TERMS & CONDITIONS
(USER AGREEMENT)
Hello and thank you for visiting our corner of the interwebs!
It is important to us that everyone has a positive, safe and enriching experience here, so there are a few rules in our home. Please read these terms prior to using this website. Enjoy.
Tracy Birdsell Creative (the “Company”) welcomes you to www.tracybirdsell.com (the “website” or “site”) as well as any other websites operated by the Company, including but not limited to: (Future sites will be listed here).
By visiting the website, you are agreeing and consenting to be bound to the following terms of use as well as the policies outlined in the Privacy Policy, which together constitute an agreement between the Company and the User. Please read the entirety of this agreement carefully, for there are provisions below establishing a waiver of specific legal rights. If you do not agree to any of the terms outlined here, please do not access, use or browse the Website or access any of the Company’s services.
Definitions
“Company” refers to Tracy Birdsell Creative, and may be herein referred to as “we”, “us”, or “our”
“Website” or “Site” or “Sites” refers to and includes all the intellectual property, content, and services consisting of, but not limited to: information, concepts, images, text, materials, music, program materials, videos, and any other content viewable to the User on tracybirdsell.com, it’s subdomains and all of its services provided on or through the Sites you access, view, link to or from, or otherwise interact or communicate with or connect to the Sites, and includes pages through which Members access through paid monthly membership or through a one-time membership fee.
“Member” is defined within the Membership Subscription Agreement and Terms of Purchase Agreement
“User” is a collective referral to a Visitor or Member to tracybirdsell.com and any related websites who also, in may circumstances, may be referred to as “Subscriber”, “Customer”, “VIP”, or “Affiliate”. The term “you” also includes, as applicable, to any company, group or organization, where you attest to have it’s expressed and apparent authority to agree on it’s behalf to all of the terms and conditions outlined here.
“You” or “Your” refers to you as a User, Visitor, Member, Subscriber, Customer, VIP, or Affiliate.
These Terms of Use (“Agreement”) set forth how Tracy Birdsell Creative and you the user agree to respect each other, respect each other’s property, and respect the other users you may interact with while and after you are using our website, pages and other information published through tracybirdsell.com and any related websites and apply to your use of the websites owned and operated by Tracy Birdsell Creative, it’s affiliates and related entities (“we” or “us”) and any subdomains thereof (the “Sites”)
By using the Sites you agree to these Terms of Use and our Privacy Policy which is incorporated herein by reference. These terms of use constitute a binding agreement between you the User and Tracy Birdsell Creative respecting user’s access to and usage of the website and any service made by the Company.
By visiting, accessing, browsing or using the website, User agrees and consents to be bound by these terms of use. User’s consent to be bound by these terms of service shall have the same legal effect and import as if the user had personally signed an original version of these terms of use.
If you do not agree with any of parts of the Terms of Use, do not use the Sites. If you have already accessed our Website and do not accept this Agreement, you should immediately discontinue use of our Website and Services. These Terms of Use may be changed from time to time without notice. Any changes will be effective when posted and it is your responsibility to check regularly to determine whether the Agreement has been changed. Please periodically review our Terms of Use to become aware of any changes and your use of the Site following such a change shall be considered to be your acceptance of the changes.
Services
Your use of certain features, functionality, resources, products or programs (including, without limitation, contests, sweepstakes, games, surveys, forums, newsletters, subscription registrations, content submissions, chats, bulletin boards, discussion groups, promotions, marketing opportunities, affiliate programs requests for suggestions, requests for free products, RSS feeds, etc.) offered on or through the Sites (the “Services”) may be subject to additional terms and conditions (“Service Rules”), and before you use any of the Services you may be required to indicate your acceptance of such additional Service Rules. All Service Rules are incorporated into these Terms of Use by reference.
User Requirements: Eligibility and Compliance
You must be at least 18 years old to participate on our Sites. We do not knowingly collect personal information from anyone under the age of 18. If you are under the age of 18, with the permission of your parent or legal guardian, you may view the Sites as a visitor. Any User or Member visiting the Site attest that they are in full compliance with this Eligibility Requirement as of the date of their initial visit to the Site. Users failing to meet this requirement or falsely representing their compliance are unauthorized users and subject to the termination of any and all access privileges by the Company to the Site or Services (including but not limited to access to any paid or exclusive content or Member Content contained on exclusive or restricted pages).
