MY GAME CHANGER, INC.
Last Updated Date: July 6, 2020
The My Game Changer, Inc. dba Terawatt website provides a marketplace for instructors and people seeking change. The website, and any other website of My Game Changer, Inc.. dba Terawatt (“Terawatt,” ”us” or “we”), its affiliates or agents (collectively, the “Website”) provides Coaches (as defined in Section 7.3) with leads and tools to assist people seeking change (“Students”) including (i) introductions to potential clients, (ii) technology for live video classes, (iii) scheduling and payment technology, and (iv) marketing assistance. The term “User” refers to any individual or legal entity who registers on or accesses the Website or uses the Services, including without limitation, Students and Coaches. On the other side of the marketplace, Terawatt provides people interested in change and/or education with an array of classes to learn and interact with peers and experts. The features, functions and services made available by Terawatt, via the Website, mobile or web applications, or other digital products that link to or reference these Terms, are referred to as the “Services.” Some of the Services may require Users to register and pay additional Fees in addition to any applicable Fees.
Please read these Terms carefully. These Terms govern the use of the Website and/or Services and apply to all users visiting the Website by access or using the Website and/or Services in any way. The Services also include any resources available or enabled via the Website.
BY CLICKING ON THE “I AGREE” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, PROVIDING INFORMATION TO TERAWATT AND/OR TAKING STEPS TO ENGAGE WITH TERAWATT AS A COACH (SUCH AS, WITHOUT LIMITATION, SCHEDULING OR MARKETING YOUR CLASSES TO BE OFFERED ON THE TERAWATT PROPERTIES) OR A STUDENT, YOU REPRESENT THAT:
- YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS:
- YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TERAWATT IN THE APPLICABLE JURISDICTION, AND
- YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU (1) REGISTERED ON THE WEBSITE, OR (2) ACCESSED OR USED THE WEBSITE OR THE SERVICES FOR ANY PURPOSE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS, USE OR SUBMIT INFORMATION TO THE WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT THESE TERMS INCLUDE, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT REQUIRES YOU TO SUBMIT TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE SEE SECTION 17 BELOW.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE AND/OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY TERAWATT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made to the Terms, Terawatt will make a new copy of the Terms available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. Terawatt will also update the “Last Updated” date at the top of the Terms. Any changes to the Terms will be effective immediately or on the date set forth in the Terms. Terawatt may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
- Use of the Services and Terawatt Properties. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Terawatt Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Terawatt grants you a limited license to access and use portions of Terawatt Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Terawatt in a separate license, your right to use any Terawatt Properties is subject to the Terms.
- Updates. You understand that Terawatt Properties are evolving. As a result, Terawatt may require you to accept updates to Terawatt Properties that you have installed on your computer or mobile device. You acknowledge and agree that Terawatt may update Terawatt Properties with or without notifying you. You may need to update third-party software from time to time in order to use Terawatt Properties.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Terawatt Properties or any portion of Terawatt Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose or copy any trademark, logo, or other Terawatt Properties (including images, text, page layout or form) of Terawatt; (c) you shall not use any metatags or other “hidden text” using Terawatt’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Terawatt Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Terawatt Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Terawatt Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Terawatt Properties.. Any future release, update or other addition to Terawatt Properties shall be subject to the Terms. Terawatt, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Terawatt Properties terminates the licenses granted by Terawatt pursuant to the Terms.
- No Recording. The Terawatt Properties may provide access to pre-recorded or live coaching sessions and other materials, including slides, modules, exercises, etc. The content, organization, structure, display and performance of these sessions and materials is the sole property of Terawatt and its licensors, and may only be accessed and viewed via the Terawatt Properties. These sessions and materials are intended for your personal use only and You may not, and may not permit or encourage any other person to record, tape, copy, reproduce, share, commercialize or distribute any sessions or materials made available to you via the Terawatt Properties without the express written permission of Terawatt.
