PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR USE OF THIS WEBSITE (WWW.FENGSHUIFORUS.COM).
This End-User License Agreement ("Agreement") is entered into by and between Monica P. Castaneda d/b/a Feng Shui For Us in the state of Tennessee ("We", "Us", the "Company") and you ("you", the "User"), and is effective as of the User's "Electronic Acceptance" (defined herein below).
Article I - User Acknowledgement
1.1 The User agrees that "Electronic Acceptance" is considered to be a binding affirmation by the User that the User agrees to be bound by the terms of this Agreement. The User agrees that Electronic Acceptance occurs by the User's use of the "Website" or by selecting an activation button ("Okay", "Agree", "Start", "Continue", "Sign Up", "Buy Now", "Place Order", etc.), or by creating an account with the Company for taking online courses through the website, http://www.fengshuiforus.com/, or any mobile site, mobile application, or other related websites ("Website").
1.2 Upon Electronic Acceptance by the User, the User agrees to abide by all terms and conditions of this agreement, and thereby agrees that the User has read, interpreted, understood, and accepted the terms of this Agreement, or any Agreement Update, whether on the Company Website or sent to the User via electronic mail or other means; the User, by giving Electronic Acceptance agrees to the terms of the "Policy Statement" posted on the Company's Website which is incorporated herein by reference. The User agrees further to any new terms and conditions or other provisions which may be added from time-to-time, notice of such terms or provisions shall be effectuated the same as "Agreement Updates" under 1.4 below.
1.3 All provisions of the terms and conditions apply when using the Website through electronic means non-exclusive to computers and mobile devices.
1.4 The User agrees and acknowledges that the Company may, at any time and at its sole discretion, update, revise, alter, replace or otherwise change this Agreement ("Agreement Update"). The User agrees to be bound by such Agreement Update, and agrees that notice of such Agreement Update shall have been completed upon the Company either: posting the Agreement Update to the Website, or delivering the Agreement Update by other electronic means to the most recent contact information provided by the User to the Company. Such Agreement Update shall be effective as of the date marked at the top of such Agreement Update. The User further agrees that the User's continued use of the Website and any courses taken via the Website, and all sites affiliated with the Company, shall be considered acceptance of the terms of such Agreement Update upon Company's provision of notice. The Company assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate or out-of-date email address.
1.5 Unless otherwise specifically provided in this Agreement, nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
1.6 If the User does not agree to the terms herein, the User should cease any and all use of the Company's Website or any of the Company's services offered thereby.
Article II - Services & Compensation
2.1 The "Services" as provided herein are general information about the Company, Feng Shui in general, and its additional products and services which may be purchased through the Website. The Company sells, under additional terms as stated in the End User License Agreement ("EULA", provided on the Website), additional services which may include, but are not be limited to, providing educational services in the field of Feng Shui online courses. Please note that part of the Services (or special features) may be provided only to Users who enroll in "Courses" which requires the payment of certain fees. The Services are provided by the Company AS IS and the Company assumes no responsibility for any failure in providing the Services to the User. The Company may change, suspend or discontinue any or all of the Services or any portion of the Website for any reason, at any time, including the availability of any feature or part of the Website or Services at its sole discretion. The Company may also impose limits on all or any of the Services, Courses, or Website or restrict your access to parts or all of the same without notice or liability. The Services, including those purchased through the Website, are all subject to the terms of this Agreement.
2.1.1 "Monitoring Services". The Company shall use commercially reasonable efforts to provide "Monitoring Services" as defined herein below, on a twenty four (24) hours per day, seven (7) days per week basis, throughout the term of this Agreement. The term "Monitoring Services" as used herein means, surveillance of the server status, various connections therefrom and thereto, and the operational status of the Website. The Monitoring Services shall be provided to prevent as many of the possible occurrences listed in and related to those in subsection 2.1.2 below.
2.1.2 Website Malfunction or Errors. The User acknowledges and agrees that from time-to-time the Website may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs that the Company may undertake at its sole discretion, or (iii) causes beyond the reasonable control of the Company or that are not reasonably foreseeable by the Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. The User acknowledges and agrees the Company has no control over the availability of the Website on a continuous or uninterrupted basis and agrees to hold the Company harmless for such failures.
2.1.3 No Warranty. The Company tries to keep the Website operable, bug-free, and safe, but you use it at your own risk. The Company provides the Website to the User as-is without any express or implied warranties, including but not limited to: implied warranties of merchantability, fitness for a particular purpose, and noninfringement. The Company does not guarantee that the Website will always be safe, secure, or error-free, or that the Website will always function without disruptions, delays or imperfections. The Company is not responsible for the actions, content, information, or data of third parties, and you release the company, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties.
