Professional Education Terms of Service

Professional Education Terms of Service

Last Updated: June 9, 2021

We at Mind InFormation®, Inc. (“we”) provide access to and use of certain of our professional education videos, course materials, qualification exams and related content as specified in your service order or otherwise at registration (collectively, “Course Materials”) through our website https://courses.lexercise.com (including any successor or alternate URL we have provided for this purpose from time to time, our “Website,” and together with the Course Materials the “Lexercise Materials”), subject to the terms and conditions of this agreement (this “Agreement”). “You” are either (i) an individual participant, trainee or therapist accessing (and, where applicable, paying for) our Lexercise Materials directly for your own personal use, (ii) an organization (such as a college, university or other institution of higher education) that has registered to access and use the Lexercise Materials in conjunction with providing instructional services to your individual students, employees or other constituents (an “Organization”), or (iii) an individual student, employee or other constituent of an Organization where the Organization has procured and (where applicable) paid for you to access our Lexercise Materials in connection with instructional services you are receiving from the Organization (a “Student”).

THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR ACCESS TO AND USE OF THE LEXERCISE MATERIALS AND FORM A BINDING LEGAL AGREEMENT BETWEEN YOU AND US. BY EXECUTING A SERVICE ORDER WITH US OR OTHERWISE REGISTERING TO USE THE LEXERCISE MATERIALS (INCLUDING, IF APPLICABLE, BY CLICKING TO “ACCEPT” OR “AGREE” TO THIS AGREEMENT WHEN THIS OPTION IS PRESENTED TO YOU, OR BY OTHERWISE ACCESSING AND USING THE LEXERCISE MATERIALS), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU ACCEPT THIS AGREEMENT AND AGREE YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, YOU REPRESENT AND WARRANT TO US THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF AN AGE WHERE YOU CAN FORM A LEGALLY BINDING CONTRACT IN YOUR JURISDICTION. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN ORGANIZATION, THE INDIVIDUAL REGISTERING TO USE THE LEXERCISE MATERIALS ON YOUR BEHALF REPRESENTS AND WARRANTS TO US THAT HE OR SHE IS FULLY AND DULY AUTHORIZED TO AGREE TO BE BOUND BY THIS AGREEMENT ON YOUR BEHALF. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT EXECUTE A SERVICE ORDER WITH US OR OTHERWISE REGISTER TO USE THE LEXERCISE MATERIALS AND DO NOT OTHERWISE ACCESS OR USE THE LEXERCISE MATERIALS.

Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Via a conspicuous posting on the Website or via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. If you do not agree with any changes we make to this Agreement, you may exercise your right to cancel our contract as described below in Section 7.b. Otherwise, changes to this Agreement are effective immediately when we post them, and your continued use of the Lexercise Materials following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the Lexercise Materials if you do not want to agree to the revised Agreement.
Right to Access and Restrictions.
1. Authorization. So long as you otherwise comply with this Agreement, we authorize you, for the subscription period set forth in your service order or otherwise specified at registration only and on a non-exclusive and non-transferable basis, to access and use the Course Materials through our Website, solely for your own Educational and Instructional Purposes (as defined below), solely in the form in which we have provided the Course Materials and the Website to you, and subject to any additional limitations or restrictions set forth in your service order or otherwise specified at registration. For purposes of this Agreement, “Educational and Instructional Purposes” means (i) if you are an individual, for your personal, non-commercial educational and instructional use, and (ii) if you are an Organization, in conjunction with providing instruction for that number of your individual Students for which you have paid the applicable fees to us. You may additionally use the Website’s built-in features (where offered and available) to print or download a reasonable number of copies of our written course materials included as a part of the Course Materials incidental to (and as strictly necessary for) your own Educational and Instructional Purposes.
2. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Lexercise Materials. You must not, and you must not permit any other person or entity to, access or use the Lexercise Materials except as we’ve specifically allowed in this Agreement and, in the case of any third-party materials (including open source components) (“Third-Party Materials”) we provide to you directly or along with the Lexercise Materials, as allowed in the applicable third-party license agreement. Except as we have specifically permitted in this Agreement, you must not do any of the following:
  1. copy, modify, adapt, translate or create derivative works or improvements of the Lexercise Materials;
  2. make the Lexercise Materials available (e.g., rent, sell, sublicense, distribute or transfer) to any other person or entity, including through any time-sharing, service bureau or software as a service arrangement;
  3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Website or the underlying structure, ideas, know-how or algorithms relevant to the Website;
  4. input, upload, transmit or otherwise provide to or through the Website any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, malware, disabling code or other malicious software or code;
  5. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by our Lexercise Materials;
  6. disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Lexercise Materials, including their ability to engage in real time activities through the Website;
  7. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner our Website or our ability to provide services to any third party;
  8. access or use the Lexercise Materials in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries);
  9. access or use the Lexercise Materials for purposes of benchmarking or competitive analysis, developing, producing, marketing, distributing, licensing or selling any product or service that may compete with our Lexercise Materials, or disclosing to our competitors, for any purpose, otherwise non-public information about our Lexercise Materials;
  10. use any manual process (such as taking screenshots, printing, downloading or otherwise capturing) or automatic process (such as using robots, spiders or other automatic devices) that is not already offered as a feature or functionality of the Website (i.e., Print or Download features built into the Website) to monitor or make a copy of any Course Materials or any other materials on the Website without our prior written consent;
  11. cause the Lexercise Materials or portions of them to be displayed, or appear to be displayed by framing, deep linking or in-line linking, on any other site;
  12. delete or alter any copyright, trademark or other proprietary rights notices from copies or materials from the Lexercise Materials;
  13. access or attempt to access any professional education videos, course materials, qualification exams and related content available on our Website other than the Course Materials specified in your service order or otherwise at registration; or
  14. knowingly aid or assist any person or entity in taking any of the actions prohibited by this Section 2.b.
  You must immediately notify us should you learn that you or any other person or entity has taken any action prohibited by this Section 2.b. For the avoidance of doubt, if you violate any of the foregoing prohibitions, your right to access and use the Lexercise Materials will cease immediately. Any such violation may violate copyright, trademark and other laws.
3. Suspension of Access. We may suspend or deny your access to or use of all or any part of the Lexercise Materials without any liability to you or others, if (i) we are required to do so by law or court order, (ii) you have accessed or used the Lexercise Materials beyond the scope of the rights granted under or otherwise in violation of this Agreement (including a failure to comply with the limitations and restrictions described in Section b above), (iii) you have been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Lexercise Materials, or (iv) you have otherwise failed to comply with this Agreement. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 7 or any other rights or remedies under this Agreement, at law or in equity.
4. Admin User. If you are an Organization, you will additionally be granted access to and use of one or more administrative user accounts in connection with the Website which you may use to monitor and manage your individual Students’ accounts and use of the Lexercise Materials. You expressly agree not to use this administrative user account (or attempt to use this administrative user account) in any way to access or view any information about any other users of the Lexercise Materials beyond your own individual Students.
5. Student Access. If you are an Organization, you acknowledge and agree that each of your individual Students must review and agree to this Agreement prior to accessing or using the Lexercise Materials, and your Students’ access to and use of the Lexercise Materials is expressly conditioned on each Student’s prior acceptance of this Agreement. Notwithstanding the foregoing, however, you will ensure your Students comply with this Agreement in all respects and you agree you are fully responsible and liable for any act, omission or violation of this Agreement by your Students as it relates to the Lexercise Materials, this Agreement or any of the subject matter hereof the same as if you had committed such act, omission or violation of this Agreement yourself. You must not provide access to or use of the Lexercise Materials to any Students for whom you have not paid the applicable fees.
6. Lexercise® Therapist Platform. Any access to or use of the Lexercise® Therapist Platform or interactions with any Clients in connection therewith (each as defined in the Therapist Terms of Use, as defined below) shall be subject to and governed by (and is expressly conditioned on the applicable user’s acceptance of) the terms and conditions set forth in Lexercise® Individual Therapist Terms of Use accepted and agreed to at the time of registration for the Lexercise® Therapist Platform (the “Therapist Terms of Use”).