- Registering Your Account. In order to access certain features of Terawatt Properties you must become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
- Registration Data. You may register as a Coach or a Student. In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) of legal age to form a binding contract (but no less than eighteen (18) years old or any greater age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of your primary residence); and (2) not a person barred from using Terawatt Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Terawatt Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Terawatt immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Terawatt has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Terawatt has the right to suspend or terminate your Account and refuse any and all current or future use of Terawatt Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Terawatt reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Terawatt Properties without Terawatt’s prior written consent if you have been previously removed by Terawatt, or if you have been previously banned from any of Terawatt Properties.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Terawatt.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Terawatt Properties, including but not limited to, a mobile device that is suitable to connect with and use Terawatt Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Terawatt Properties.
Responsibility for Content and Privacy.
- Types of Content. You acknowledge that all files, materials, data, text, audio, video, images or other content, including Terawatt Properties (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Terawatt, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Terawatt Properties (“Your Content”), and that you and other Users of Terawatt Properties, and not Terawatt, are similarly responsible for all Content they Make Available through Terawatt Properties (“User Content”). User Content includes without limitation, any Content Made Available by Coaches.
- No Obligation to Pre-Screen Content. You acknowledge that Terawatt has no obligation to pre-screen Content (including, but not limited to, User Content), although Terawatt reserves the right in its sole discretion to pre-screen, refuse or remove any Content, either fully or partially. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Terawatt pre-screens, refuses or removes any Content, you acknowledge that Terawatt is doing so for the benefit of Terawatt and/or its Users. Without limiting the foregoing, Terawatt shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by Terawatt in writing elsewhere, Terawatt has no obligation to store any of Your Content that you Make Available on Terawatt Properties. Terawatt has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Terawatt Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Terawatt retains the right to create reasonable limits with respect to access, use and storage of the Content, including Your Content, such as limits on who can access Content, file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Terawatt in its sole discretion.
- Terawatt Properties. Except with respect to Your Content and User Content, you agree that Terawatt and its suppliers own all rights, title and interest in Terawatt Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Terawatt Properties.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Terawatt Properties.
- License to Your Content. Subject to any applicable account settings that you select (if available), you grant Terawatt a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Terawatt Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Terawatt Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Terawatt, are responsible for all of Your Content that you Make Available on or in Terawatt Properties.
- Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Terawatt Properties, you hereby expressly permit Terawatt to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content. Further, by signing up for a Course, you agree that your name, email and phone number may be disclosed to the Coach offering that Course.
- Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Terawatt through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Terawatt has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Terawatt a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Terawatt Properties.
Interactions with Other Users and Coaches.
- User Responsibility. You are solely responsible for your interactions with other Users, including Coaches, and any other parties with whom you interact; provided, however, that Terawatt reserves the right, but has no obligation, to intercede in such disputes. You agree that Terawatt will not be responsible for any liability incurred from any claim, injury or damage resulting as the result of such interactions.
- Content Provided by Other Users. Terawatt Properties may contain User Content provided by other Users. Terawatt is not responsible for and does not control User Content. Terawatt has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
- Coaches. The Terawatt Properties may provide Users with access to coaches and instructors who may provide lectures, video instruction and other information and materials related to their particular area of expertise (“Coaches”). These Coaches are not employees of Terawatt, and act as independent contractors. While Terawatt uses reasonable efforts to vet such Coaches, we do not and cannot guarantee that the advice, analysis, content, guidance, or other information provided by these Coaches will appropriately address or satisfy your needs, interests, or a particular issue, or will otherwise be useful. Further, we do not endorse, promote or recommend any advice, analysis, content, guidance, or other information you obtain from any Coaches. As such, Terawatt disclaims any representations, warranties or guarantees that any advice, analysis, content, guidance, or other information you obtain through the Terawatt Properties from Coaches will appropriately address or satisfy your needs, interests, or a particular issue, or will otherwise be useful.YOU AGREE THAT NONE OF THE TERAWATT PARTIES (AS DEFINED BELOW) WILL BE RESPONSIBLE OR LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN RELATION TO ANY USER CONTENT OR OTHER INFORMATION MADE AVAILABLE BY COACHES. YOUR ACCESS AND UTILIZATION OF SUCH USER CONTENT OR INFORMATION IS AT YOUR OWN RISK.
