Last Revised 7/13/2021
BY ACCEPTING THIS AGREEMENT, YOU REPRESENT THAT YOU ARE ACTING WITH AUTHORITY AS AN OWNER OR AUTHORIZED REPRESENTATIVE WITH AUTHORITY TO LEGALLY BIND THE ENTITY ON WHOSE BEHALF THIS AGREEMENT IS ENTERED INTO (WITH THE ENTITY BEING TARAMALA’S “CUSTOMER” AND ALSO REFERRED TO HEREIN AS “YOU” AND “YOUR”) FOR THE ENTITY TO BECOME A CUSTOMER OF THE SERVICE AND OBTAIN THE SERVICE FOR USE BY OR FOR THE BENEFIT OF THE ENTITY. THE CUSTOMER WILL BE BOUND TO THIS AGREEMENT. YOU ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF THE ENTITY BY (1) CLICKING ACCEPT OR OTHERWISE SIGNING (ELECTRONICALLY OR OTHERWISE) OR (2) ACTUALLY ACCESSING OR USING THE SERVICES.
PLEASE READ VERY CAREFULLY THE FOLLOWING TERMS AND CONDITIONS FOR USE OF THE SERVICE.
1. Acceptance of Terms; Modifications. This Agreement sets forth legally binding terms for your use of the Service. By using the Service, you agree to be bound by this Agreement. If you do not accept the conditions of this Agreement, you should leave the Service and discontinue use of the Service immediately. We may, from time to time, update, amend and supplement this Agreement. Such modification shall be effective upon its posting on our Website. It is therefore important that you review this Agreement regularly. If Company makes any change to this Agreement that you believe materially adversely affects You, you may promptly notify Company in writing detailing your concern. We agree to work in good faith to resolve the issue. If after sixty (60) days we are unable to reach agreement regarding the modification, then at Company’s option, you will either be permitted to continue use of the Services under the previous terms, or we will permit you to terminate this Agreement without penalty; provided that you shall pay all amounts due for use of the Services through the termination date. This is your only remedy and Company’s only obligation for modification to this Agreement. In addition, upon Customer’s request, Company may (in Company’s discretion) add or delete some portion of the Services, without requiring a separately signed agreement, provided that such changes do not increase or decrease the total fees under this Agreement by more than ten percent (10%).
Company reserves the right to modify this Agreement to correct errors and omissions, or substitute Services with reasonably equivalent Services (provided that the change will have no effect on the total fees under the Agreement).
2. General Registration Requirements. If you wish to become a “Member” for access and use of the Service, you must register within the Service. You represent that you are not a minor and are of legal age to form a binding contract, and are not barred from receiving the Services under the laws of the United States or other applicable jurisdiction.You also agree to: (a) provide true, accurate, current and complete information about the Customer as prompted by the registration form available within the Service (the “Registration Data”) and (b) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account(s) and refuse any and all current or future use of the Service (or any portion thereof).
3. Authorized Access – Member Accounts, Passwords and Security. If you register for the Service or otherwise become a Member, you will be required to choose one or more passwords and provide your email address, and you may be asked for additional information regarding your account(s). You are responsible for maintaining the confidentiality of the password(s) and account(s) information, and are fully responsible for all activities that occur under your password(s) or account(s). You agree to (a) immediately notify us (by email to email@example.com, or call us at (603) 395-3511 (7:00 a.m. to 7:00 p.m. EST) of any unauthorized use of your password(s) or account(s) or any other breach of security, and (b) ensure that you log out from your account(s) at the end of each session. Taramala is not liable for any loss or damage arising from your failure to comply with this Agreement.
The Service provides you with access to your data with the expectation of self-maintenance and content updates to be provided by you. You agree not to attempt to access data or take any action to obtain services not intended for you or your use. Tampering, hacking, modifying, or otherwise corrupting or breaching security or authentication measures without proper authorization are explicitly prohibited and will result in immediate termination of this Agreement and the Services, in addition to other legal remedies.