Applicable Laws
We comply with the CAN-SPAM Act, the Children’s Online Privacy Protection Act, the Digital Millennium Copyright Act and all applicable rules, regulation laws, statutes, ordinances, codes, and guidelines, including those of the Federal Trade Commission (collectively, “Applicable Laws”) By using the Sites you agree to abide by all Applicable Laws and to refrain from assisting anyone to evade any Applicable Law.
House Rules
By accessing the Sites, you agree not to:
use the Sites in any unlawful manner or in any manner that could damage, disable, disrupt or impair the Sites or interfere with any other user’s use and enjoyment of the Sites
use spiders, robots, data mining techniques or similar data methods to download or otherwise, store, publish or distribute the content of the Sites
intercept or misappropriate data or personal information from the Sites
post, transmit, publish, share or otherwise make available any information, software or other material that contains a virus, malware or any other harmful component including but not limited to trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage or interfere with the Sites
intimidate, harass or insult other users
post, transmit, publish, share or otherwise make available any content that is abusive, harmful, unlawful, fraudulent, threatening, infringing, hateful, harassing, defamatory, insulting, obscene, profane, racist, or otherwise objectionable
post, transmit, publish, share or otherwise make available content that would incite a criminal offense, violate the rights of others or that would otherwise create liability or violate any Applicable Laws
post, transmit, publish, share, or otherwise make available any inappropriate advertising, solicitations or promotional materials including junk mail or spam that would violate the CAN-SPAM Act
inappropriately post transmit, publish, share, or otherwise make available or solicit private information such as phone numbers, addresses, social security numbers impersonate any person or entity (including, but not limited to, any of our employees or representatives), or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity
use your account or another user’s account in an inappropriate or unauthorized manner
post the same message or comment multiple times
We reserve the right to monitor communications on the Sites between you and other users.
User Registration and Access to Content
If you access the Sites as a visitor, you will not be required to provide personally identifiable information and can view all publicly available Site content.
However, any User who voluntarily signs up to access certain Services or to sign up for more information, you may be required to register or to create an account and to provide certain information and are agreeing to both the terms of this Agreement and the accompanying Terms and Conditions of Purchase where applicable to specific product, service or program.
When registering an account, you agree to:
provide true and accurate information about yourself
create a suitable username that is not offensive, infringing or deceptive
not register for more than one account
not register for an account on behalf of someone other than yourself
maintain the security of your passwords and identification
be responsible for all use and activity under your account, and the consequences thereof, regardless of whether you have authorized such use and activity
immediately notify us of any unauthorized use of your password or account or any other breach of security
Comply with all applicable United States federal and state laws
not create compilations or derivative works as defined under United States copyright laws
not redistribute or attempt to redistribute in any manner, including, but not limited to, sale, license, sublicense, lease, rental, subscription, or any other distribution
not decompile, disassemble or reverse engineer any related software.
Not assign your rights or obligations under this Agreement, Monthly Subscription Agreement or Purchase Agreement to any other party
If we determine, in our sole discretion, that you have violated these Terms of Use, or Terms of Use for any product, service, or program, we reserve the right, without notice, to remove your account and restrict, suspend or terminate your access to all or any part of the Sites in our sole discretion. The Company is under no obligation to accept any individual as a Registered User and may accept or reject any registration in its sole and complete discretion.
Restrictions on Use of Site Content
Copyright & Trademark Notice: Unless otherwise specified, all materials appearing on this site, our trademarks and service marks, along with our trade names, trade dress (the “Marks”) and designs and all other content found on our Sites, including, but not limited to, articles, recipes, art, designs, graphics, text, postings, images, links, photographs, video and audio files, information, music, the site design, logos, icons, as well as the selection, assembly and arrangement thereof (Collectively, the “Site Content”), is the sole property of the Company, Copyright © 2007-2018, ALL RIGHTS RESERVED and/or the property of its respective owners.
You may use the content of this site only:
for the purpose of reading the information on this site
your own education
for shopping on this site
for placing an order through this site
You will not acquire any ownership rights by downloading the Site Content. You may not use, modify, copy, publish, display, transmit, adapt, frame, republish, upload, post, transmit, or distribute or in any way exploit the Site Content, in whole or in part, without our prior written authorization and the authorization of all respective owners of the Site Content.