Third-Party Websites and Third-Party Services
- Third-Party Websites, Applications & Ads. Terawatt Properties may contain links to third-party websites (“Third-Party Websites”) and applications and technologies (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Terawatt Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications, and Third-Party Ads are not under the control of Terawatt, and you agree that it is impossible for Terawatt to monitor such materials. Terawatt is not responsible for any Third-Party Websites, Third-Party Applications, or Third-Party Ads nor the links provided therein, and you access and use such materials at your own risk. Terawatt provides these Third-Party Websites, Third-Party Applications, and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Fees and Purchase Terms.
- Fees and Payments to Coaches. All fees for the Services for which fees are charged (“Fees”) are due and payable by you to Terawatt prior to you accessing or utilizing such Services. Fees for Students paying for Services are set forth in the description of the particular Service. Fees and Payments for Coaches are set forth in the Supplemental Terms Applicable to Payments and Fees for Coaches:. Fees are not refundable by Terawatt, except in extraordinary circumstances, in Terawatt’s sole discretion, but a credit may be provided for cancellation of a service for which a Student has paid (“Cancel” or “Cancellation”) so long as the Cancellation occurs prior to the non-cancellation window. There is a three-day non-cancellation window for all paid Services, meaning that a Student may Cancel up to three days prior to the date that the Service is scheduled to take place. No Cancellations will be honored during the non-cancellation window and no credits will be given except in extraordinary circumstances, in Terawatt’s sole discretion. A credit shall be provided to Students if a Service for which a Student has paid is completely inaccessible due to a technical or coaching default that causes a complete and total inability of any Student to access such Service.
- Payment for Services. We currently partner with Stripe, Inc. (“Stripe”) to manage payments. By using our Services you agree to provide Stripe (or any other third party payment provider designated by Terawatt), accurate, current, complete and authorized information about yourself (and your business if applicable), and your credit, debit or other payment card data. By providing Stripe (or such other payment provider designated by Terawatt) with your payment information, you agree that Terawatt is authorized to immediately charge you for all Fees and charges due and payable to Terawatt hereunder and that no additional notice or consent is required. If any Fee is a set periodic Fee (i.e., monthly charge), You authorize Terawatt to invoice your Account and charge you automatically every period for which payment is due without additional notice to or consent from you. Terawatt reserves the right at any time to change its Fees and/or billing methods, either immediately upon posting on Terawatt Properties or by e-mail delivery to you. You agree to immediately update your payment details in Stripe or any third party payment provider designated by Terawatt if there is any change in your billing address or the credit card used for payment hereunder. We reserve the right to suspend or terminate your account and the Services provided to you if any Fees or charges remain unpaid.
- Taxes. Terawatt’s Fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Terawatt, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Terawatt for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Terawatt is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. Details regarding taxation of payments made to Coaches are set forth in the Supplemental Terms Applicable to Payments and Fees for Coaches.
- Withholding Taxes. You agree to make all payments of Fees to Terawatt free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Terawatt will be your sole responsibility, and you will provide Terawatt with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 317 West Ave, #113022, Stamford, CT 06902.
- Advertising Revenue. Terawatt reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Terawatt has no obligation to you in connection therewith, including, without limitation, any obligation to share revenue received by Terawatt as a result of such advertising.
Disclaimer of Warranties and Conditions.
- AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TERAWATT PROPERTIES IS AT YOUR SOLE RISK, AND TERAWATT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TERAWATT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES.