4. Integrated Website. If you have access to or use of an integrated website provided by Taramala, your use of such integrated website is subject to additional fees, terms and conditions, applicable to integrated websites.
5. User Content. You acknowledge and agree that Taramala may access, use, preserve and disclose your account(s) information, including, but not limited to, any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other information or materials (collectively “Content”) you have posted or made available through the Service (together with your Registration Data, collectively referred to as the “User Content”) if required to do so by law or if in Taramala’s reasonable determination, Taramala believes that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; (e) protect the rights, property or personal safety of Taramala, its Members and the public; or (f) otherwise provide you with access to and use of the Service.By submitting User Content of any kind, you agree that you have the right to submit such User Content and that such User Content does not infringe or violate any privacy or other rights of any party. You further agree that you will not upload any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or the Service and that you will be solely responsible for all User Content that you submit to or post within the Service, including the consequences of posting or publishing such User Content. It is strictly prohibited to upload User Content of any kind that contains expressions of hate, abuse, offensive images or conduct, obscenity, pornography, or any material that could give rise to any civil or criminal liability under applicable law or regulations or that otherwise may be in conflict with this Agreement.
6. Security Components. You understand that the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Taramala and/or content providers who provide content to Taramala. You may not attempt to override or circumvent any such security components and usage rules embedded into the Service.
7. Non Commercial Use. The Service may not be used in connection with any commercial purposes, except as specifically approved in writing by Taramala or as provided within the Service. The Service is intended for managing your business information and communicating with your members and/or students. Unauthorized framing of or linking to any part of the Service is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by Taramala from Member profiles and User Content without notice and may result in termination of the Services and this Agreement.
8. Taramala and Third Party Content. The Service contains Content of Taramala (“Taramala Content”), and Content of third party licensors to Taramala, which Content is protected by copyright, trademark, patent, trade secret and other laws, which Taramala Content includes, without limitation, Taramala’s proprietary processes, concepts, and online tools to manage and grow membership-based businesses. By utilizing this Service, you acknowledge and agree that Taramala owns and retains all rights, title and interest in the Taramala Content. Taramala hereby grants to you a limited, revocable, non- transferable, non-sub-licensable license during the term of this Agreement to reproduce and display a single copy of the Taramala Content and any third party Content located on or available through our Service (excluding any software code therein) solely for use in connection with your internal business purposes when accessing and using the Service. Except for User Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, make available, or sell any Content appearing on or through the Service.
10. Payment of Fees; Interest. The fees for the Service provided are posted on our Website and are subject to change without notice. You agree to pay Taramala in advance the applicable fees for the Service provided by Taramala under this Agreement. During the term of this Agreement, Customer’s fees may increase, but shall not decrease, based on Customer’s member count. Unless other arrangements are pre-approved in writing by Taramala, we will bill your account for all fees for the Service due each month, and you hereby authorize Taramala to charge your account for all such fees . Invoices may be sent via email. If for any reason we fail to furnish you with an invoice, you are still obligated to pay in a timely manner. You will provide accurate and complete billing information including legal name, address, telephone number, and billing account (either ACH or payment card) information. If such information is false or fraudulent, we reserve the right to terminate the Service and this Agreement, in addition to seeking any other legal remedies. Taramala is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, rejected payments, etc.) resulting from charges billed by Taramala. You agree to reimburse Taramala for any penalties, fees, overages or charges incurred by Taramala as a result of a rejected charge or payment. Payments made to Taramala under this Agreement are non-refundable. Any charge disputed by you must be disputed in writing within fifteen days after the billing date, or such charge shall be deemed valid. All fees will be paid in U.S. dollars and are due as set forth on our Website or within our Service. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Taramala’s income. Interest charges of one and a half percent (1.50%) per month (or the highest rate permissible under applicable law, if less) will accrue daily on all amounts not received by Taramala when due. In addition, Taramala shall be entitled to block your access to the Services (with or without terminating this Agreement or affecting your obligation to make payments under this Agreement) if you are more than fifteen (15) days delinquent on any payments under this Agreement or any other agreement with Taramala.