You agree not to duplicate, imitate, copy, reproduce, transmit, publish, display, distribute, sell, transfer, assign, license, sub-license, publicly perform, commercially exploit or create derivative works of such material and content, nor to help or assist third parties in doing the same.
All rights not expressly granted herein are reserved. Any unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
You must abide by all copyright notices or other restrictions contained on the Sites. Any unauthorized use of the Site Content will terminate any permissions granted herein. Such unauthorized use may also violate Applicable Laws, including copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to the Marks or Site Content and could result in criminal or civil penalties.
Copyright Complaints
We respect other people’s intellectual property rights. Therefore it is our policy to remove any materials that infringe upon another party’s intellectual property rights. In accordance with the Digital Millennium Copyright Act (the “DMCA”), and upon proper notice, we will remove User Content (and any other Site Content) that violates copyright law. If you believe your work has been infringed send an email to support@tracybirdsell.com containing the following information: (i) the identification of the copyrighted work; (ii) the location of the material on the Sites; (iii) your contact information; (iv) a statement that you have a good-faith belief that the use is unauthorized, (v) a statement that you are the copyright owner or authorized to act on the copyright owner’s behalf and (vi) a statement, made under the penalty of perjury, that all the information in your notice is accurate; and (vii) your signature (physical or electronic).
By submitting a notice, you acknowledge and agree that we may forward your notice and any related communications to any users who posted the material identified in such notice or to other third parties, including but not limited to legal counsel.
If you believe that your User Content has been wrongfully removed from the Sites, you may send us a counter-notice. The counter notice must be in writing, sent to the email address above, and include: (i) identification of the material that has been removed; (ii) your contact information; (iii) a statement that you have a good-faith belief that the material was improperly removed; (vi) a statement that you consent to the jurisdiction of the Federal District Court in the city of Los Angeles, California USA, and agree to accept service of process from the person who submitted the original notification that resulted in your User Content being removed (or an agent of such person) in the event he or she elects to file suit; (vi) a statement, made under the penalty of perjury, that all the information in your counter notice is accurate (vii) your signature (physical or electronic). By submitting a counter-notice, you acknowledge and agree that we may forward your counter-notice and any related communications to the person who submitted the original notice that resulted in the removal of your User Content or to other third parties.
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
User-Generated Content
There may be portions of the Website that allow for the posting of reviews, comments, photographs or other content (“User-Generated Content”) We are not responsible for content posted, transmitted, published, shared or otherwise made available by users on or through the Sites (“User Content”). User Content includes, but is not limited to, trademarks, trade names, service marks, trade dress, articles, recipes, art, designs, graphics, text, postings, images, links, photographs, videos, information, and music (collectively, “User Content”). You may submit such content via the Website so long as it is not threatening, objectionable, illegal, obscene, defamatory (to us or anyone else), invasive of privacy or intellectual property rights, or otherwise injurious to us or third parties. We are a distributor (and not a publisher) of User Content. Accordingly, we have no editorial control over such User Content, User Content does not reflect our opinions or views.
Although we may monitor the Sites, we do not review all User Content. Any content that you submit to us will not be subject to any expectation of privacy, trust, or confidence between us, and no confidential, fiduciary or other relationship is intended or created between you and us. We do not endorse any User Content and make no warranties, whether expressed or implied, as to the accuracy, integrity or quality of any User Content. Under no circumstances will we be liable in any way for User Content, including, but not limited to, any errors or omissions in any User Content or any loss or damage of any kind incurred as a result of the use of or reliance on any User Content.
We retain the right to archive or make any discussion “Read Only” or to reject, modify or remove any User Content (without notice or liability) if we consider any User Content to be in violation of these Terms of Use or otherwise inappropriate or harmful to the Sites in our sole discretion. Regardless of whether we remove such User Content, users remain solely responsible and liable for their User Content.
By posting, transmitting, publishing, sharing or otherwise making available User Content on the Sites, you automatically grant (or warrant that you have the express authority from the owner of such User Content to grant) us a worldwide royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, adapt, translate, publish and distribute such User Content (in whole or in part). We also have right to incorporate and adapt the User Content in other works in any form, media or technology now known or hereafter developed. You further grant any other user of the Sites to access, view, store or reproduce the User Content for that user’s personal non-commercial purposes.
