THEN YOU ARE STRICTLY PROHIBITED FROM VISITING, ACCESSING, REGISTERING WITH AND/OR USING THE SITE OR THE APP.

COMPANY MAY SUPPLEMENT, AMEND OR OTHERWISE MODIFY THIS AGREEMENT AT ANY TIME. SUCH MODIFICATIONS WILL BE POSTED ON THIS OR A SIMILAR PAGE OF THE SITE OR THE APP, AS APPLICABLE, E-MAILED TO THE E-MAIL ADDRESS ASSOCIATED WITH YOUR USER ACCOUNT (AS DEFINED BELOW) OR POSTED TO YOUR USER ACCOUNT, AND SHALL BE DEEMED EFFECTIVE AS OF THEIR STATED EFFECTIVE OR MODIFICATION DATE. IT IS YOUR RESPONSIBILITY TO CAREFULLY REVIEW THIS AGREEMENT AND YOUR USER ACCOUNT EACH TIME YOU VISIT, ACCESS, REGISTER WITH OR USE THE SITE OR THE APP.

1. General

Eligibility
The Site and the App are offered only to users eighteen (18) years of age or older, or otherwise the age of majority in their respective jurisdictions, and who have accepted this Agreement. By visiting, accessing, registering with or using the Site or the App, or by purchasing or using any products or services through the Site or the App, you represent and warrant to the Company that you meet these eligibility requirements. You agree to comply with all applicable laws for visiting, accessing, registering with and using the Site and the App and for purchasing any products or services through the Site or the App, and you may only use them for lawful purposes.

Privacy
Company respects your privacy and the use and protection of your personal information. Company’s policies concerning the collection and use of your personal information in connection with the Site and the App are set forth in Company’s Privacy Policy, which you should carefully review each time you visit, access or use the Site or the App.

Your Devices
Certain portions of the Site and/or the App may be configured for, and Company may offer the Site and the App through, computers, tablets, smart phones and/or other electronic devices (“Device(s)”), and this Agreement shall apply with equal force and measure to your visit, access, registration with and use of the Site and the App through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly access and use the Site and/or the App. Company does not guarantee that the Site, the App or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network. If you visit, access or use the Site or the App through a particular Device, then you hereby acknowledge and agree that information about your use of the Site or the App through that Device or its carrier or network (such as, by way of example only, the identity of your Device or its carrier or network) may be communicated to Company and/or certain third parties. All or any part of the voice, message, and data fees, rates, charges and taxes of your Device’s carrier or network, or another third party, may apply to your visit, access, registration with and/or use of the Site and/or the App. Company is not responsible for, and you further accept full responsibility for, all Device, carrier and network fees, rates, charges and taxes which may apply, if any.

Ownership
The Site, the App, and all elements and derivatives thereof (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation and expressions), as well as all copyrights, trademarks, trade secrets and other intellectual properties of the foregoing, are owned, licensed or permissibly used by Company. In no event shall you have or retain any rights, titles or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of Company’s or its licensors’ respective rights and remedies under applicable law.

2. Rights, Permissions, and Consents

License to the Site
Subject to the terms and conditions of this Agreement, and any associated payment and registration obligations as imposed by or with the prior consent of Company, Company grants you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and view the various publicly displayed pages of the Site, and to view the information and content found thereon. If you have a User Account in good standing, then said license shall extend to any subscription-only and/or registration-only pages of the Site. Your unauthorized use of the Site or the App, or any breach by you of this Agreement, automatically terminates this license.

License of the App
Subject to the terms and conditions of this Agreement, and any associated payment and registration obligations as imposed by or with the prior consent of Company, if you download a genuine copy of the App to your Device, and if you further acknowledge your acceptance of and agreement to this Agreement, as well as those additional terms, conditions and policies referenced herein, as Company may require from time-to-time, then Company grants you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and use the App on said Device for the purpose of using the App as Company intends for end users of the App. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the App; and if you sell or otherwise transfer to a third party a Device on which the App is installed, then you must remove the App from such Device before doing so. If you have a User Account in good standing, then said license shall extend to any subscription-only and/or registration-only sections of the App. Your unauthorized use of the Site or the App, or any breach by you of this Agreement, automatically terminates this license.

License of User Materials
All names, photographs, information, communications and any other content that you submit to or publish on or through the Site or the App, or that you submit to or publish on an online social media account (e.g., Facebook, Twitter, Instagram) that you own and link or otherwise associate with the Site, the App or your User Account, including any medical information you provide via the Site or the App, if any and as applicable, is hereinafter defined as the “User Materials”. You hereby grant Company an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual and universe-wide license for Company to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium or form, whether now known or hereinafter devised, as Company sees fit in its sole discretion. As further described in the Site’s and the App’s Privacy Policy, Company may dispose of or delete any such personal information or non-personal information at any time, except as set forth in any other agreement or document executed by Company or as required by law.

Reservation of Rights
Nothing in this Agreement shall restrict or limit Company’s rights, titles or interests in or to the Site, the App, the User Materials or any elements or derivatives of the foregoing.

Warnings; Disclaimers
Please note that the User Materials might become the subject of public disclosure. Thus, other than as set forth in any other agreement executed by Company or as required by law, neither Company nor its successors, assigns, transferees, or licensees are responsible for, and expressly disclaim any liability arising from or in connection with, its/their use of any User Materials in accordance with the terms and conditions of this Agreement.

3. Suspension or Termination of Service

Company has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Site, the App and/or your User Account at any time, and without notice or recourse, as Company deems advisable in its sole discretion. Company shall not be liable to you or any third party for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service or loss of content).