Notice to California Residents: If you are a California Resident, you waive California Civil code §1542, which says, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The Company will not be liable to you for any lost profits or other consequential, special, indirect, or incidental damages arising out of or in connection with this statement or use of the Website and the Company's liability will not exceed the greater of one hundred (100) dollars or the amount you have paid to the Company in the past twelve (12) months. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, the Company's liability will be limited to the fullest extent permitted by applicable law.
2.2 The term "User Content" as used herein shall mean any materials submitted or shared by the User through its use of the Website; this includes but is not limited to: trademarks, copyrights, documents, images, video files, audio files, or other content, whether owned by the User or held by license from any third party. The User agrees that such User Content is all owned or authorized for use by the User, and by uploading or otherwise distributing such User Content on the Website or through the Services, agrees further to be responsible for all liability arising from such use.
2.3 No Additional Offer. The User agrees that by accepting the terms and using the Services under this Agreement, that the Company has made NO business offer, agreement to do business, agreement to purchase stock, an agreement to sell stock, transfer of ownership to or from the Company. Additionally, purchasing any services in any way is not a purchase or transfer of ownership of the Company. The User agrees that any suggestion the User might make and that might be implemented by the Company is NOT a transfer of ownership nor shall any such suggestions be compensated. The Company is regularly developing applications that will benefit our customers. Any such suggestions, including but not limited to, proposals and feedback will NOT be considered confidential.
2.4 Promotional Contact, Opt-Out. By registering any account or otherwise providing personal contact information to the Company, on its Website or otherwise, you expressly agree to receive promotional content from the Company, by mail or email, from time to time. If you provide the Company with your phone number, the Company shall be entitled to call you or send you promotional SMS notices from time to time. If you wish not to receive such promotional content/notices, you may notify the Company at any time.
Article III - General Undertakings, Use of Website, Third Party Links
3.1 The User accepts all responsibility, liability, and hereby waives any claim for any loss suffered by the User for any and all activities which the User makes on the Website, including but not limited to any User Content submitted.
3.2 The User agrees not to use the Website for any unauthorized, prohibited, or illegal purpose, or for the purpose of uploading or transmitting viruses, worms, Trojan horses, malware, or any other cyber security threats, or to harass the Company and the users of its Website. The User accepts and assumes all liability for compliance with the laws of the jurisdiction in which the User lives or is accessing the Website from.
Article IV - Intellectual Property
4.1 "Intellectual Property" as used herein refers to any and all of the following: patents, trademarks, copyrights, trade secrets, or any other proprietary information, lesson texts, designs, and layouts, and teaching methods, whether known or developed prior to, or subsequent the Effective Date of this agreement, and whether it is registered or unregistered with any corresponding governmental agencies or authorities, in the United States and abroad.
4.2 Intellectual Property Ownership
4.2.1 The Company shall own any and all Intellectual Property rights held in and to the Website, Services, and Courses ("Company IP"). This does not include User Content as defined in 2.2 above.
4.2.2 The User shall retain any rights it held or holds in the User Content prior to the submission for inclusion in the website. The Company makes no claim and has no proprietary interest in any User Content. The Company is not responsible for User Content which the User believes, even if such belief is reasonable, it owns but is in violation of any third party rights; such issues are governed by 4.3 below and elsewhere as specifically mentioned in this Agreement.
4.3 Third Parties and Intellectual Property. The User acknowledges and agrees to the terms of the Third Party Intellectual Property Policy Statement ("Policy Statement"). In addition to the terms of the Policy Statement, any action which the Company believes necessary to address any infringement will be given in advance notice to the User for its review and opportunity to seek legal counsel therefor. Any takedown or other corrective action which the Company believes to be necessary to prevent, preserve, or otherwise restore the Intellectual Property rights of a third party upon conclusion of its review of the assertions made may result in immediate suspension or removal of the allegedly infringing materials, regardless of whether actual notice has been sent to or received by the User or response to any such notice from the User has been received by the Company. The Company shall not be liable for, and the User agrees that it assumes all liability for, any loss, delay, or other damage to the User by the Company's compliance with the terms of the Policy Statement, regardless of whether any action taken is done prior to discovering that the assertions against the User were without merit.
Article V - Limited License
5.1 During the term of this Agreement, the User takes a limited license to make use of the Website as defined under this Agreement. The User agrees that it has no rights in and to the Company IP other than to make use of the Website as specifically allowed hereunder.
5.2 The license granted herein to the User may not be assigned, transferred, sublicensed, or otherwise conveyed to any third party.