You agree to indemnify us and our affiliates and designees from and against any and all claims arising out of, resulting from or relating to any such User-Generated Content. We have the right, but not the obligation, to review and remove any activity or content involving you or your account. We assume no responsibility and have no liability for any User Generated Content created or posted by you or anyone else.
Additionally, you represent and warrant that (1) no element of your User Content will violate or infringe upon the intellectual property or privacy rights of any third party and (2) you (and any licensor of content that you post on the Sites), have waived any “moral rights” in connection with your User Content. You are solely responsible for paying all royalties and other fees that might be due to any person or entity by reason of any User Content posted by you on or through the Sites. You acknowledge you are not entitled to any compensation for any User Content you post on the Sites.
Each time that you access the Website, create, or submit User-Generated Content, you re-confirm your agreement to the terms of the then-existing User-Generated Content License for that submission and all previous submissions by you to us.
Member content submissions
Members understand that:
the posting of such Member Content could subject that Content submitted to any range of praise or criticism, whether complimentary, neutral or harshly critical
The posting of Member Content is not subject to any confidentiality or non-disclosure obligation on the part of the Company, or any Member. Nor is any Member Content deemed to be Personal Information under the Company’s Online Privacy Policy
Company shall have no liability for any similarities between future products, services, offerings or other content developed by the Company or by another Member
Company has no liability as a result of opinions expressed during any critique of a Member Content submission, whether by the Company or any individual Member(s)
Member opinions are solely the opinions of the Member and not necessarily those of the Company
Additionally, should a Member submit Member Content containing marketing, promotional, budget or business plans, Member understands and acknowledges that:
Company’s comments are strictly opinions and no Member should make decisions on the basis of those opinions without independent investigation
Company’s comments are general in nature and are not aimed at any specific individual or geared toward his or her individual circumstances
CHANGES TO THE WEBSITE
We reserve the right to modify or withdraw, temporarily or permanently, the Website (or any part of it) with or without notice to you. You agree that we shall not be liable to you or any third party for any modification to, or withdrawal of, the Website. You will not be eligible for any compensation because you cannot use any part of the Website, or because of a failure, suspension, or withdrawal of all or part of the Website.
Links to Third-Party Sites
The Sites may contain links to other sites (“Third-Party Sites”) containing content, goods, services, and applications not owned by us. These Terms of Use apply only to our Sites. We do not control, endorse, take responsibility for, investigate, monitor or check for accuracy, appropriateness or completeness of any content of Third Party Sites. You release us from any and all liability, direct or indirect, and for any loss or damage in connection with your use of, or reliance on, any content of Third-Party Sites. Users acknowledge that, in leaving the Website or Service (including any Content contained therein) to use such Third Party Links or Third Party Advertising Links or purchasing a product from a Third Party Link or Third Party Advertising Link, it does so at its own risk.
You assume all of the risk, responsibilities, and consequences resulting from your use of or access to third-party websites. You further agree that we are not responsible for the availability of any external sites or resources, and do not endorse and are not responsible or liable, directly or indirectly, for the content (including misrepresentative or defamatory content) of any third party websites, nor for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods or services available on such external sites or resources, including those of affiliates, joint-venture partners, or others to whom we might provide links from time to time.
Personal Advice
The Site Content cannot replace or substitute for the services of trained professionals in any field, including, but not limited to, financial, medical, professional or legal matters. The beneficial and low to no-cost advice shared here on our site has been provided for general educational purposes only and for no other purpose than for your entertainment. Nothing we provide here is intended to, nor can replace the advice from a professional specializing in the field you require. We encourage you to seek the advice of professionals, as appropriate, regarding the evaluation of any specific information found on the Sites.
If you are in need of professional advice, including but not limited to medical, mental health, legal, accounting or tax advice, or any other form of professional advice, then you should seek out a competent professional in that area who can ensure you are provided help that is specific to your particular situation and circumstances.
To the extent our offerings are provided to support health and wellbeing, you agree and pledge to maintain full and sole responsibility for your own health and that of your dependents.
Your access and use of the Sites does not in any way create a physician/patient, confidential or privileged relationship, or any other relationship that would give rise to any duties on our part or the part of its contributors. We do not endorse any specific tests, physicians, procedures, opinions, or other information that may appear on the Sites. Your reliance on any information provided on the Sites is solely at your own risk. We make no representations or warranties concerning any treatment, action or application of medication or preparation by any person following the information offered or provided within or through the Sites. We are not liable for any direct, indirect, consequential, special, exemplary or other damages that may result, including but not limited to, economic loss, injury, illness, mental distress, or death.