4. User Account

Registration
As explained further above, to secure the right to access and use any subscription-only and/or registration-only pages of the Site or the App, you must (in addition to any subscription requirements of Company as may be developed from time to time) register with and create a personal user account with Company through the Site or the App (a “User Account”), as well as further acknowledge your acceptance of and agreement to this Agreement and those additional terms, conditions and policies referenced herein, as Company may require from time-to-time. As part of the registration process, you may be required to satisfy certain conditions precedent imposed by Company (including, for example, providing additional information to Company, and entering into additional agreements with Company). Unless otherwise permitted by Company in writing, you may only have one (1) non-transferable User Account.

User Account Activity and Information
You are responsible for all activity that occurs under your User Account and are prohibited from authorizing or allowing any third party to access or use your User Account. Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password). You should also maintain accurate, complete, and up-to-date information in your User Account (including, without limitation, maintaining a valid and current payment method and e-mail address) because your failure to do so may result in your inability to access, use, and/or receive all or any part of the Site or the App and/or Company’s termination of this Agreement. For security purposes, you shall immediately notify the Company if you suspect a third party has gained access to or is using your User Account without authorization. For the avoidance of doubt, Company has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors, and vendors to access and use, the information in your User Account in order to facilitate the exercise and performance of Company’s rights and obligations under this Agreement, the operation of the Site and the App, and/or any other rights, obligations, and services related to the subject matter of this Agreement (including, without limitation, payments and communications).

Indemnification
If you fail to comply with any terms or conditions of Section 7.2 above (whether intentionally or unintentionally), then you accept full responsibility for the consequences thereof (including, without limitation, any unauthorized charges and payments, any unauthorized changes to your User Account information and settings and any unauthorized access or use of your User Account), and agree to indemnify, release and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorney fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with your failure to comply with such terms or conditions.

5. Informed consent

Introduction
Via our service, you may receive telehealth services of which the scope will depend on what state you are resident in; either teletriage or telemedicine. In order for a veterinarian to perform telemedicine services, there must be an established veterinary-client-patient-relationship (VCPR) unless it is an emergency circumstance. This typically means that the veterinarian has seen the patient in person, depending on the state within the past 12 months, and is familiar with the client and pet. Some states, however, allow a VCPR to be established virtually. A veterinarian may provide telemedicine based upon a VCPR established by another licensed medical professional, if the veterinarian has access to pre-existing medical records, provided by you or your veterinarian or practice.

We only provide telemedicine services in states where it would be VCPR compliant. In the other states, we only provide teletriage services. To find out which states we provide telemedicine services in, visit our Virtual Care FAQ.

When using our services, you will always see a licensed medical professional licensed in the state you have informed us that you reside in. It is therefore important that you always keep your profile updated with the accurate and correct details of your residency.

Teletriage services
Our teletriage services involve the use of electronic communications to enable the exchange of general medical information between one of our licensed medical professionals and you when you log on to your appointment with us. Our teletriage services can provide timely assessment and management of your pet but, without a VCPR, we cannot provide a diagnosis, prescribe medications, or give a prognosis for your pet’s condition. We will be able to provide you with general advice and help with the triage of your pet’s injury or illness, to help you determine if your pet needs to be seen at an emergency clinic right away or if you can manage your pet’s condition at home.

Telemedicine services
Our telemedicine services involve the use of electronic communications to enable exchange of medical information between one of our licensed medical professionals and you when you log on to your appointment with us, and based on a VCPR (established virtually or otherwise as described above) or lack of VCPR requirements in your state, allowing the licensed medical professional to evaluate, provide a diagnosis, treatment (including prescription of medication where legally allowed) or provide a prognosis for your pet’s condition through virtual tools.

Expected benefits of teletriage and telemedicine

  • Improved access to medical care by enabling a client and patient to remain at a remote site while the veterinarian obtains test results and consults from other veterinarians at distant/other sites;

  • More efficient medical evaluation and management; and

  • Obtaining expertise of a distant specialist.

Possible risks of teletriage and telemedicine
As with any medical procedure, there are potential risks associated with the use of teletriage and telemedicine. These risks include, but may not be limited to:

● Delays in medical evaluation and treatment could occur due to deficiencies or failures of the equipment;

● In rare cases, information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical decision making by the veterinarian and consultant(s);

● In rare cases, a lack of access to complete medical records may result in adverse drug interactions or allergic reactions or other judgment errors; and

● In rare instances, security protocols could fail, causing a breach of privacy of personal medical information.

Not a pharmacy
The Company is not a pharmacy and does not sell any prescription medications. Instead, the Company has entered into cooperations with pharmacies, who are able to deliver your pet’s medications right to your residence.

WHEN YOU CREATE, REGISTER OR LOG INTO AN ACCOUNT THROUGH THE SITE OR THE APP YOU ARE AUTOMATICALLY ACKNOWLEDGING AND CONFIRMING THE FOLLOWING:

● I understand that the Company’s delivery of the services will take place via the Site or App where I and the licensed medical professional are not in the same physical location. I understand that any advice given in the Service may be limited in the absence of in-person examination of my pet.

● I understand that I need to provide a full and accurate description of my pet’s condition and medical history, including any pre-existing conditions of my pet and any medications that my pet is taking to Company so that Company can accurately determine what services my pet needs.

● I understand that Company will determine whether telemedicine is appropriate for my appointment, based on my pet’s condition being diagnosed or treated. I also understand that I may reside in a state that only permits Company to provide teletriage services. In such states, the services will only be of teletriage nature, meaning that no diagnosis, prognosis or treatment of my pet will be provided. In states where it is VCPR compliant to provide telemedicine, the services may involve treatment or medical advice, including prescription of medication.

● I confirm that my profile is updated with correct and current details of my resident state and home address to provide information of which state I reside in. I will update my profile if my home address changes.