11. International Use. Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
13. Copyright Policy. Taramala has in place certain legally mandated procedures pursuant to the Digital Millennium Copyright Act (“DMCA”) regarding allegations of copyright infringement occurring in the Service. Taramala reserves the right in its sole discretion to immediately suspend and/or terminate access to the Service by any user who is alleged to have infringed on the intellectual property rights of Taramala or of a third party, or otherwise violated any intellectual property laws or regulations. Taramala’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Taramala to delete, edit, or disable the material in question, you must provide Taramala with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 Taramala to locate the material; (d) information reasonably sufficient to permit Taramala to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have 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 (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Taramala’s agent for copyright issues relating to the Service at the following:
35 Jampsa Trail,
Nottingham, NH 03290
Attn: Office of Privacy
Or call: 603-395-3511
If you believe that any User Content that you submitted through the Service and was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such User Content, you may send a counter- notice containing the following information to Taramala’s agent for copyright issues: (a) your physical or electronic signature; (b) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or misidentification; and (d) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the appropriate federal court in Birmingham, New Hampshire, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by Taramala’s agent for copyright issues, we may send a copy of the counter- notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, Member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Taramala’s sole discretion.
14. Term and Termination.
a. This Agreement shall remain in full force and effect until terminated in accordance with this Agreement. This Agreement shall automatically renew for additional successive terms of equal length to the immediately preceding term, unless either Party provides notice to the other of non-renewal at least 30 days prior to the end of the then existing term. You may terminate your membership to the Service in accordance with Sections 14(b)and 14(c) below. Taramala cannot provide refunds for memberships that are terminated early in the middle of the billing period. Taramala reserves the right to terminate your account(s) or your access to the Service immediately, with or without notice to you, and without liability to you, if you have breached any of the conditions of this Agreement, furnished Taramala with false or misleading information, or interfered with use of the Service by others. Sections 5, 8 – 18, 20 – 29, and 31 – 37 will survive the expiration or termination of this Agreement. Upon expiration or termination, your data (including User Content) will no longer be accessible through the Service.
b. If under a monthly renewing subscription agreement, you may terminate your membership to the Service at any time by providing 30 days advanced notice via the Cancellation Request Form. The Cancellation Request Form can be obtained by contacting our Support Team at firstname.lastname@example.org. For example, if you would like to cancel your Service on June 30, then you will need to complete the Cancellation Request Form by May 30. You agree to pay all fees due through the effective date of termination.
c. If under an annual renewing subscription agreement, you are bound to twelve (12) monthly payments and cannot terminate your membership to the Service prior to the completion date of the contract. In the event of any early termination, you agree to pay a cancellation fee (the “Cancellation Fee”) equal to the full price monthly fees (based on the active member count as of the date of the requested cancellation through the original completion date of the annual contract) times the number of months remaining in the then-current term. The Cancellation Fee will be due and payable in one lump sum charged to the billing method stored within the Service. Your annual subscription contract agreement will automatically renew each year for additional successive one (1) year terms, unless you contact Taramala at least 30 days prior to the completion date of the contract requesting to move to the current pricing structure for monthly renewing subscription agreements or to cancel after your contract end date. All cancellation requests should be submitted using the appropriate Cancellation Request Form. The Cancellation Request Form can be obtained by contacting our Support Team at email@example.com.
15. Disclaimer of Warranties. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TARAMALA AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE “TARAMALA PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICE AND ANY THIRD PARTY WEBSITES OR SOFTWARE WITH WHICH THEY ARE LINKED.
The Taramala Parties are not responsible for any health problems that may result from training programs, exercises, drills (alone or with a partner), products, or events you learn about on the Service, or any action or inaction on your part as a result of information you have obtained from the Service. If you engage in any exercise or martial arts program you receive through the Service, you agree that you do so voluntarily at your own risk, and agree to release and discharge the Taramala Parties from any and all claims or causes of action, known or unknown, arising out of your use of the exercise program or the Service.