No Medical Advice
Content on this and related sites in no way constitutes medical advice and is not intended to be a substitute for medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. We also advise you to consult with your medical doctor before changing your diet or lifestyle. Never disregard professional medical advice or delay seeking it as a result of your use of site content. We make no guarantees about your experience or results from your use of content and you release Tracy Birdsell Creative, its officers, employees, and consultants of any liability relating to your use.
No FDA Evaluation
The advice shared in this site has not been evaluated by the US Food & Drug Administration (FDA). The products and methods mentioned or recommended on this site are not intended to diagnose, treat, cure or prevent any illness or disease, nor are the products and methods intended to replace proper medical help.
Warranties and Limits of Liability
YOU USE THE SITES AT YOUR OWN RISK.
THE SITES (AND ANY PORTION OF THE SITES) ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAWS, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT).
We make no warranties or representations about the accuracy or completeness of content available on or through the Sites, the Site Content, or the content of any websites, any social media or other Internet resources linked to the Sites and assume no liability or responsibility for any: (i) errors, mistakes, or inaccuracies contained on the Sites; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Sites (or any parts thereof); (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Sites; (v) any bugs, viruses, Trojan horses, malware or the like which may be transmitted to or through the Sites (or any parts thereof) by any third party; and/or (vi) for any loss or damage of any kind incurred as a result of the Site Content, the use of the Sites and/or through your or any other users’ exercise of any rights granted by us herein. We reserve the right, in its sole and exclusive discretion, to change, modify, add, remove or disable access without notice to any portion of the Sites (including, without limitation any of the Services).
Federal Trade Commission Disclosure
This website and its information are written, edited and published by the Company, which claims sole and exclusive ownership of its content. For questions about this website or its content, please contact us using the following email address: support@tracybirdsell.com
The Company sometimes accepts forms of cash advertising, direct sponsorship, affiliate sponsorship, paid insertions, or other forms of compensation. We abide by word of mouth marketing standards. We believe in honesty of relationship, opinion, and identity. The compensation received may influence the advertising content, topics or posts made on our website and its content. Other than what is obviously advertising, if certain content is paid or directly sponsored, then we here pledge our best efforts to clearly identify or label it as such. The Company is sometimes compensated to provide opinions on products, services, websites and various other topics. Even though we may receive compensation for our posts, advertisements or other content, we always give our honest opinions, findings, beliefs, or experiences on those topics or products. The views and opinions expressed on any blog, guest post or in any form of comments on our website are purely that blogger’s own. Any product claim, statistic, quote or other representation about a product or service should be verified with the manufacturer, provider or party in question.
Policy for Our Giveaways:
No purchase(s) necessary to win.
Entrants must be natural persons 18 years of age or older to enter.
Winners are chosen at random, which typically means by a method employing the free tools available at www.random.org, or other similar tools; we also may choose a winner by awarding the prize to the first eligible person to respond to our free call to action.
Winners will be notified by email shortly after the giveaway ends. We are not responsible if a winner’s email inbox settings mark or categorize our notification email as junk, spam or the like.
Winners will have 48 hours to claim the prize or another winner may be chosen at our discretion.
We may, at our discretion, make public the first name and last initial of our giveaway winners, also making public their state and/or country of residence. All other contact information will remain private and will be destroyed after a winner is confirmed and their prize is confirmed as mailed.
A winner’s tax considerations and any tax or tax-related obligations are entirely their own. Since all of our giveaways are for cash, goods and/or services valued at less than US$600, we don’t and won’t be sending any winner a form 1099-misc for US income tax purposes.
We reserve the right to end, extend, or change a giveaway for any reason and without prior notice.
We reserve the right to consider any entrant ineligible who has been a winner in one of our giveaways in the last 12 months.
In any of our giveaways of products from certain companies, we reserve the right to limit the pool of eligible entrants to those persons who are not wholesale members, affiliates, contractors or employees of those companies.
Odds of winning in one of our giveaways depend on the number of entrants.
Void where prohibited by law.