7. Trademarks. The LEXERCISE® word mark, our stylized “LEXERCISE” logo (also a registered trademark) and all other names, marks, logos, product and service names, designs and slogans used as trademarks by us on the Lexercise Materials are our trademarks or those of our affiliates or licensors. You must not use such marks without our prior written permission.
Using the Website and Course Materials.
1. Accessing the Website. We strive to provide a reliable and useful experience when using our Website, but we do not guarantee that our Website (or the Course Materials available on the Website) will be available at any specific time or that it will be free of errors, and we will not be liable for any reason if you cannot access the Website or if an error in the Website hinders any of its features or functionality.
2. Changes to the Lexercise Materials. We may update or change the Lexercise Materials from time to time in our sole discretion, to make improvements to the Lexercise Materials or for any other reason we deem appropriate, but you acknowledge and agree that the content of the Lexercise Materials is not necessarily complete or up-to-date. Any of the Lexercise Materials may be out of date at any given time, and we are under no obligation to update the Lexercise Materials.
3. Account Security. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the Lexercise Materials. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the Lexercise Materials without proper user name and password is strictly prohibited, constitutes a breach of this Agreement which may result in the termination of your right to use the Lexercise Materials, and may violate copyright and other laws.
4. Collection and Use of Your Information. All information we collect about individuals via the Website is subject to our Lexercise® Professional Education Privacy Policy, which may be reviewed by visiting https://www.lexercise.com/about/legal/professional-education-privacy-policy (the “Privacy Policy”). BY USING THE LEXERCISE MATERIALS, OR BY REGISTERING TO ACCESS AND USE THE LEXERCISE MATERIALS, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY OUR PRIVACY POLICY. If you do not agree to our Privacy Policy, you must not (and, where applicable, your Students must not) provide us with any personal information.
5. Responsibility for Your Data. If you are an Organization, in connection with our provision of the Lexercise Materials to you, you may choose to provide to us information of or concerning your business or information (including personally identifiable information) of and about you and your Students (“Your Data”). You acknowledge and agree that you are solely responsible for any of Your Data that you submit to the Website, including its legality, accuracy and appropriateness. You represent and warrant to us that you own, or have the legal right to use and permit us to access and use as contemplated any of Your Data that you provide to us (including any such data that you upload through the Website). As between you and us, and subject to our responsibility to comply with the Privacy Policy, you are solely responsible for: (i) providing all required notices and securing all rights, permissions and consents necessary to grant us access to or use of any personal information included with Your Data, (ii) ensuring that the use of any personal information in connection with your use of the Lexercise Materials complies with your own privacy policy, user agreements and terms of service, and (iii) all activities that occur by and through your account. You must comply with all applicable local, state, provincial, federal, foreign or international laws, rules and regulations in connection with your use of the Lexercise Materials. You agree that under no circumstances shall we be obligated to process (and you shall not require or request us to process) any of Your Data in a manner that is inconsistent with the Privacy Policy or applicable laws, rules and regulations.
6. Use Outside of the United States. The Website is hosted in the United States and is provided from the United States. It is possible that certain information will be stored on servers in multiple other countries on the “cloud” or other similar distributed hosting platforms. If you are accessing the Website from the European Union, Asia or any other region with laws governing personal information collection, use, and disclosure that differ from United States laws, you are expressly and knowingly consenting to the transfer of all personal information to the United States and other jurisdictions as indicated above, and to our use of such personal information in accordance with our Privacy Policy. Each individual accessing the Website from anywhere outside of the United States is required to refer to our additional “International User Privacy Disclosure” http://www.lexercise.com/about/legal/privacy-international-users and to click “I AGREE” when the option is presented before such individual will be permitted to provide personal information to us via the Website.