- TERAWATT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) TERAWATT PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF TERAWATT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF TERAWATT PROPERTIES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH TERAWATT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS TERAWATT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TERAWATT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TERAWATT OR FROM ANY THIRD PARTY, INCLUDING ANY COACHES, THROUGH TERAWATT PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, NOR DOES TERAWATT GUARANTY OR WARRANT THAT ANY OF THE TERAWATT PROPERTIES WILL PRODUCE ANY DESIERED OUTCOME OR ACHIEVE ANY INTENDED RESULT.
- FROM TIME TO TIME, TERAWATT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT TERAWATT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
LIMITATION OF LIABILITY.
- DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TERAWATT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH TERAWATT PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TERAWATT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF TERAWATT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE TERAWATT PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH TERAWATT PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON TERAWATT PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO TERAWATT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TERAWATT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TERAWATT PARTY’S WILLFUL MISCONDUCT; OR FOR (B) ANY INJURY CAUSED BY A TERAWATT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- CAP ON LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL TERAWATT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF THE TOTAL AMOUNT PAID TO TERAWATT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TERAWATT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TERAWATT PARTY’S WILLFUL MISCONDUCT; OR FOR (B) ANY INJURY CAUSED BY A TERAWATT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TERAWATT AND YOU.
Procedure for Making Claims of Copyright Infringement.
- Terawatt respects the intellectual property rights of our Users and third parties. It is Terawatt’s policy, in appropriate circumstances and in its discretion, to suspend, disable or terminate the Accounts of Users who repeatedly infringe the copyright of others upon prompt notification to Terawatt 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 Terawatt Properties in a way that constitutes copyright infringement, please notify our Designated Copyright Agent using the contact information provided below (“Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
- All Notifications should include 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) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and a description of the location on Terawatt Properties of such material that is reasonably sufficient to permit us to locate the material; (4) your address, telephone number and e-mail 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 Terawatt’s Designated Copyright Agent for notice of claims of copyright infringement is as follows: Francis Jain, Copyright Agent, Address: 317 West Ave, #113022; Stamford, CT 06902 Email: [email protected].
Other Intellectual Property Rights Infringement
- In your use of the Website or Services, you agree not to display or use in any manner inconsistent with the rights of Terawatt or third parties any (i) trademark, service mark, logo, design, insignia, trade dress, slogan, or other brand features, either registered under the laws of the United States or any other country or jurisdiction, or unregistered and existing at common law, belonging to Terawatt or any third party, or (ii) any text, image, video, or other item of content, that violates any other intellectual property right of any third party, including, without limitation, any right of privacy or publicity, unless you obtain Terawatt’s or such third party’s prior written permission, as applicable.
- Terawatt reserves the right to remove any Content (including User Content) that allegedly infringes another party’s trademark, service mark or other intellectual property right. Notices to Terawatt regarding any such alleged infringement should be directed to Terawatt via email at: [email protected] and shall include all the same information required to be included in any copyright infringement notice as set forth in the Procedure for Making Claims of Copyright Infringement” section above.
- If we remove Your Content because of an infringement report provided to us pursuant to this section, you will receive a notification from us that includes the name and email address of the rights holder who made the report and/or the details of the report. If you believe Your Content should not have been removed, you can follow up with the rights holder directly to try to resolve the issue. You agree that Terawatt disclaims any liability for claims you might make regarding mistaken or misidentified trademark infringement notice and takedown requests.
- Violations. If Terawatt becomes aware of any possible violations by you of the Terms, Terawatt reserves the right to investigate such violations. If, as a result of the investigation, Terawatt believes that any criminal or other unlawful activity has occurred, Terawatt reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Terawatt is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Terawatt Properties, including Your Content, in Terawatt’s possession in connection with your use of Terawatt Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Terawatt, its Users or the public, and all enforcement or other government officials, as Terawatt in its sole discretion believes to be necessary or appropriate.