Other Terms & Conditions
All of the provisions of our Privacy Policy and Member Agreement are incorporated by reference into these Terms and Conditions. We make no guarantees or warranties about any information on our site, including without limitation any warranty of fitness for a particular purpose. Anyone subscribing to our website or using any of our programs, posts or pages is also agreeing to these Terms and Conditions, and any user providing us their email address in exchange for our delivering any content to them personally or who are registering for one or more of our webinars or videos also is asserting and agreeing to receive emails from us on a regular basis. Any of our subscribers may unsubscribe at any time by reply email if the email was sent directly by us or one of our staff (including “unsubscribe” in the subject line), or otherwise by unsubscribing by clicking the link or button provided in the footer of our emails. We love our subscribers and will not sell, lease or distribute your email address or any other information to any third parties unless we have your permission or are required by law to do so. These terms and conditions will supersede any previous terms and/or conditions you may have copies of in any form, regardless of whether we or you have signed them or not. We reserve the right to make changes to this site and these terms and conditions at any time.
Governing Law
We create, control, and operate the sites from our offices in the United States. We do not represent that materials on the sites are appropriate or available for use in other locations. People who choose to access the Sites from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
CALIFORNIA CONSUMER RIGHTS NOTICE
California users of the Website are entitled to the following information pursuant to California Civil Code Section 1789.3:
For any questions or complaints about the Company, our products, services or the Website, please contact us via e-mail at support@tracybirdsell.com, via written correspondence sent to 4445 Cartwright Ave #310 Toluca Lake, CA 91602.
The Company is engaged in the sale of services worldwide and tangible goods and services within the USA. Currently, there are no charges to the consumer for the use of the Website, other than the cost of any products, programs or services purchased through the Website, and any applicable fees associated with such purchases. Unless otherwise stated, these charges appear for each purchase on an Order Confirmation page or in an Order Confirmation sent via email to the consumer following their purchase.
The Company reserves the right to change pricing related to any products, programs or services offered through the Website at any time. Those changes will be reflected in the terms and conditions accompany the sale and on the Order page.
The Complaint Assistance Unit of the Division of Consumer Services of the Dept. of Consumer Affairs in CA, Consumer Information Center may be contacted in writing at 1625 North Market Blvd, Suite N-112, Sacramento, CA 95834 or by calling 1-800-952-5210.
Arbitration
These Terms of Use will be governed by and construed in accordance with the laws of the State of California. In the event of a dispute relating to this Agreement, the Content or the Site(s) shall be submitted and addressed solely by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association’s (“AAA”) of the county or city of los Angeles, California office, excluding, however: a) any and all Company claims by the Company against a User to collect any sums due under these Terms of Service or any Monthly Subscription Fee due under the Monthly Subscription Agreement; b) any and all actions by the Company to recover damages from a User for a violation of these Terms of Use or the Monthly Subscription Agreement’s terms and conditions and; c) any action by the Company to enjoin and prohibit User from engaging in behavior in contravention of these Terms of Use on or in connection with the Website or Service (including any Content contained therein).
Any such controversy or claim not excluded under the immediately preceding subparagraphs a), b) or c) shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
Any arbitration proceeding shall be conducted by a mutually selected, qualified neutral, third-party attorney/mediator located in in the City or County of Los Angeles, California, where which mediation may occur in-person, online (via webcams), or telephonically, and shall be scheduled within 30 days of either party providing the other with a request to mediate. Any arbitration award may be enforceable in any court having jurisdiction thereof. Either party may seek an interim or preliminary protective order from a court of competent jurisdiction in the City or County of Los Angeles California pending the completion of arbitration. Each party shall split the arbitration fees and costs on a 50-50 basis, provided, however, that each party will bear its own attorney fees.
You hereby waive any rights to bring any civil action in any court regarding such disputes. The award rendered by the arbitrator shall be final, and judgment may be entered into it in accordance with the applicable law in the Circuit Court of Los Angeles, California. If either you or we desire arbitration, that party agrees to serve a written notice of the arbitration with the other party and the AAA’s Los Angeles, California office.