7. No Support or Other Services. The Lexercise Materials are offered without customer support services of any kind, and we will not be obligated to provide or perform and customer support services or any other services for you under this Agreement or otherwise with respect to the Lexercise Materials. If from time to time we elect, in our sole and absolute discretion, to provide or perform any customer support services or any other services for you under this Agreement or otherwise with respect to the Lexercise Materials, such provision or performance of services does not create or imply any obligation to continue doing so at any time in the future.
Important Disclaimers.
1. Reliance on Information Posted. The information presented on or through the Lexercise Materials is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information, and any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Lexercise Materials, or by anyone who may be informed of any of its contents. Additionally, the Lexercise Materials may include content provided by third parties, including materials provided by other individuals, non-profit or educational organizations and foundations. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect our opinions. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
2. Links to Other Materials. If the Lexercise Materials contain links or references to other sites, materials or resources provided by third parties, these links and references are provided for your convenience only. We have no control over the contents of those sites, materials or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the linked or referenced third party sites, materials or resources, you do so entirely at your own risk and subject to the terms and conditions of use for such sites, materials or resources.
3. Warranty Disclaimers. ALL LEXERCISE MATERIALS AND ANY OTHER SERVICES ASSOCIATED WITH US OR THIS AGREEMENT OR THE SUBJECT MATTER HEREOF ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR PERSONNEL, SUBCONTRACTORS OR OTHER AGENTS OR REPRESENTATIVES SHALL CREATE A WARRANTY. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER, EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE LEXERCISE MATERIALS OR ITEMS OBTAINED THROUGH THEM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THEM, OR ON ANY WEBSITE LINKED TO THEM. NEITHER WE NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE LEXERCISE MATERIALS.
Fees and Payment.
1. Our Fees. In connection with your access to and use of the Lexercise Materials, you will pay to us (or, if you are a Student, your Organization will pay to us) (i) all fees and charges (if any) described in the service order you have executed with us and/or described at the time you register for (and “checkout” for your purchase of access to and use of) the Lexercise Materials, and (ii) any other fees and charges (if any) that you and we agree on from time to time (collectively, the “Fees”). All payment obligations are non-cancelable and all Fees once paid are non-refundable.
2. Terms of Payment. You must make all payments hereunder in US dollars. You will, upon our written request, establish and maintain valid and updated credit card or debit card information or a valid ACH auto debit account (in each case, the “Payment Method”). Upon establishment of such Payment Method, you hereby authorize us to charge the Fees using such Payment Method. If we do not require you to establish and maintain a Payment Method, we will invoice you in advance for the applicable Fees. Invoiced amounts are due immediately upon receipt. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
3. Taxes. All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
4. Late Payment. If you fail to make any payment to us when due then, in addition to all other remedies that may be available to us: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, and (ii) you will also reimburse us for all costs incurred in collecting any late payments, including, without limitation, actual attorneys’ fees. The remedies specified in this Section 5.c are in addition to, and not in lieu of, our right to terminate this Agreement under Section 7.b.
Intellectual Property Rights.
1. Lexercise Materials. We (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to our Lexercise Materials, including all new versions, updates, revisions, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights. To the extent we develop corrections, enhancements, improvements, derivative works or software relating to the Lexercise Materials based upon ideas or suggestions submitted by you to us, you hereby irrevocably assign your rights to such ideas or suggestions or joint contributions to us, together with all intellectual property rights in or relating thereto. We are not granting you any right, license or authorization with respect to any of the Lexercise Materials or any Third-Party Materials except as we’ve specifically provided in Section 2 above. We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the Lexercise and any Third-Party Materials.
2. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject only to the rights you grant to us in Section 6.c below and the rights we reserve in Section 6.d below.
3. Right to Use Your Data. During the Term, you grant all such rights and permissions in or relating to Your Data to us and our subcontractors as are necessary to provide our Lexercise Materials to you.
4. Usage Data. You acknowledge and agree that we may collect diagnostic, metadata, telemetry, technical and other statistical information regarding your and (where applicable) your Students’ use of and the performance of the Lexercise Materials and any other websites or services we offer (“Usage Data”), such as data on what features and functions of our websites are being used by their users and to what extent and information about your and (where applicable) your Students’ computers, systems and software used to access the Lexercise Materials or any other websites or services we offer. You agree that we may use Usage Data during and after the Term for monitoring, enhancing and improving the Lexercise Materials and our other websites and services.