● I understand that I may expect the anticipated benefits for my pet from the use of the Company’s services, but that results cannot be guaranteed or assured. I further understand the risks of telehealth and waive any liability to Company or its licensed medical professionals.

● I understand that the Site and App is for non-emergency use only, and that I should visit an emergency room or call my primary veterinary clinic immediately if my pet is experiencing a medical emergency.

● I understand that it is my responsibility to contact my primary veterinarian and/or attend their clinic (or nearest emergency hospital) if my pet’s condition persists or deteriorates unexpectedly.

● I understand that the laws that protect privacy and the confidentiality of medical information also apply to telehealth, and that information obtained in the use of the Company’s services which identifies me will only be processed in accordance with the Company’s Privacy Policy. I further understand that the Company may communicate with me and/or share medical information about my pet via different communication methods, including email, text messages and push notifications in accordance with the Privacy Policy.

● I understand any prescriptions ordered and delivered to me by the Company and/or it’s partner VetSource are prescribed only for, and may only be administered to, my pet. I acknowledge that such prescriptions are never for human use and I will administer any such prescriptions to my pet in accordance with the prescription.

● I understand that a variety of alternative methods of medical care may be available to my pet, and that I may choose one or more of these at any time, including telehealth via the Company’s services. I further understand that I have the right to withhold or withdraw my consent to the use of telehealth in the course of my pet’s care at any time, without affecting the pet’s right to future care or treatment.

● I understand that I have the right to inspect all information obtained and recorded in the course of the Company’s services and may receive copies of this information. The medical records from an appointment will be sent to my registered email address after the appointment is completed.

● I confirm that I have read and understood the information above and all of my questions have been answered to my satisfaction.

6. Products and Services

Company may offer, sell, market or provide various products and services on or through the Site and/or the App. Company and/or Company’s third-party payment processing vendor may facilitate the transaction as an intermediary through the provision or operation of the online technological platform or online payment processing application.

7. Subscriptions & Pricing

Subscription Plans and Fees
As explained further above, to secure the right to access and use certain subscription-only pages, features, or functions of the Site and the App, and to maintain your User Account in good standing, you must subscribe to Company for a period of either six (6) months or one (1) year, subject to auto-renewal at the completion of the subscription period. Accordingly, you understand and acknowledge that, with the exception of any free trial periods, Company will indirectly charge your iTunes or Google Play account (“iTunes/Google Play Account”), upon your confirmation of purchase via the Apple App Store or the Google Play Store, a recurring subscription fee in exchange for your right to access and use the subscription-only pages and features of the Site and the App in accordance with this Agreement, the amount of which is provided on the subscription webpage and/or tab of the Site and the App, respectively, and which may be modified from time-to-time by Company (the “Subscription Fee(s)”). Accordingly, you understand, acknowledge, and agree that at the start of each subscription period, the payment transaction for the applicable Subscription Fee will be charged to either your iTunes/Google Play Account or your payment method on file within the Vorburst app, and you will receive a receipt from the Apple App Store through your iTunes/Google Play Account or Vorburst directly via the Vorburst merchant service. The Subscription Fees shall be calculated as follows: Vorburst currently offers the following options: (1) One video veterinary consultation for $35; or (2) A six-month unlimited video consultation subscription for $65; or (3) A one year unlimited video consultation subscription for $90.

Cancellations; Automatic Renewal
You may manage or cancel your subscription (including the auto-renewal of your subscription) at any time through the account settings of your iTunes/Google Play Account or by contacting Vorburst directly. If you do not cancel your subscription or turn off the automatic renewal of your subscription before the end of the then-existing subscription period, then your subscription will automatically renew for the same duration as the prior subscription period and you will be billed for, and you must pay for, the subsequent subscription period within twenty-four (24) hours prior to the end of the then-existing subscription period. If you cancel your subscription or turn off the automatic renewal of your subscription prior to the end of the then-existing subscription period, then your right to access and use the subscription-only pages and features of the Site and the App may continue through the end of the existing subscription period. Any technical issues relating to the cancellation of your subscription through your iTunes/Google Play Account should be handled by contacting the appropriate customer support team for the Apple App Store or Google Play Store, as applicable.

Subscription Fee Amounts
To the extent permitted by law, the Subscription Fee amounts are subject to change by Company as determined in its sole discretion. Additional information about Company’s current Subscription Fee rate amounts is available at www.vorburst.com/#pricing. By accepting the terms and conditions of this Agreement, you understand and acknowledge that Company reserves the right, but not the obligation, to increase its Subscription Fee rate amounts at any time and as Company sees fit in its sole discretion.

Free Trials and Discounts
Company reserves the right, but not the obligation, to afford you a promotional free trial period(s) or discounted Subscription Fee amount(s) for accessing and using any or certain subscription-only pages and features of the Site and/or the App. Company will not charge you a Subscription Fee for any such promotional free trial period. In the event that you elect to purchase a subscription during your promotional free trial period, then any unused portion of time remaining on your promotional free trial period shall be forfeited.

Notwithstanding the foregoing, you hereby understand, acknowledge, and agree that your iTunes/Google Play Account will be charged the Subscription Fee within twenty-four (24) hours prior to the end of the promotional free trial period unless you turn off the automatic renewal of subscriptions in the account settings of your iTunes/Google Play Account.

You further understand, acknowledge, and agree that in the event you have been offered a discounted Subscription Fee amount, you will be charged the normal Subscription Fee amount that applies to your subscription upon the termination of the then-existing subscription period, and you will automatically be charged such amount within twenty-four (24) hours prior to the end of the then-existing subscription period unless you turn off the automatic renewal of subscriptions in the account settings of your iTunes/Google Play Account.