THE TARAMALA PARTIES MAKE NO, AND EXPRESSLY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES); (III) REGARDING ANY RESULTS YOU MAY OBTAIN FROM THE USE OF THE SERVICE; AND (IV) THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. THE TARAMALA PARTIES DO NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE OR THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL. TARAMALA IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OF YOU OR OTHERS RELATING TO THE TRANSMISSION OF USER CONTENT OR SENSTIVE INFORMATON BY YOU.
16. LIMITATION ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL THE TARAMALA PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF THE SERVICE, OR ANY WEBSITES OR SOFTWARE WITH WHICH THEY ARE LINKED, EVEN IF ANY OF THE TARAMALA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGGREGATE LIABILITY OF THE TARAMALA PARTIES TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO TARAMALA PARTIES FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM.
17. Exclusions and Limitations. Some jurisdictions do not allow or limit the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability and exclusions may not apply to you; you agree that the limitations of liability and exclusions herein shall apply to the fullest extent allowed by applicable law; and in the event the limitations and exclusion provisions are found to be inapplicable or unenforceable, all other provisions of this Agreement remain in full force and effect.
18. Indemnity. You agree to indemnify, defend, and hold harmless the Taramala Parties from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from (a) your breach of the terms and conditions of this Agreement, or (b) your infringement, or infringement by any other user of your account(s), of any intellectual property or other right of any person or entity, or (c) any act or omission by you in connection with collecting, using or disclosing User Content or Sensitive Information, or your failure to obtain necessary consents and permissions from consumers in compliance with your obligations under this Agreement. Taramala will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
19. Additional Terms. We may also require you to follow additional rules, guidelines or other conditions (“Additional Terms”) in order to participate in certain promotions or activities available through our Service, to obtain certain premium Content through our Website and Services, or for other reasons. These Additional Terms will be posted on the relevant portions of our Website and Service or on the portions of our Website and Service that describe the specific promotions, Content, or activities. These Additional Terms are part of this Agreement, and you agree to comply with them when you participate in those promotions, purchase items from our online stores, or otherwise engage in activities governed by such Additional Terms. In the event of a conflict between the Additional Terms and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and control.
20. Modification and Discontinuation of Service. We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently, the Service (or any portion thereof) with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Service. You agree that you are solely responsible for backing up your User Content and other data that may be stored or input in connection with the Service.
21. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Taramala as a result of this Agreement or use of the Service.
22. Confidential Information. From time to time one party (the “Receiving Party”) may receive from the other party (the “Disclosing Party”) proprietary and confidential information (“Confidential Information”), including, without limitation, the terms and conditions of this Agreement, financial information, pricing, business plans, usernames, passwords, Taramala Technology, and any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party. The Receiving Party agrees that the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this Agreement. The Receiving Party agrees to use at least the same degree of care that it uses to protect the confidentiality of its own information, but in any event, no less than a reasonable degree of care. The nondisclosure obligations set forth in this paragraph shall not apply to information that the Receiving Party can document (i) is generally available to the public (other than through breach of this Agreement), or (ii) was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party, or (iii) was obtained by the Receiving Party from a third party without a breach by the third party of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. “Taramala Technology,” for purposes of this Agreement, means the proprietary technology of Taramala, including hardware designs, algorithms, software, software tools, user interface designs, architecture, class libraries, objects, documentation, know-how, trade secrets, and any related intellectual property rights, and also including any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice, or developed by or on behalf of Taramala (including, without limitation, any Feedback), whether during the term of this Agreement or otherwise.
Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with (a) prompt written notice if such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
As between Taramala and Customer: (i) Taramala shall own all Taramala Confidential Information and, except as expressly provided herein, Customer shall not have any right, title, or interest therein; and (ii) Customer shall own all Customer Confidential Information and, except as expressly provided herein, Taramala shall not have any right, title, or interest therein.