CLASS ACTION WAIVER
You agree that any arbitration or court proceeding shall be limited to the Dispute between us and you, individually. To the full extent permitted by law, (i) no arbitration or legal proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Waiver of Jury Trial
TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAWS, YOU HEREBY WAIVE THE RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS RELATING TO THESE TERMS OF USE, AND THE BREACH THEREOF WHETHER IN CONTRACT OR TORT AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION
Injunction Relief
You hereby irrevocably waive any right to seek and/or obtain injunctive or other equitable relief or any order against us, and/or to enjoin or restrain or otherwise impair in the production, distribution, exhibition or other exploitation of any of our productions or projects.
Severability and Interpretation
Whenever possible each provision of these terms and conditions shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these terms and conditions shall be prohibited, void, invalid, or unenforceable under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity, voidability, or enforceability without invalidating the remainder of such provision or the remaining provisions of this agreement. We and you agree that any ambiguity or vagueness of any provision of this agreement shall not be construed against the drafting party because of its being the drafter of this agreement.
Survival
All obligations of the parties hereto contained in this agreement shall survive the expiration or termination of this agreement.
ELECTRONIC COMMUNICATION
When you visit the Website or correspond with us via e-mail, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures, and other communications that we provide electronically satisfy any legal requirement that such communications be in writing.
Refunds and Returns:
At Company’s sole discretion, Company may provide from time to time a refund and/or return policy for you for the products and/or services it provides to you. If or when the Company may provide a refund/return policy, it does so in writing in its marketing materials for each of its products and/or services that it provides and/or sells to you, which policies Company may or may not provide for each of its products or services. If, for whatever reason, the Company does not provide a refund/return policy on its marketing materials for one of its products or services, then no refund or return shall be available for such product or service, as long as the Company already has made delivery or availability of the product or a materially complete rendering of its service to you.
The Company’s refund/return policies may differ from product to product, from service to service, and/or from time to time, and these policies may change at any time in the future at the Company’s sole discretion.
You agree to make any requests for any available refunds or returns before or on any applicable deadline by email at the following address: support@tracybirdsell.com including the word “refund” or “return”, as applicable, in the subject line of your email.
Prior to issuing/processing any form of refund and/or return that may be available, at Company’s sole discretion, it may require you to certify with it in writing that you already have fully completed and fulfilled your obligation hereunder to thoroughly search for, and to permanently delete and destroy, all of the digital or electronic Company-provided documents or materials, and to return (only at the Company’s sole discretion: and/or destroy) all physical Company documents or materials that are in your possession, including without limitation any or all copies or printouts you may have made of any Company documents or materials. You agree to make any such returns at your sole expense, with their arrival at the Company to be made prior to or on any refund deadline, without any material waste or breakage; the Company may await the safe arrival of your return before issuing any refund. Also, prior to issuing any form of refund and/or return that may be available, at Company’s sole discretion, it may require that you re-certify and pledge to continue to uphold your obligations under these Terms and Conditions and under any other agreement you have made with the Company, the terms and provisions of all of which shall continue to apply to the parties hereof and continue as valid and binding agreements, including after any such refund or return is completed, for the longer period of (i) the longest period available under applicable law, or (ii) thirty-five years after the date of your request for a refund and/or return.
The Company shall not be liable for any untimely or improper refund or return requests, or for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of these Terms and Conditions, use or misuse of our materials or content, or other performance of services hereunder. You agree and acknowledge that all of these Terms and Conditions are fair, equitable and reasonable to both parties, including without limitation the provisions of this Section 12.
Indemnification
User agrees to defend, indemnify and hold harmless the Company, its officers, affiliates, directors, agents, and employees from and against any and all property damage, personal injuries or death and other liability, loss, cost, expense, or damage, including, without limitation, court costs and reasonable attorney’s fees arising out of user’s use or misuse, whether intentional or negligent, of the Company’s content and information and from user’s breach of any of the terms contained in this agreement.
Counterparts
This agreement, and any other agreements we may enter into with you later may be executed in several counterparts or by separate actions between or among its parties, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. It’s understood that your accessing and using the information on this website constitutes your complete assent, and, as applicable, the assent of the company, group or organization you represent, to all of these terms and conditions, which shall be considered valid, binding and effective for all purposes.
Headings
The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this agreement.
ENTIRE AGREEMENT
These Conditions and documents referred to herein (as amended from time to time) contain the entire Agreement between you and us relating to the Website and any matter covered and supersede all prior and contemporaneous agreements, representations, understandings or proposals between us. No oral explanation or oral information given by either of us shall alter the interpretation of these Conditions.
END Of Agreement