PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF CYBERGURU, LLC. AND ITS AFFILIATES (COLLECTIVELY, “CYBERGURU”, “US,” “WE” OR “OUR”) WITH LINKS TO THESE TERMS OF SERVICE (COLLECTIVELY, THE “SITE”) IN ANY WAY, INCLUDING SUBCRIBING TO OUR INTERNET-BASED LEARNING SERVICE OR PURCHASING ANY PRODUCTS WE MAY SELL ON THE SITE (“PRODUCTS”), OR ACCESSING OR USING ANY OF OUR SERVICES CONSISTING OF COMPUTING AND INFORMATION SERVICES AND SOFTWARE, INFORMATION, INTERACTIVE FORUMS, AND OTHER CONTENT PROVIDED BY US (COLLECTIVELY, THE “SERVICES”) YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CYBERGURU, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND TO BE BOUND BY THESE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR A SUBSCRIPTION (DEFINED BELOW) ON THE SITE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICES.
THESE TERMS OF SERVICE INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
IF YOU SUBSCRIBE TO ANY PRODUCTS OR SERVICES FOR A SPECIFIED TERM (THE “SUBSCRIPTION TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF TIME AT THE THEN-CURRENT SUBSCRIPTION TERM AT CYBERGURU’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS OF SECTION 4 BELOW. FURTHER, IF YOU SUBSCRIBE TO A FREE TRIAL, UNLESS YOU OPT OUT OF THE TRIAL BEFORE IT EXPIRES, ON THE FIRST DAY AFTER EXPIRATION OF THE TRIAL, YOUR SUBSCRIPTION WILL AUTOMATICALLY BE CONVERTED TO A PAID SUBSCRIPTION IN ACCORDANCE WITH THE TERMS OF SECTION 4 BELOW.
Please note that these Terms of Service are subject to change by CyberGuru in its sole discretion at any time. When changes are made, CyberGuru will make a new copy of these Terms of Service available at the Site and/or through, the affected Services on the Site. We will also update the “Last Updated” date at the bottom of these Terms of Service. CyberGuru may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Site or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you must stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. SUBSCRIPTION. You may simply browse the Site, or you may register with CyberGuru and create an “Account” as a “subscriber”. You must register for an Account to subscribe to the Services. You must only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
2. ACCOUNTS. If you set up an Account, you are required to provide your name and email address and select a password (collectively, your “Account Information”), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms of Service. In no event and under no circumstances will CyberGuru be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of CyberGuru under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity without our prior written consent.
3. ORDERS. These Terms of Service shall govern any order you make through the Site for Services (such order, an “Order”). When you place an Order, we will confirm your address by sending an email to the email address you have provided. Your receipt of an Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We may require additional verifications or information before accepting any Order.
4. SUBSCRIPTIONS AND AUTO-RENEWAL; TRIAL. The Services are currently made available on a subscription basis (“Subscription”). You can become a subscriber by purchasing a Subscription from the Site for a fee (“Subscription Fee”). Your Subscription, as a subscriber, will continue indefinitely until terminated in accordance with these Terms of Service. As a subscriber, after the first month or year of the Subscription, depending upon the subscription term purchased, from the date of first purchase, and again after any subsequent Subscription period, your Subscription will automatically renew (each a “Subscription Renewal”) on the first day of each subsequent Subscription period (each a “Renewal Commencement Date”), at CyberGuru’s then-current Subscription Fee for such Subscription. You will be automatically charged the Subscription Fee on the Renewal Commencement Date. You, as a subscriber, agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription at least thirty (30) days prior to the next Renewal Commencement Date by logging into and going to the “Change/Cancel Membership” page of your “Profile” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact CyberGuru at email@example.com or log in and go to the “Change/Cancel Membership” page on your “Profile” page. If you cancel your subscription, you may use your Subscription until the end of your then-current Subscription term and your Subscription will not be renewed beyond the then-current subscription term. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription term. By subscribing, you authorize CyberGuru to charge your payment method when you place an Order, and again on the Renewal Commencement Date of any Subscription Renewal. Upon renewal of your Subscription, if CyberGuru does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that CyberGuru may either terminate or suspend your Subscription and continue to attempt to charge your payment method until payment is received (upon receipt of payment, if CyberGuru agrees to activate your Account, it will be activated and for purposes of automatic renewal, your updated Subscription commitment period will begin as of the day payment was received).