23. Title to Products and Services. All title to equipment and software licenses provided by Taramala for performing the Services are the property of Taramala or its licensors, and remain the property of Taramala or its licensors during and after the term of this Agreement. This Agreement is a services agreement and is not intended to and will not constitute a lease or sale of real or personal property. No title, intellectual property rights or copyright in the software or in any modifications of the software shall pass to the Customer under any circumstances. The software is licensed, not sold. To the extent that Customer provides Taramala with any feedback relating to the Services (including, without limitation, with respect to any software related thereto, and any feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Taramala or its licensors (as appropriate) shall own all right, title and interest in and to such Feedback (and customer hereby makes all assignments necessary to achieve such ownership).
Except as otherwise permitted in this Agreement, Customer shall not: (i) modify, translate, or create derivative works based on the Services; (ii) frame or mirror any content contained or accessible from the Services, unless expressly authorized in writing by Taramala; (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; or (iv) access or modify the Services in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Services. Furthermore, unless otherwise authorized in writing by Taramala, Customer agrees to access the Services only through the interface that is provided by Taramala for use in accessing the Services. Customer agrees not to use any automated means, including but not limited to agents, robots, scripts, spiders, and screen scraping tools, to access, monitor, download or copy all or any part of the Services, unless Taramala has provided prior written consent. Any unauthorized modification of the Services by you shall void any warranty, if any, provided by Taramala.
24. Choice of Law and Forum; Dispute Resolution. This Agreement and the relationship between you and Taramala shall be governed by the laws of the State of New Hampshire, without regard to its conflict of law provisions. Any claim or dispute arising out of this Agreement, unless otherwise excluded below, shall be determined exclusively by binding arbitration to take place in Rockingham County in the State of New Hampshire. Such arbitration shall be conducted in accordance with the American Arbitration Association rules and before an American Arbitration Association certified Arbitrator. The arbitrator shall be mutually agreed upon by the parties. In the event that a single arbitrator cannot be agreed upon, you shall select an arbitrator, and Taramala shall select an arbitrator, and these two arbitrators will select a third arbitrator. In the event that the two arbitrators selected cannot agree on a third arbitrator, the third arbitrator will be selected by a judge presiding over the circuit court in Rockingham County, New Hampshire. All arbitrators shall be attorneys and shall swear an oath of neutrality. The parties shall each be responsible for initial payment of fifty-percent (50%) of any arbitration fees but the losing party to the arbitration shall be responsible to reimburse the prevailing party’s costs, expenses and arbitration fees, including, without limitation, reasonable attorneys’ fees.The Federal Arbitration Act (“FAA”), not state law, controls and applies to the arbitration of any non-excluded dispute between the parties, and shall govern all aspects of the arbitration. The outcome of any arbitration, including the award of any damages, shall be confidential. The arbitrator will not have authority to award any punitive or exemplary damages, or any penalties, relating to any dispute arbitrated or litigated. The scope of the depositions, requests for production and the extent of the parties’ obligations to respond will be governed by the Federal Rules of Civil Procedure.
Notwithstanding the foregoing, the following claims and disputes (“Excluded Disputes”) are not subject to binding arbitration: (1) any non-equitable claims or disputes in which Taramala is seeking to collect past-due amounts under the Agreement with an amount in controversy less than $75,000 and (2) any claim for a temporary restraining order, injunction, specific performance and/or any other equitable relief. The parties specifically agree that non-equitable claims or disputes described in subpart (1) above shall be resolved exclusively in the court of appropriate jurisdiction in Rockingham County, New Hampshire and shall be governed by the rules of procedure and evidence for civil cases for the State of New Hampshire without reference to the choice of law principles of any other state. The parties specifically waive the right to bring such non-equitable claims or suits in any other jurisdiction and/or venue. The parties also agree that the damages awarded, if any, in any litigation conducted pursuant to this Agreement shall be determined in accordance with the state law of New Hampshire.