8. Payments

Third-Party Payment Processing Vendor
All credit card, debit card and other monetary transactions on or through the Site and/or the App occur through an online payment processing application that is provided by a third-party vendor and that is accessible through the Site and/or the App. Company’s relationship with its third-party payment processing vendor(s), if any, is merely contractual in nature, as it is nothing more than a third-party vendor and is in no way subject to Company’s direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers, contractors or the like.

Refusal of Products and Services
Company has the right to refuse its products and services (including, without limitation, the Site, the App, and any products and services offered by Company) if it suspects that you are in any way involved in fraudulent or illegal activity, including, but not limited to, the use of stolen credit cards or prescription medication fraud. Company may contact your payment method issuer, law enforcement, or others and share information relating to your payments if Company believes doing so will prevent a violation of the law or financial loss.

Payment Authorization
If you provide Company with your payment information, then you authorize Company to do the following as Company deems necessary, although Company has no obligation to do so: (a) share your payment information with the third-party payment processing vendor(s); and (b) obtain your updated payment information from your payment issuer, the third-party payment processing vendor(s) and/or applicable third-party providers.

Payment Obligations
You agree that you are responsible for all amounts that accrue under your account(s) with Company, the third-party payment processing vendor(s) and/or other third parties on or through the Site and/or the App. You also agree to be responsible for all payments, fines, penalties and other liabilities incurred by any such person or entity that arises out of or relates to payments that you authorize or accept on or through the Site and/or the App, including, without limitation, all fees, penalties, taxes and duties; and to be responsible for all expenses (including costs and reasonable outside attorney fees) and interest incurred by any such person or entity to collect any overdue amounts.

Waiver of Claims; Unauthorized Payments
To the fullest extent permitted by applicable law, you agree to waive all claims against Company related to any unauthorized payments made on or through your account(s) with Company, Company’s third-party payment processing vendor(s), or any other third parties and/or any other person or entity, regardless of whether they are authorized or unauthorized. However, you may submit a claim of the unauthorized payment to Company, and Company will undertake a reasonable investigation as it sees fit under the circumstances of and, if Company deems appropriate, assist in correcting the alleged unauthorized payment, provided that such claim (“Unauthorized Payment Claim”) is received by Company within fifteen (15) days of the subject charge or payment. Each Unauthorized Payment Claim must be submitted to any one of the following:

By mail: Vorburst, LLC., 1309 Coffeen Avenue STE 1200 Sheridan, Wyoming 82801, with a subject line of “Claim Concerning Unauthorized Payment.”

By e-mail: [email protected], with a subject line of “Claim Concerning Unauthorized Payment.”

For each Unauthorized Payment Claim, please state “Claim Concerning Unauthorized Payment” in the e-mail or letter subject line, and clearly state the following in the body:

  1. The date and approximate time of the subject transaction;

  2. The services tendered or to be tendered under the subject transaction;

  3. The total monetary amount of the subject transaction;

  4. Whether the subject transaction was made on or though the Site;

  5. Whether the subject transaction was made on or though the App and, if so, the version of the App;

  6. The parties to the subject transaction, including the buyer and seller;

  7. A detailed explanation for why you believe the charge or payment made under the subject transaction is unauthorized;

  8. The monetary amount of the subject transaction you believe is subject to a refund;

  9. Your name, street address, city, state, zip code and e-mail address; and

  10. Whether you prefer to receive a response to your request by mail or e-mail.

If you send an Unauthorized Payment Claim by mail, then please do so by U.S. Certified Mail, Return Receipt Requested to allow for confirmation of mailing, delivery, and tracking. Company will not accept an Unauthorized Payment Claim via telephone or facsimile. Company is not responsible for any Unauthorized Payment Claim that is incomplete, incorrectly labeled, incorrectly sent or untimely.

Accurate Payment Information

You represent and warrant to Company that any payment information you provide on or through the Site and/or the App is current, complete and accurate, and that you will promptly notify Company if your payment information has changed (such as a change in address or expiration date), if your payment method has been cancelled, or if you become aware of a breach of security.

No Refunds
All sales and payments made on, through or regarding the Site, the App and/or your User Account are final, irrevocable and not subject to or eligible for a refund.

9. Electronic Communications

Express Consent
You hereby expressly consent to Company sending or otherwise communicating with you for any purpose (including, without limitation, for advertising, telemarketing, or other marketing or promotional purposes, or for sending or notifying you about special offers, updates, newsletters or other informational purposes) via any electronic means or forms as Company deems appropriate in its sole discretion, whether through the Site, through the App, through your User Account, by personal communication, by e-mail, by automatic telephone dialing system, by telephone, by artificial or prerecorded voice, by online social media, by text message (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) or by other electronic media means or forms. By giving such consent, you agree that no such communication shall violate the CAN-SPAM Act, the Telephone Consumer Protection Act, or any other applicable laws, rules, or regulations. Voice, message, and data fees, rates, charges, and taxes may apply to you, and you are responsible for payment of the same. You are not required to grant the foregoing consent as a condition for purchase or license of any Company products or services.

E-mail Opt-Out
You may opt-out of receiving any e-mails as described in Section 11.1 above any time by following the opt-out instructions in any such e-mails you have received and from which you would like to opt-out. You may also opt-out of receiving certain e-mails by managing your electronic communication preferences through your User Account. You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site, the App, your User Account, Company’s products or services, and/or your ability to receive certain messages and/or notifications from Company.

Text Message Opt-Out
You may opt-out of receiving any text messages (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) as described in Section 11.1 above at any time by following the opt-out instructions in any such text messages you have received and would like to opt-out of receiving. You may also opt-out of receiving certain text messages by managing your electronic communication preferences through your User Account. You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site, the App, your User Account, Company’s products or services, and/or your ability to receive certain messages and/or notifications from Company.