- II. Breach. In the event that Terawatt determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Terawatt Properties, Terawatt reserves the right to do any or all of the following:
- Warn you via e-mail (to any e-mail address you have provided to Terawatt) that you have violated the Terms;
- Delete any of Your Content provided by you or your agent(s) to Terawatt Properties;
- Discontinue your Account and/or other registration(s) with any of Terawatt Properties, including any Services or any Terawatt community;
- Discontinue your access to any Services;
- Notify and/or send Content, including your Content, to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action, which Terawatt deems to be appropriate.
Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Terawatt Properties, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used Terawatt Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Terawatt Properties (whichever is earlier) and will remain in full force and effect while you use Terawatt Properties, unless earlier terminated in accordance with the Terms.
- Termination of Services by Terawatt. If (1) timely payment cannot be charged to your Payment Method for any reason, (2) you have breached any provision of the Terms, (3) Terawatt is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), or (4) if Terawatt deems necessary in the interest of Terawatt and/or its Users, Terawatt has the right to, immediately and without notice, suspend or terminate your Account and/or any Services provided to you. You agree that all terminations for cause shall be made in Terawatt’s sole discretion and that Terawatt shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Terawatt, you may do so by (a) notifying Terawatt at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Terawatt's address set forth below. TERAWATT SHALL NOT BE REQUIRED TO TERMINATE YOUR ACCOUNT OR ACCESS TO SERVICES UNLESS IT RECEIVES A WRITTEN NOTICE FROM YOU IN ACCORDANCE WITH THE TERMS OF THIS SECTION.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of your Account includes termination of all Services and deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Terawatt will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. Further, Terawatt shall not be liable to refund, return or provide credits in lieu of any Fees or charges paid by you to use and access the Service, except as set forth in Section 9.1 above. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with or ability to access Terawatt Properties, or any other Terawatt community is discontinued by Terawatt due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Terawatt Properties or any Terawatt community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for Fees related to those Terawatt Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Terawatt reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Terawatt and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Terawatt, 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 Terawatt 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 this Agreement or any prior version of this Agreement.IF YOU AGREE TO ARBITRATION WITH TERAWATT, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TERAWATT ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST TERAWATT 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 THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
- 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 Cogency Global, 850 New Burton Rd Ste 201, Dover, DE 19904. 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, Terawatt will pay them for you. In addition, Terawatt 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. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- 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 Terawatt. 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 the Agreement (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.
- Waiver of Jury Trial. YOU AND TERAWATT 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 Terawatt are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above in this Section. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement 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.
- 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 a court as set forth in Section 19.7.
- 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: Terawatt, 317 West Ave, #113022, Stamford, CT 06902,within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Terawatt username (if any), the email address you used to set up your Terawatt 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 this Agreement 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.
- 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Terawatt.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Terawatt 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 Terawatt.
- Electronic Communications. The communications between you and Terawatt use electronic means, whether you visit, post on, or submit information through Terawatt Properties or send Terawatt e-mails, or whether Terawatt posts notices on Terawatt Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Terawatt in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Terawatt provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Terawatt 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 interactions (whether online or offline) with other Users of, or use or reliance on any advice opinions, endorsements, suggestions, third party content or other information available on or via, the Terawatt Properties, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Terawatt Properties.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Terawatt’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Terawatt 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.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Terawatt Properties, please contact us at: (800) 370-7574. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Equitable Relief. You acknowledge and agree that a breach or threatened breach of certain of these Terms, including without limitation, those contained in Sections 1.3, 4 and 5, may cause Terawatt irreparable harm for which monetary damages would not be an adequate remedy, and you agree that, in the event of such breach or threatened breach, Terawatt will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Terawatt agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, 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.
- Notice. Where Terawatt requires that you provide an e-mail address, you are responsible for providing Terawatt with your most current e-mail address. In the event that the last e-mail address you provided to Terawatt is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Terawatt’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Terawatt at the following address: 317 West Ave, #113022, Stamford, CT 06902. Such notice shall be deemed given when received by Terawatt by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Entire Agreement. The Terms are 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.
End of Terms