The Customer further acknowledges that a breach or threatened breach of the Agreement by the Customer or its representatives may cause irreparable harm to Taramala for which monetary damages would not be an adequate remedy. As such, Customer agrees that in the event of a breach or a threatened breach by Customer or its representatives, Taramala shall, in addition to any and all other rights and remedies available at law (which are not waived by the exercise of any rights hereunder), be entitled to seek a restraining order, injunction, specific performance and/or any other equitable relief available from a court of competent jurisdiction, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
The prevailing party in any Excluded Dispute shall be entitled to be reimbursed for its costs and expenses, including, without limitation, reasonable attorneys’ fees.
25. Waiver and Severability of Terms. The failure of Taramala to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction or in arbitration to be invalid, the parties nevertheless agree that the court or arbitrators should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
26. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action against Taramala arising out of or related to use of the Service or this Agreement must be brought by you in accordance with the dispute resolution provisions of this Agreement within one (1) year after such claim or cause of action arose or be forever barred.
27. Database Administration. Administrative rights to the database shall be granted to the person designated by the Taramala customer (e.g., the business entity entering into this Agreement). Such rights can be delegated to or revoked from another administrator at the request of the business owner or at the time of set- up of the database. In the case of any conflict related to administrative rights, the business owner shall have all authority to add or remove administrative rights to any user. In the case where the business is owned in equal parts by two or more owners, authority shall be assigned to the managing director or other assigned decision maker according to the then current corporate papers. If the decision making authority is not clear in Taramala’s discretion, changes in database ownership will only be made with written authorization from a majority of participating business owners or other method in writing as established in the corporate papers. Taramala may, at Taramala’s sole discretion, request documentation establishing to Taramala’s satisfaction the current database owner prior to transferring administrative rights. You agree that Taramala shall have no liability to you, and you hereby release Taramala from, any liability related to the transfer of administrative rights in accordance with this section.
28. Assignment. You shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of Taramala. In the event of a change in control, sale of the business, merger, acquisition or other purchase or sale of Customer’s business (“Transfer”), Taramala may require evidence of such Transfer in the nature of a purchase agreement, legal proof of sale documentation, a written release, or other acceptable documentation from the former owner requesting assignment of this Agreement and transfer of rights prior to consenting to any such Transfer.
29. Credits. Taramala will not provide cash refunds. No credits will be provided for requests for cancellations or termination of annual or monthly subscription contracts.
30. Overburdening Resources. You may not overburden the Service. You may not place excessive burdens on Taramala’s, or the providers of Third Party Services’, CPUs, servers or other resources or interfere with the services we provide to other customers. Excessive burden includes, but is not limited to, excessive bandwidth or data transfer.
31. Laws & Harmful Content. You may not use the Services to violate any local, state or federal law or regulation. In particular, and without limitation, you may not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica, non-consensual sex acts; illegal gambling; defamation, harassment or libel; false advertising; slander or transmission of malicious code or to gain access to other networks. Further, you may not use the Services in connection with any content that we reasonably believe: promotes, incites or threatens violence; contains harassing content or hate speech; is defamatory or violates a person’s privacy; infringes on another person’s copyright, trade or service mark, patent or other property right; constitutes illegal arms trafficking; or, is likely to result in retaliation against Taramala’s system, network or employees, including behavior that results in a server being the target of a denial of service attack.
32. Taramala Use of User Content. Taramala acknowledges that the User Content belongs to you, and that Taramala will access, copy or use the User Content only for authorized purposes. You represent and warrant that you have all rights and authority to the User Content to grant the rights and approvals in this Agreement, and that you approve and grant to Taramala the non-exclusive, non-terminable, royalty-free license to access, copy, use, modify, create derivative works of, and distribute the User Content in connection with the following activities to which you consent: (i) to perform the Services under this Agreement, (ii) to diagnose, monitor and optimize the performance of the Services, (iii) to compile and aggregate statistical data provided that (a) Taramala agrees to maintain as confidential and not disclose to any third party any User Content identifying an individual consumer (except as otherwise permitted as necessary to provide the Services), and (b) Taramala will use the User Content solely to create analyses in aggregated or derivative form in a manner that does not permit identification of you, your employees, or individual consumers, and (iv) for any other access or use to which you expressly consent. Any aggregate non-identifiable data compiled or collected by Taramala shall be “Derivative Data” owned by Taramala under this Agreement, and not subject to the foregoing limitations. “Derivative Data” shall also include all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from User Content or on the basis of Customer’s use of the Services.