Other Opt-Outs
You may opt-out of receiving any communications besides those described in the sections above at any time by providing Company with an e-mail to [email protected], with a subject line of “Opt-Out of Communications,” a list in the body of the e-mail that identifies the specific type of communication(s) that is the subject of your opt-out request (e.g., communications by automatic telephone dialing system), and a list in the body of the e-mail that identifies the telephone number(s) or e-mail address(es) (as applicable depending on the specific type of communication(s) that is the subject of your opt-out request) belonging to you that are the subject of your opt-out request. You may also opt-out of receiving certain of those communications by managing your electronic communication preferences through your User Account. Further, for certain telephone communications (e.g., communications by automatic telephone dialing system), you may opt-out by using any other reasonable method delivered to the appropriate department of Company. You acknowledge that opting out of receiving any of those communications may impact your receipt, the success, and/or the performance of all or any part of the Site, the App, your User Account, Company’s products or services, and/or your ability to receive certain messages and/or notifications from Company.

10. Prohibited Activities

You shall not engage in any of the following activities at any time with respect to the Site or the App: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Company or its licensors with respect to the Site or the App); (c) the reproduction of the Site, the App or any data or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by Company herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer or randomly generated content; (g) supplying or publishing any information or statements to or through the Site or the App that is false, misleading, deceptive or incorrect; (h) any act that constitutes a commercial activity; (i) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers or applications; (j) the systematic retrieval or copying of any information or content found on or through the Site, the App or any servers which may host the Site or the App to directly or indirectly create or compile, in whole or in part, a collection, compilation, database or directory; (k) the use of any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Site, the App, any servers which may host the Site or the App, or any data or content found thereon or therein; (l) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like in relation to the Site, the App, or any servers which may host the Site or the App; (m) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Site, the App, or any servers which may host the Site or the App; (n) any act that gains or attempts to gain unauthorized access to computer systems, networks, information or materials through the Site, the App or any servers which may host the Site or the App; or (o) any other act that Company becomes aware of and believes in good faith is improper, illegal or harmful to the Site, the App, any servers which may host the Site or the App, any person or entity or the property of any person or entity.

11. Links to Other Sites, Apps or Networks

Linked Technologies
The Site and/or the App may contain links to third-party websites, networks, platforms, servers and/or applications (“Linked Technologies”). The Linked Technologies are not under the control of the Company. The Site and the App only contain these links as a convenience to you.

Disclaimer About Linked Technologies
Company is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from the Linked Technologies (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information and illegal content). Company does not make, nor has Company made, any representations or warranties (whether express, implied or otherwise) concerning the terms of use or service, privacy policies, agreements, information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from the Linked Technologies; nor shall the fact that the Site or the App link to any Linked Technologies constitute an affiliation with, association with or endorsement of such Linked Technologies or any information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from such Linked Technologies. If you decide to access any Linked Technologies, then you do so at your own risk.

12. Take Down

Company reserves the right, but not the obligation, to take down or otherwise exclude from the Site and the App, without notice or recourse, any communications, names, photographs, information and/or content made or submitted by you or others on or through the Site or the App that Company believes at any time and in its sole discretion to be infringing or otherwise in violation of the proprietary, privacy or publicity rights of any person or entity; plagiarizing; defamatory; disparaging; embarrassing towards any person or entity; disclosing of confidential, private or personal information about or belonging to any person or entity; profane; indecent; obscene; racist, sexist, or otherwise derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; illegal; false; misleading; deceptive; inciting violence; hate speech; and/or a political attack on a group or individual.

13. Copyright Infringement

Copyright infringement

Company respects the copyrights of others, and prohibits users from uploading, posting, distributing, or otherwise transmitting any materials on or through the Site or the App, or from engaging in any activities on or through the Site or the App, that violate the copyrights of others. It is the policy of Company to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of any subscriber and account holder (which may include, without limitation, you) to access, register with, and use the Site and the App who is a repeat copyright infringer. If Company becomes aware that a user who is not a subscriber or account holder (which may also include, without limitation, you) is a repeat copyright infringer, then it is the policy of Company to take reasonable steps within its power to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of that user to access and use the Site and the App. The following procedures shall apply in the event that you or another person or entity alleges that the reproduction, public performance, public display, digital transmission, or other use of a work found on the Site or the App infringes your copyright, the copyright of said person or entity, or any other intellectual property right owned by you or said person or entity. These procedures are intended to comply with 17 U.S.C. § 512 and any other applicable laws. By visiting, accessing, registering with, or using the Site or the App, you are automatically agreeing to comply with the following procedures.

Takedown Notice (Materials)
To report any materials on the Site or App that violate the copyrights of others, you must send Company a written communication that includes substantially the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;

  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Takedown Notice (Information Location Tools)
To report any information location tools (e.g., hyperlinks) on the Site or the App that refer or link users to an online location containing infringing material or infringing activity, you must send Company a written communication that includes substantially the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

  3. Identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link;

  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Counter-Notice
If you believe that any material you have uploaded, posted, distributed, or otherwise transmitted on the Site or the App has been removed by mistake or misidentification, and if you have the right to upload, post, distribute or otherwise transmit the material at issue, then you may send Company a written communication that includes substantially the following:

  1. A physical or electronic signature of the subscriber;

  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

  3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

  4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.