Article VI – Warranties, Limitation of Liability, Indemnification
6.1 The User warrants that it has legal title and/or the authorized right to use any User Content it submits, shares, or otherwise distributes by use of the Website, and that any User Content submitted is not infringing the Intellectual Property rights of any third party. The User agrees to indemnify and hold harmless the Company and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys' fees and other legal expenses, arising directly or indirectly from or in connection with: (i) any breach by the User or User's assistants, employees or agents of any of the covenants contained in this Agreement, (ii) any violation or claimed violation of a third party's rights resulting in whole or in part from the Company's use of any User Content under this Agreement; and/or (iii) any action taken by the Company against the User due to allegations of infringement of third party Intellectual Property.
6.2 The User hereby warrants that it has read and understands the terms and conditions of this Agreement, and further warrants that the User assumes all liability for any loss due the use or misuse of the Website, including losses or other damages arising from the Company's compliance with the terms of the Policy Statement as expressly stated in Section 4.3 above.
6.3 The User hereby warrants that it will not, at any time now or in the future, make any claim to hold or own any right or interest in and/or to the Company IP.
6.4 Under no circumstances shall the Company be held liable for any delay or failure in this Website and/or any of the Services and/or information on the Website directly or indirectly resulting from, arising out of, relating to or in connection with events beyond the reasonable control of the Company, including, without limitation, internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties. The provisions of this paragraph are in addition to, and not intended to limit or modify, other limitations of liability stated herein. The Company provides the Services and any additional purchases to the User as-is without any express or implied warranties, including but not limited to: implied warranties of merchantability, fitness for a particular purpose, and noninfringement. The Company does not guarantee that the Courses, Website, or Services will always be safe, secure, or error-free, or that the Courses or Website will always function without disruptions, delays or imperfections.
6.4 The User hereby indemnifies and holds harmless the Company and/or any affiliates, employees, directors, representatives, shareholders, and/or agents from and against any and all damages, claims, costs, penalties, judgments, interest, and expenses (including but not limited to reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:
6.4.1 Any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies herein or otherwise posted on the Website,
6.4.2 Your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights,
6.4.3 Your violation of any law, rule or regulation of the United States or any other country,
6.4.5 Any other party's access and/or use of the Website with your unique name, password or other appropriate security code (if applicable); You are responsible for maintaining the security of your account and content, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the Website. You agree to immediately notify the Company in writing of any unauthorized uses of your account or any other breaches of security. The Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will the Company be liable, in any way, for any acts or omissions by any third party or other users, including any damages of any kind incurred as a result of such acts or omissions, and/or
6.4.6 Any other losses suffered by your use of the Website, even such use as appears to be or is in compliance with the terms of the Company, including but not limited to the User's computer or other device accessing the Website or Courses due to any bug, virus, Trojan horse, or other malware which may have been transmitted from any third party.
6.5 Disclaimer. No medical, psychological, financial, or counseling services are provided by the Company, and nothing in this Agreement or any other agreement between the parties shall be construed as such; such services are encouraged by the Company but the Company makes no offer to provide such services.
Article VII - Term and Termination
7.1 Term and Termination. The term of this Agreement shall be the Effective Date of this Agreement until, either: (i) the Company exercises its right to terminate the User account under 2.2 and 3.2.1 above or under any other authority expressly or impliedly granted to the Company by the terms herein; or (ii) the Course(s) which the User has enrolled in have completed and no new Course(s) has/have been enrolled in.
7.2 Survival. Upon such termination, all rights and duties of the Company and User toward each other shall cease except: Article IV (Intellectual Property), Article V (License), Article VI (Warranties, Limitation on Liability, Indemnification)
Article VIII - Miscellaneous
8.1 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of Tennessee without regard to Tennessee's conflicts of law rules. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Tennessee.
8.2 Assignability. Except as otherwise provided in this Agreement, User may not sell, assign or delegate any rights or obligations under this Agreement. The Company may freely assign, sublicense, or otherwise transfer any and all rights or liabilities it holds under this Agreement.
8.3 Time for Disputes. The Company and the User each agree that any cause of action arising out of or related to the Website, Services, or Courses as between the Company and the User must commence within one (1) year after the actions giving rise to such cause of action occurred. Otherwise, the Company and User expressly agree that any action not brought within such time shall be permanently barred.
8.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement.
8.5 Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
8.6 Notices. Any notice or other communication required or permitted by this Agreement to be given to a party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by U.S. registered or certified mail (return receipt requested), or sent via facsimile (with receipt of confirmation of complete transmission) to the party at the party's address or facsimile number written below or at such other address or facsimile number as the party may have previously specified by like notice. If by mail delivery shall be deemed effective three (3) business days after mailing in accordance with this Section 8.6.
8.6.1 If to the Company to:
Monica P. Castaneda
Feng Shui For Us
7786 Emory Chase Ln.
Knoxville, TN 37918
8.6.2 If to User, to the address for notice on the signature page to this Agreement or, if no such address is provided, to the last address of User provided by User to the Company.
8.7 Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, in addition to any other relief to which the party may be entitled.
8.8 Severability. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.