33. FTC Safeguards Rule. The Federal Trade Commission (“FTC”) Standards for Safeguarding Customer Information (16 CFR Part 314)(the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (“GLB”) Act. The Safeguards Rule, effective May 23, 2003, requires those parties to secure records and information from and about customers.
This section applies to the extent you are subject to the Safeguards Rule, you share with us your “customer Information” (as defined in the Safeguards Rule), and in circumstances in which we are a “Service-Provider” (as defined in the Safeguards Rule).Taramala will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of your Customer Information (as defined in the Safeguards Rule). It is your responsibility to: (i) disclose to us any relevant risks you identify regarding your Customer Information; and (ii) identify the employee(s) who coordinate your information security program.
You are solely responsible for your compliance obligations under the Safeguards Rule. Taramala’s provision of products and services to you does not constitute and shall not be deemed to be a guarantee that your business is in compliance with any statute or regulation. Taramala’s review or approval of any of your systems, applications, processes, forms, or procedures does not constitute and shall not constitute the assumption by Taramala of any responsibility or liability for compliance by you with any statute or regulation.
You agree that you and third parties acting on your behalf have no right or authority to access or audit Taramala’s systems, applications, processes, procedures or practices, except to the extent specifically authorized by Taramala.
If you believe Taramala’s efforts to safeguard Customer Information affects you in a materially adverse manner and you promptly notify Taramala in writing, stating the basis of your belief, Taramala will work with you in good faith to resolve the issue. If after sixty (60) days we are unable to resolve the issue, then, at Taramala’s option, we will either permit you to discontinue the affected Services without liability, or you will submit to binding arbitration as described below. You shall pay all amounts incurred and remain otherwise fully obligated for any Services up through the effective date of such discontinuance or arbitration decision. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY AND TARAMALA’S ONLY OBLIGATOIN UNDER THIS SECTION.
34. Consumer Communications. The federal government and many states and local jurisdictions have enacted regulations limiting commercial telephone, text, email and fax communications, including laws regarding opt-in and opt-out required for commercial communications. Customer represents and warrants that all email addresses used in connection with the Services have been and will be properly obtained and Customer shall follow all provisions of the CAN-SPAM Act (USA), the Telephone Consumer Protection Act (USA), or all Canadian Radio-television and Telecommunications Commission (CRTC) regulations (Canada) and any other applicable laws regarding consumer communications in any applicable jurisdiction. To the extent that Taramala may perform Services which involve contacting consumers on your behalf, You agree it is your responsible to obtain all necessary consents and provide Taramala with all consumer preference information (such as an opt-out) required to ensure that Taramala does not contact consumers in violation of such regulations.
35. Back-up / Retrieval of User Content. Consult with your own legal, tax, accounting or other advisor for guidance on document and data retention policies applicable to you records. Taramala does not provide you with guidance on document and data retention policies applicable to your records or the User Content. Taramala does not provide you with advice regarding the sufficiency of your document and data retention policies. You are solely responsible for maintaining any back-up of User Content or other documents or data you may provide to Taramala in connection with the Services.
As long as you have paid all fees owed to Taramala, during the term of this Agreement, if you delete User Content during the term of your subscription, upon written request, Taramala will use reasonable commercial efforts to restore, or we will provide you with copies of, the requested User Content then in our possession or control, subject to payment of the data restoration fee which will be set forth in the fees section of the Taramala website.
Upon any termination or expiration of this Agreement, upon request, Taramala agrees to provide Customer with an export of User Content then in Taramala’s possession in accordance with Taramala’s data release policy and subject to payment of the then-current customer exit data export fee.
36. Questions. If you have any questions regarding this Agreement, please contact us by email at firstname.lastname@example.org, by phone at (603) 395-3511 (7:00AM – 7:00PM EST M-F).
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