Copyright Administrator
The foregoing written communications (i.e., the above-described takedown notice, and the above-described counter-notice) must be sent to the following designated agent of Company:

Vorburst, LLC., 1309 Coffeen Avenue STE 1200 Sheridan, Wyoming 82801, e-mail: [email protected]

14. User Representations, Warranties, and Covenants

You represent, warrant and covenant to Company that: (a) you are a natural person and of eighteen (18) years of age or older, or otherwise the age of majority in your jurisdiction; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that by accepting this Agreement you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state or local laws which may concern the Site, the App, any servers which may host the Site or the App or any information, communications or content found on or through them; (g) you are the exclusive owner of all rights, titles and interests in and to the User Materials (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials to allow for your performance and grant of rights hereunder; (h) the User Materials are wholly original to you; (i) the User Materials do not and will not infringe upon or otherwise violate the proprietary, publicity, or privacy rights of any person or entity; (j) the User Materials do not and will not defame, disparage, embarrass or disclose confidential, private or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials is or will be, or contains or will contain, links to material that is profane, indecent, obscene, threatening, abusive, illegal, false, misleading or any form of spam, malware, virus, bug, bot, spyware or other malicious or tracking technology; (l) Company is not required to seek the permission of or compensate any third party(s) to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to Company in connection with your access or use of the Site and the App is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties.

15. Disclaimers and Limitations

General Disclaimer
Your visit, access, registration with or use of the Site and/or the App in any way is done at your own risk. The Site, the App, the success or performance of the Site or the App and all information, communications, content, features, products and services offered, sold and/or licensed on or through the Site and/or the App are provided to you on an “as is,” “where is,” “as available,” and “with all faults” basis. Company does not make, nor has Company made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written or express or implied) to you with respect to the Site, the App, the success, performance, functionality, reliability or safety of the Site or the App or any such information, communications, content, features, products or services. Company expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, quality, accuracy, reliability and performance) and warranties arising from conduct, course of dealing, custom and usage in trade with respect to the Site, the App, the success, performance, functionality, reliability or safety of the Site or the App and any such information, communications, content, features, products and services. Company does not make, nor has Company made, any affirmation of fact or promise relating to the Site, the App, the success, performance, functionality, reliability or safety of the Site or the App or any such information, communications, content, features, products or services that has become any basis of this bargain. There are no warranties (whether express, implied, or otherwise) concerning the Site, the App, the success, performance, functionality, reliability or safety of the Site or the App or any such information, communications, content, features, products or services that extend beyond the face of this Agreement.

Disclaimer About Company Products and Services
All descriptions, images, references, features, content, specifications, products, and prices of any products or services offered by Company on or through the Site or the App are subject to change at any time and without notice to you. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services through the Site or the App does not imply or warrant that they will be available. Any medical products are provided subject to all warnings, limitations, and restrictions published or provided by the manufacturer thereof. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any product or service ordered or purchased through the Site or the App. Company reserves the right, with or without prior notice to you, to do any one or more of the following: (i) limit the available quantity of or discontinue any such product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar you from making or completing any transactions through the Site or the App; and (iv) refuse to provide you with any such product or service.

Disclaimer About System Delays
You understand and acknowledge that the Site and/or the App may be subject to limitations, delays and other problems inherent in the use of third-party communication networks and facilities that are outside of Company’s control. Accordingly, Company shall not be responsible for, and expressly disclaims, any delays, failures, losses, injuries, liabilities or damages associated with the Site and/or the App which result from any system delays, downtimes, interruptions or other failures of or problems with the Site and/or the App which are outside of Company’s control (including, without limitation, scheduled maintenance or network failure).

Disclaimer About Certain Information, Communications and Content
Any opinions, advice, reviews, statements, offers or other information, communications or content found on, through or in relation to the Site or the App, in any marketing or promotional materials concerning Company, the Site, the App or any third-party providers (including, without limitation, advertisements and social media pages) or made or provided during the course of your visit, access, registration with or use of the Site or the App are those of their respective authors, and not necessarily those of Company, and, thus, should not necessarily be relied upon. Such authors are solely responsible for the accuracy of such information, communications or content. Company does not guarantee, adopt or endorse the accuracy, completeness, reliability or usefulness of any such information, communications or content, even if Company is the author. Company is not responsible for the accuracy, completeness, reliability or usefulness of any such information, communications or content. Under no circumstances shall Company be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information, communications or content.

Limitation of Liability
In no event shall Company or any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs or repair costs) caused by or arising from or in connection with: (a) your access, inability to access, registration with, inability to register with, use or inability to use the Site or the App; (b) the unauthorized access to or alteration of your information; (c) any statements, content or conduct of any third party on, through or in relation to the Site or the App or made or provided during the course of your visit, access, registration with or use of the Site or the App; (d) any hacking, denial of service attacks, data security breaches or other third-party conduct that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), network(s) or User Account; (e) any transmission, download or infection of any software, system, program, file, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware and malware) that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), network(s) or User Account; (f) the fact that you have relied on any information or content found on, through, or in relation to the Site or the App or made or provided during the course of your visit, access, registration with or use of the Site or the App; (g) any acts, errors or omissions of any third-party providers, if any; or (h) any products or services offered or sold by Company on or through the Site or the App. If you are dissatisfied with the Site, the App or any products or services offered or sold by Company on or through the site or the App, then your sole and exclusive remedy against Company and/or Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees is to discontinue your access and use of the Site, the App and those products and services.

No Injunctive Relief
If Company breaches or otherwise violates this Agreement, then you shall not be entitled to seek or obtain, and you do hereby waive, any type of injunctive relief against the Site and/or the App as a result of such breach or other violation. For the avoidance of doubt, the foregoing limitation on injunctive relief does not limit your ability to seek or recover any monetary remedies authorized by law in the event of any such breach or other violation (except for those which are otherwise expressly precluded by this Agreement).

Limitation of Remedies
If Company breaches or otherwise violates this Agreement, then in no event shall you be entitled to recover any special, incidental, consequential, speculative or punitive damages arising out of or in relation to such breach or other violation, even if Company has been notified of the possibility of such damages.