Your Subscription plan may begin with a free trial (“Free Trial”). The length of your Free Trial will be set out when you place an Order; however, we reserve the right, in our absolute discretion, to determine your eligibility for a Free Trial, and to withdraw or to modify your Free Trial at any time without prior notice, and without liability to us. As a Free Trial, you acknowledge and agree that your use and access, and the use and access of the Site is subject to these Terms of Service. As a Free Trial subscriber, you agree to provide your payment method during the order process before beginning your Free Trial. We will not process your payment during your Free Trial (except that you may see a authorization), provided, however, on the first day following the end of your Free Trial we will automatically convert your Free Trial into a paid Subscription and process your payment method on the billing frequency chosen during the order process, which will also place your Account from that date forward into the term set forth in the Order including automatic renewals. By providing your payment method details in conjunction with your Free Trial order, you agree to these charges and practices. If you do not wish to be charged, you must cancel your Free Trial before the end of your Free Trial. Upon cancellation of your Free Trial your access to the Site will terminate immediately.
5. PAYMENT. To pay for an Order, you will need to provide information necessary to process an Order from you, including the billing information requested to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site. By submitting your payment information, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. CyberGuru uses Recurly, Inc. (“Recurly”) to gather your information for payment. By using the Services, you expressly grant the right, power, and authority to obtain and transmit your personal and credit card information in order to process payment. You agree to your personal information, including your credit card information, being transferred, stored, and processed by Recurly in accordance with the Recurly terms at Recurly: https://recurly.com/legal/. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. Because Orders require a valid credit card, only persons age 18 or over should be placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event any children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site, however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
6. PRICING. We cannot confirm the price of any subscription until you place an Order. Unless otherwise noted on the Site at the time of your Order, all prices exclude taxes, if applicable, which will be added to your total purchase price. You shall use the Services only for personal purposes and not for resale.
7. CYBERGURU CONTENT. CyberGuru grants you, as a registered subscriber, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services including the information, software, photographs, images, music, audio and video, text, graphics, and other material contained within the Services (collectively, the “Content”) solely for your personal and individual, non-commercial use on one personal computer or other device capable of displaying the Content. You may not share your access rights nor distribute any Content from the Services to any third party without the prior written consent of CyberGuru.
You acknowledge and agree that the Services and all Content are protected by applicable laws of the United States and foreign countries governing copyright, trademark, and other proprietary and intellectual property rights. You acknowledge and agree that the Services and all Content, including all intellectual property rights embedded therein and thereto, are the sole and exclusive property of CyberGuru and its licensors for which all rights not granted hereunder are and will be expressly reserved. You agree to comply with any additional copyright notices, information, or restrictions applicable to any Content available on or accessed through the Services. CyberGuru and all related trademarks, trade names and logos are marks or registered trademarks of CyberGuru or its licensors and may not be used without CyberGuru’s prior written consent. All other trademarks are the property of their respective owners.
You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Services or Content, in whole or in part, except as expressly permitted in these Terms of Service. Content or any aspect of the Services comprising of or containing downloadable software may not be reverse engineered, decompiled, scraped, tracked, crawled, or otherwise viewed, accessed or obtained unless specifically authorized in writing in advance by CyberGuru. To the extent Content is made available to you for download, you may download the Content only for your personal and individual use as provided herein, solely in connection with your use of your Subscription, and provided that you maintain all copyright and other notices contained in such Content. You shall not store electronically any portion of any Content made available to you, except as may be temporarily stored by your browser in its ordinary course while you are using the Services. Except as may be expressly permitted by these Terms of Service and U.S. copyright laws, no copying, storage, redistribution, or publication of any Content is permitted by you or otherwise without the express prior written consent of CyberGuru or the respective owners of such Content.
[If you use a mobile device or CyberGuru makes a mobile application available to you to access the Site, the following additional terms and conditions (“Mobile Terms”) also apply:
(a) You agree that you are solely responsible for all message and data charges that may apply to use of your mobile device to access the Site and any Content. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing, data rates, participation status, and details;
(b) You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage, and/or service changes made by your service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the wireless carrier and the type of mobile device that you select to use; and
(c) YOUR ACCESS TO OR USE OF THE SITE VIA YOUR MOBILE DEVICE OR CYBERGURU MOBILE APPLICATION CONFIRMS YOUR AGREEMENT TO THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITING THESE MOBILE TERMS.]
9. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site and/or Services, including the Products (“CyberGuru Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. CyberGuru Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written consent and the prior written consent of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of CyberGuru Technology. Nothing in these Terms of Service grants you any right to receive delivery of a copy of CyberGuru Technology or to obtain access to CyberGuru Technology except as generally and ordinarily permitted through the Site according to these Terms of Service. Furthermore, nothing in these Terms of Service will be deemed to grant, by implication, estoppel or otherwise, a license to CyberGuru Technology. Certain of the names, logos, and other materials displayed on Products, the Site or in the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of CyberGuru or other third party entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with CyberGuru or those other entities. Any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms of Service. Subject to these Terms of Service, CyberGuru grants you a limited license to use the Site and Services for your personal and non-commercial purposes. Unless otherwise specified by CyberGuru in a separate license, your right to use any CyberGuru Technology or Content that you access or download through the Site or the Services is subject to these Terms of Service. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for CyberGuru to monitor such materials and that you access and use these materials at your own risk.
10. RULES REGARDING INFORMATION AND OTHER CONTENT. When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call “Materials.” You agree not to revise Materials posted by others, and you represent and warrant that you will not use any Materials in any manner that:
Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
Violates the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
Is false or inaccurate or becomes false or inaccurate at any time;
Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
Misrepresents your identity in any way;
Contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
Advocates or encourages any illegal activity; or
Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
11. GENERAL RULES OF USER CONDUCT. It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
Conduct or promote any illegal activities while using the Site or Services;
Upload, distribute or print anything that may be harmful to minors;
Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
Use the Site or Services to generate unsolicited email advertisements or spam;
Use the Site or Services to stalk, harass or harm another individual;
Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the CyberGuru Content or Materials contained on any such web page for commercial use without our prior express written permission;
Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
Mirror or frame the Site or any CyberGuru Content or Materials, place pop-up windows over its pages, or otherwise affect the display of its pages; or
Resell the Products or Services online or through any other medium.
12. ENFORCING RULES. Though we strive to enforce these rules with all of our users, you may be exposed through the Site or Services to Materials that violate our policies or is otherwise offensive. You access the Site and Services at your own risk. We may, but are not obligated to, remove Materials from the Site for any reason, including if we determine or suspect that such Materials violates these Terms of Service. We are merely acting as a passive conduit for such distribution and we take no responsibility for your exposure to Content on the Site or through the Services whether it violates our content policies or not. CyberGuru will have the right to investigate and prosecute violations these Terms of Service to the fullest extent of the law. CyberGuru may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. CyberGuru may access, preserve and disclose any information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against CyberGuru or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms of Service, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of CyberGuru, the users, or members of the public. You acknowledge that CyberGuru has no obligation to monitor your access to or use of the Site, Services or Content, but has the right to do so for the purpose of operating and improving the Site and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms of Service, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, or to respond to content that it determines is otherwise objectionable or as set forth in these Terms of Service.
13. FEEDBACK. In the event that you provide us any ideas, thoughts, suggestions or other feedback related to Products, the Site or the Services (collectively “Feedback”), you agree we may use the Feedback for any purpose including to improve and/or to modify our Products, Site and Services and that you will not be due any attribution or compensation of any kind. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate written `agreement with you that provides otherwise.
14. MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services, including the Products, with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to terminate your Subscription and cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
15. THIRD PARTY CONTENT AND OTHER WEBSITES. Content from other users, suppliers, advertisers, and other third parties may be made available to you through the Site and/or the Services. Because we do not control such content, you agree that we are not responsible for any such content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Site and Services may contain links to websites not operated by us. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Site and Services may contain links to websites that are operated by us but which operate under different agreement. It is your responsibility to review the privacy policies and agreement of any other website you visit. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH ANY WEBSITES, CONTENT, PRODUCTS, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
You agree that Third party content can and does include practice tests and laboratory exercises requested through submission via the CyberGuru campus and delivered through email. CyberGuru limits users to 1 Practice Test and 1 Laboratory request per month.
16. DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CYBERGURU CONTENT, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE AND SERVICES ARE PROVIDED BY CYBERGURU “WITH ALL FAULTS” AND ON AN "AS IS" AND "AS AVAILABLE" BASIS. CYBERGURU MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, AS TO THE OPERATION OF THIS SITE OR THE CYBERGURU CONTENT, PRODUCTS OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTY THAT THE PRODUCTS, SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL AND/OR USE OF ANY PRODUCT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESETERMS OF SERVICE.
17. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE SUBSCRIPTIONS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE TOTAL AMOUNT OF THE SUBSCRIPTION FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM GIVING RISE TO OUR LIABILITY AND (II) ONE THOUSAND DOLLARS (U.S. $1,000.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
18. INDEMNIFICATION. You agree to indemnify, defend and hold harmless CyberGuru, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents (“CyberGuru Parties”), from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Products, Site or Services (except to the extent prohibited by law); (ii) your violation of these Terms of Service; (iii) your violation of any rights of any other person or entity; or (iv) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services. CyberGuru reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that you will not settle any claim without CyberGuru’s prior written consent. You agree that the provisions in this Section 18 will survive any termination of your Account, these Terms of Service or your access to the Site and/or Services.
19. ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications (as defined below) electronically. This Section 19 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Service by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
20. INTERNATIONAL USERS. This Site can be accessed from countries around the world and may contain references to services and products that are not available in your country. These references do not imply that CyberGuru intends to announce such services or products in your country. The Site and Services are controlled and offered by CyberGuru from its facilities in the United States of America. CyberGuru makes no representations that the Site or the Products are available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own risk and volition and are solely responsible for compliance with applicable laws, rules and regulations. Further, if you are a non-United States user, your personal information may be processed in the country in which it was collected and in other countries, including the United States, and it may be transferred to, and maintained on, computers located outside of your jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. Your consent to these Terms of Service followed by your submission of any of your information represents your agreement to that transfer.
a. Assignment. These Terms of Service, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred or assigned by you without CyberGuru’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
b. Dispute Resolution. If you believe that CyberGuru has not adhered to these Terms of Service, please contact CyberGuru by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
c. Limitations Period. YOU AND CYBERGURU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, THE PRODUCTS, THE SITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
d. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with CyberGuru and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
i. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, Services, Products, or to any aspect of your relationship with CyberGuru, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or CyberGuru may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms of Service (i.e., the date upon which you agreed to these Terms of Service) or any prior version of these Terms of Service.
ii. IF YOU AGREE TO ARBITRATION WITH CYBERGURU, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CYBERGURU ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE CYBERGURU IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THESE TERMS OF SERVICE, INCLUDING THIS ARBITRATION AGREEMENT.
iii. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at 14646 N. Kierland Blvd. Suite 120. Scottsdale, Arizona 85254.
iv. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, CyberGuru will pay them for you. In addition, CyberGuru will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, CyberGuru will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
v. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and CyberGuru. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Service (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
vi. Waiver of Jury Trial. YOU AND CYBERGURU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and CyberGuru are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.d.i above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Service as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
vii. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in federal or state courts located in Phoenix, Arizona
viii. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 14646 N. Kierland Blvd. Suite 120. Scottsdale, Arizona 85254 or email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your CyberGuru username (if any), the email address you used to set up your CyberGuru account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
ix. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
x. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with CyberGuru.
xi. Modification. Notwithstanding any provision in these Terms of Service to the contrary, we agree that if CyberGuru makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to CyberGuru.
e. Governing Law. These Terms of Service and any action related thereto will be governed and interpreted by and under the laws of the State of Arizona, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.
f. Export Control. You may not use, export, import, or transfer any Products, Services, CyberGuru Content or any Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Products, Services, CyberGuru Content or Materials, and any other applicable laws. In particular, but without limitation, the Products, Services, CyberGuru Content or any Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Products or CyberGuru materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Products or CyberGuru materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by CyberGuru are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer CyberGuru products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
g. Procedure for Making Claims of Copyright Infringement. It is CyberGuru’s policy to terminate user privileges of any user who repeatedly infringes copyright upon prompt notification to CyberGuru by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent list below with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Services of the material that you claim is infringing; (4) your address, telephone number and email address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for CyberGuru’s Copyright Agent for notice of claims of copyright infringement is as follows: Support@cyberguru.com
h. Release. You hereby release the CyberGuru Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Site and/or Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of these Terms of Service or your use of the Site and/or Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
i. Force Majeure. CyberGuru shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
j. Notice. Where CyberGuru requires that you provide an email address, you are responsible for providing CyberGuru with your most current email address. In the event that the last email address you provided to CyberGuru is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms of Service, CyberGuru’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to CyberGuru at the following address: CyberGuru 14646 N. Kierland Blvd. Suite 120. Scottsdale, Arizona 85254with a copy to Support@cyberguru.com. Such notice shall be deemed given when received by CyberGuru by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
k. Waiver. Any waiver or failure to enforce any provision of these Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
l. Severability. If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
m. Entire Agreement. These Terms of Service is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
LAST UPDATED: April 13th, 2018