5. Publicity Rights. If you are an Organization, you agree that during and after the Term we may include your name, trademarks and/or logos (the “Marks”) on our website and/or in other sales and marketing materials in order to factually identify you as a current or former customer (as the case may be). We may also, with your prior approval, include the Marks and additional information regarding the services provided to you hereunder in one or more press releases or case studies.
Term and Termination.
1. Term. This Agreement commences when first executed by you and continues until terminated in accordance with Section 7.b below (the “Term”).
2. Termination. This Agreement may be terminated at any time by either party for cause, effective immediately when that party provides written notice to the other, if the other party materially breaches this Agreement. We may terminate this Agreement at any time upon thirty (30) days’ advance notice if we cease to support the Lexercise Materials, which we may do in our sole discretion. You may terminate this Agreement at any time, for any reason or for no reason, upon written notice to us.
3. Effect of Termination. If this Agreement is terminated, then: (i) you shall promptly pay all amounts owed to us, (ii) except as provided in Sections 6.d and 6.e above, all rights, licenses and authorizations granted by one party to the other will immediately terminate, (iii) you must immediately cease all use of the Lexercise Materials and we may immediately disable your access to the Lexercise Materials, and (iv) except as provided in Sections 6.d and 6.e above, we will promptly cease all use of Your Data.
4. Surviving Terms. Sections 2.b (Limitations and Restrictions), 2.g (Trademarks), 3.e (Responsibility for Your Data), 4 (Important Disclaimers), 5 (Fees and Payment), 6 (Intellectual Property Rights), 7.c (Effect of Termination), 7.d (Surviving Terms), 8 (Indemnification), 9 (Limitation of Liability) and 10 (Miscellaneous), and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
Indemnification. You will, at your expense, defend us and our subcontractors and personnel from and against any claims, actions, suits or proceedings (“Claims”) brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers that are associated with such third party Claims, in each case to the extent the same are based on your use of the Lexercise Materials, your fraud, negligence or willful misconduct, or allegations that you have breached any representations, warranties, covenants or other obligations in this Agreement.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, MOBILE DEVICE OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF THIS AGREEMENT OR RELATED TO YOUR (OR WHERE APPLICABLE YOUR STUDENTS’) USE OF OR INABILITY TO USE THE LEXERCISE MATERIALS OR ANY ASSOCIATED SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES OF ANY KIND OR NATURE EXCEED THE TOTAL AMOUNT OF FEES YOU HAVE ACTUALLY PAID TO US IN THE 90 DAYS IMMEDIATELY PRECEDING THE EVENTS THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Miscellaneous.
1. Entire Agreement. This Agreement and the documents referenced herein together constitute the entire agreement between the parties, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).
2. Amendment, Severability and Waiver. Except as provided in Section 1 above, no change, consent or waiver under this Agreement will be effective unless agreed to by both parties in writing (including agreements reached over e-mail by authorized representatives of each party). Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
3. Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law provisions, and the sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Greensboro, North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
4. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LEXERCISE MATERIALS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
5. Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in your case to the address or e-mail address specified in your account and in our case to the address or e-mail address currently listed on the contact us page on our primary website (or to such other address or e-mail address specified by a party pursuant to the provisions of this Section).
6. Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, that we may assign, delegate or otherwise transfer this Agreement without restriction: (i) in whole or in part to our affiliates, or (ii) in its entirety to an entity in good financial standing that acquires all or substantially all of our business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, stock sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
7. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8. Relationship of the Parties. The relationship between your and us is that of independent, contracting parties (as provider of the Lexercise Materials and consumer of the Lexercise Materials). Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
9. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations (other than obligations to pay Fees when due) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, epidemic, war, terrorism, acts of God, or fire.
10. Equitable Remedies. You acknowledge and agree that a breach or threatened breach by you of the limitations and restrictions in Section 2.b would cause us irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, 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.