Consumer Protections
The disclaimers and limitations set forth in this section are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.

16. General Release of Claims

You hereby release and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors and licensees from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, property damage, negligence and/or any other legal theory arising from or in connection with the Site, the App, the products or services offered or provided on or through the Site and/or the App and/or the rights and privileges granted or conveyed by you under this Agreement (including, without limitation, those rights and privileges relating to the User Materials and/or any elements, derivatives or marketing of the foregoing). Further, you waive your right to, and in no event shall you seek to, enjoin Company, any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees or any exercise of the rights or privileges granted or conveyed by you under this Agreement (including, without limitation, the User Materials). You also hereby waive any rights you may have under Section 1542 of the California Civil Code and any other statute or common law principle of similar effect, which provides: “A general release does not extend to claims that the creditor does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

17. Indemnification

You hereby agree to indemnify, release and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorneys’ fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with (a) your acts, errors or omissions, (b) your use of the Site, the App or any products or services offered or provided on or through the Site or the App in any manner contrary to the terms and conditions of this Agreement, (c) your violation of the rights of or other injury to any third party, and/or (d) your breach of all or any part of this Agreement.

18. Term; Termination; Survival

This Agreement shall continue and remain in effect until it is terminated in accordance with the terms and conditions of this Agreement. Company may terminate this Agreement at any time, for any or no reason, and without notice to you (including, without limitation, if Company believes that you have violated or acted inconsistently with any term or condition of this Agreement). You may terminate this Agreement at any time and for any or no reason by cancelling your subscription with Company, with such cancellation being effected by you through your timely use of the cancellation feature of your User Account. If this Agreement is terminated for any reason, then all rights granted to you under this Agreement shall automatically revert back to Company, and the following shall survive in perpetuity: (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to and/or accrued in favor of Company and/or any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees as of the date of this Agreement’s termination; (c) all payments which accrued as of the date of termination; (d) all disclaimers, limitations of liability and limitations of remedies; and (e) all representations, warranties, covenants, certifications, releases, indemnifications and promises made by you under this Agreement.

19. Governing Law

This Agreement, the additional terms, conditions, and policies referenced herein (including, without limitation, the Site’s and the App’s Privacy Policy), your access or use of the Site and/or the App, your transactions on, through or in relation to the Site and/or the, your purchase or use of any products or services offered, sold, marketed or provided on, through or in relation to the Site and/or the App, all information disclosed or received on, through or in relation to the Site and/or the App (including, without limitation, personal information and non-personal information), all content found on, through or in relation to the Site and/or the App, all information, communications and statements made on, through or in relation to the Site and/or the App (including, without limitation, your express consent to Company sending or otherwise communicating with you via any electronic means or forms, e.g., e-mail, telephone, text message), the Parties’ relationship, and/or all disputes, controversies and claims arising from or concerning any or all of the foregoing (whether grounded in contract, tort, statute, law or equity) shall be governed, interpreted, construed and enforced in accordance with the laws of the State of New York in the United States of America and applicable federal law of the United States of America, regardless of its place of execution, its place of performance and any conflicts of law analysis. For the avoidance of any doubt, the United Nations Convention on Contracts for the International Sale of Goods shall have no application whatsoever.

20. Dispute Resolution

Binding Arbitration; Waiver
Each Party hereby irrevocably submits all disputes, controversies and claims arising from or concerning any or all of the following (whether grounded in contract, tort, statute, law or equity) (collectively, the “Dispute(s)”) to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. (a/k/a JAMS) or its successor (“JAMS”) for the resolution thereof, and such arbitration shall be the sole and exclusive method for resolving the Disputes: this Agreement; the additional terms, conditions, and policies referenced herein (including, without limitation, the Site’s and the App’s Privacy Policy); your access or use of the Site and/or the App; your transactions on, through or in relation to the Site and/or the App; your purchase or use of any products or services offered, sold, marketed or provided on, through or in relation to the Site and/or the App; all information disclosed or received on, through or in relation to the Site and/or the App (including, without limitation, personal information and non-personal information); all content found on, through or in relation to the Site and/or the App; all information, communications and statements made on, through or in relation to the Site and/or the App (including, without limitation, your express consent to Company sending or otherwise communicating with you via any electronic means or forms, e.g., e-mail, telephone, text message); and/or the Parties’ relationship. The arbitration shall be binding, final and confidential. Each Party acknowledges and agrees that such Party is waiving the right to a trial by jury or to participate as the member of a class in any purported class action proceeding.

Arbitration Rules
The arbitration shall be conducted before a single arbitrator under the then-current JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as supplemented by the Federal Rules of Civil Procedure and the Federal Rules of Evidence if and where applicable as a gap-filler. If there is any conflict between a provision of the JAMS Rules, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or this Agreement, then the conflicting provision of this Agreement shall control and govern over the JAMS Rules, the Federal Rules of Civil Procedure and the Federal Rules of Evidence; and the JAMS Rules shall control and govern over the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The construction, interpretation, and enforcement of this Section 22 is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

Arbitration Process, Location, and Procedures
The Party initiating the arbitration proceeding shall serve a written notice of arbitration on the other Party in accordance with the JAMS Rules. The arbitration shall be held in New York City, New York, United States of America. The arbitration shall be conducted in the English language. The arbitrator shall be selected in accordance with the JAMS Rules, unless otherwise agreed to by the parties to the arbitration. All issues or questions concerning either the scope of this arbitration clause or the arbitrability of any of the Disputes shall be referred to and finally decided by the arbitrator. The arbitrator may construe or interpret, but shall not vary or ignore, the terms and conditions of this Agreement and shall be bound by applicable law.

Arbitration Decisions and Awards
The arbitrator shall render a written final decision on the subject Dispute as soon as practicable and in any event not more than forty-five (45) days after the close of evidence and briefing. The arbitrator’s decision shall be written, shall be in accordance with applicable law, and shall be supported by written findings of fact and conclusions of law setting forth the basis for the arbitrator’s decision. The arbitrator shall have no authority to award punitive, exemplary or consequential damages, unless such an award is authorized by applicable law. The arbitrator shall have the authority to award attorney fees and expenses if such an award is permitted under this Agreement or applicable law. Subject to any applicable rights of appeal, the final decision of the arbitrator shall be binding and conclusive upon all of the Parties who have been served with proper written notice of the arbitration proceeding as required by this Section 22. Judgment on any award rendered by the arbitrator may be confirmed in any state or federal court having jurisdiction thereof that is located in the State of New York, and may be entered in and enforced by any domestic, foreign, or international court having appropriate subject matter jurisdiction. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder shall be kept confidential by the Parties, and any court order to enforce the decision, judgment, ruling, finding, award or other determination of the arbitrator shall be filed under seal.

Arbitration Fees and Expenses
JAMS’s administrative and filing fees, the arbitrator’s fees and expenses and all other fees and expenses charged by JAMS and/or the arbitrator to administer or conduct the arbitration shall be shared equally among all parties to the arbitration; provided, however, that the prevailing party of the arbitration may recover an award of its share of such fees and expenses if such an award is permitted under this Agreement or applicable law.

Litigation; Waiver
In the event a particular Dispute is not subject to arbitration (whether by decision of an arbitrator with binding authority, or otherwise according to this Agreement or applicable law), each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts located in the State of New York, New York County, New York, United States of America and the United States federal courts in the Southern District of New York, for the litigation of said Dispute, and covenant and agree that neither of the foregoing is an inconvenient venue or forum.

Waiver of Jury Trial and Class Action
Regardless of whether a particular dispute is subject to arbitration or litigation, each Party does hereby waive such Party’s right to a trial by jury, to participate as the member of a class in any purported class action or other proceeding or to name unnamed members in any purported class action or other proceedings.

21. Several Notes About This Agreement And Apple

General
The following addresses certain matters with respect to Apple Inc. (“Apple”) and/or the so-called “Usage Rules” set forth in Apple’s App Store Terms and Conditions (located at https://www.apple.com/legal/internet-services/itunes/us/terms.html) as of the effective date hereof (“Apple’s Usage Rules”).

Acknowledgement
The Parties hereby acknowledge that:

  1. This Agreement is between the Parties only and not with Apple;

  2. Apple is not responsible for the App or the content thereof;

  3. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;

  4. Apple is not responsible for addressing any claims you or any third party have or may have relating to the App or your possession and/or use of the App, including, without limitation, (i) product liability claims, (ii) any claim that such App fails to conform to any applicable legal or regulatory requirement, (iii) claims arising under consumer protection or similar legislation, and (iv) intellectual property infringement claims;

  5. This Agreement’s usage rules for the App are not intended to be less restrictive than Apple’s Usage Rules;

  6. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement; and

  7. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof.

Amended Scope of Limited License – The App
If you download, access or use the App from or through Apple’s App Store, then the limited license(s) granted to you hereunder with respect to the App (see Section 5.2 above) is/are hereby amended to add the following restriction: you may not use the App on any device other than the Apple-brand device (e.g., iPhone, iPod Touch, iPad) that you own or control or in any manner that is contrary to Apple’s Usage Rules.

22. Miscellaneous

Notice
Unless otherwise expressly stated in this Agreement, Company may give or deliver all other notices to you by means of a general notice posted on this or a similar page of the Site or the App, as applicable, by e-mail to the e-mail address associated with your User Account or by posting to your User Account, and shall be deemed effective as of their stated effective dates.

Relationship
In no event shall this Agreement, the performance of a Party’s rights or obligations under this Agreement, the Site, the App or a Party’s visit to, access of, registration with or use of the Site and/or the App create any type of fiduciary, franchise, agency, employment, independent contractor, partnership or joint venture relationship between you or Company.

Excused Performance
Company is hereby excused for any failure to perform under this Agreement to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.

Assignment and Delegation
You shall not assign, delegate, or otherwise transfer any of your rights or obligations under this Agreement without Company’s prior written consent in each instance.

Construction and Interpretation
This Agreement shall be construed to have been drafted by all of the Parties, so that any rule of construction or interpretation that construes or interprets ambiguities against the drafter shall have no force or effect.

Headings
Section headings are inserted in this Agreement for reference and convenience only and shall not interpret, define, limit or describe the scope, intent, terms or conditions of this Agreement.

Severability
If any term or condition of this Agreement is deemed invalid or unenforceable by a court of law or arbitrator (as applicable) with binding authority, then the remaining terms and conditions shall not be affected, and said court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the intent of this Agreement.

Entire Agreement
This Agreement, together with those additional terms, conditions, and policies referenced herein and/or made available herein by hyperlink (including, without limitation, the Site’s and the App’s Privacy Policy), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof; supersedes any prior agreements and understandings, if any, between the Parties with respect to such subject matter; and shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.

Contact Us
Please direct any questions you may have about the Site, the App or this Agreement to any one of the following:

By mail: Marla, LLC., 1309 Coffeen Avenue STE 1200 Sheridan, Wyoming 82801, with a

subject line of “Website Question.”

By e-mail: [email protected], with a subject line of “Website Question.”

The foregoing contact information may change from time-to-time by supplementation, amendment or modification of this Agreement.

Last Modified
This Agreement was last modified on 01/19/2022.

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