Solid Manager Certification Terms of Use
THESE TERMS OF USE (“TERMS”) SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THIS SOLID MANAGER CERTIFICATION SITE, INCLUDING ANY SERVICES MADE AVAILABLE VIA THE SITE (“SITE”). THE SITE IS A COPYRIGHTED WORK BELONGING TO THE STEP MANAGER, INC. (“TSM”). BY ACCESSING OR USING THIS SITE, YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU MAY NOT ACCESS OR USE THIS SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. YOU MAY NOT ACCESS OR USE THIS SITE IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS. IF YOU OR THE ENTITY YOU REPRESENT HAS A SIGNED AGREEMENT WITH TSM GOVERNING ACCESS AND USE OF ALL OR PART OF THE SITE, THE TERMS OF THE SIGNED AGREEMENT WILL GOVERN IN THE CASE OF ANY INCONSISTENCY WITH THESE TERMS.
PLEASE NOTE THAT IF YOU ARE AN INDIVIDUAL CONSUMER END USER, THE ADDITIONAL TERMS SET FORTH IN APPENDIX A WILL APPLY TO YOU AND ARE INCORPORATED INTO THESE TERMS. APPENDIX A CONTAINS, AMONG OTHER THINGS, PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND TSM, INCLUDING AN ARBITRATION AGREEMENT THAT REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND TSM SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. IN ADDITION, APPENDIX A DESCRIBES IN GREATER DETAIL HOW IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SITE FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT TSM’S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU OPT-OUT OF THE AUTOMATIC RENEWAL OF SERVICE TERM IN ACCORDANCE WITH APPENDIX A.
THESE TERMS ARE SUBJECT TO CHANGE BY TSM IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 13 (AGREEMENT UPDATES).
ACCOUNTS
Account Creation. In order to access the Site, you may be required to register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that all required registration information you submit is truthful and accurate and that you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. TSM may suspend or terminate your Account in accordance with Section 10.
Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all actions and activities that occur under your Account. You must exercise best efforts to ensure the security and integrity of your own network; to detect and prevent unauthorized access to your network or the Site; and take commercially reasonable steps to safeguard passwords, personal identification numbers, or other access or authentication devices. TSM does not actively monitor, censor, or control information that you transmit or receive on the Site. You shall remain solely liable for your use of the Site and any and all content that you access through it. Your access to any such content is at your own risk. You are prohibited from transmitting any content to or through the Site that (a) is offensive, obscene, pornographic, profane, libelous, defamatory, threatening, abusive, harassing, disrespectful, or otherwise objectionable; (b) violates the intellectual property rights of TSM, its suppliers, or any third party; (c) violates these Terms; and (d) contains any worms, viruses, malware, or any code of a destructive nature. You agree not to use the Site for any purpose that is unlawful or prohibited by these Terms. You agree to immediately notify TSM of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. TSM cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
ACCESS TO THE SITE
Access. Subject to these Terms, TSM grants you a non-transferable, non-exclusive, revocable, limited right to access and use the Site solely for your business or personal use (if a consumer) on an “as available” basis.
Access Restrictions. Your access rights are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise exploit the Site, whether in whole or in part, or any content displayed on the Site except for your use in accordance with these Terms; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site, except that the foregoing restrictions shall not apply if, but only to the limited extent that, applicable laws expressly prohibit such restrictions and require TSM to give you a limited right to take such action to render the Site interoperable with other software that you need to use, provided however that in this case, you shall first request the right to take such action from TSM, and TSM may decide (in its sole discretion) either to carry out the relevant action itself at a reasonable commercial fee or provide the information necessary to enable you to achieve such integration, subject to any additional reasonable conditions on the use of such information to ensure that TSM’s and its licensors’ proprietary rights remain protected; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not attempt to engage in or engage in, any potentially harmful acts that are directed against the Site (or any content therein), including but not limited to violating or attempting to violate any security features of the Site, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages or content contained in the Site, including introducing viruses, worms or similar harmful code, or interfering or attempting to interfere with the use of the Site by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Site. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
Site Modification. TSM reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that TSM will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
No Support or Maintenance. You acknowledge and agree that TSM will have no obligation to provide you with any support or maintenance in connection with the Site. By using the Site, you acknowledge that you are solely responsible for the safety of your hardware, software, and data for the duration of your use of it. You also accept liability for any of your actions while using the Site.
MEMBERSHIPS
Free One-Year Membership. TSM may, from time to time and in its sole discretion, offer you a complimentary one-year membership to a TSM product. TSM reserves the right to stop offering this complimentary one-year membership at any time in its sole discretion, with or without notifying you. The complimentary one-year membership will automatically convert to a paid membership upon expiry of the complimentary one-year membership. Unless you cancel your membership prior to the end of the complimentary one-year membership, we will begin invoicing you or, if applicable, charging your payment method on an annual basis for your membership upon expiration of the complimentary one-year membership period. This clause does not apply if you or the entity that you represent has a written agreement that has been signed with TSM, in which case the terms of the signed agreement will prevail.
Paid Membership. If you benefit from a complimentary one-year membership to a TSM product, or otherwise purchase a membership to a TSM product (in each case, a “Membership”), you acknowledge and agree that your Membership will renew automatically on an annual basis unless and until you cancel your Membership or we terminate it. If you benefit from a complimentary one-year membership, your Membership will auto-renew annually after expiry of the complimentary one-year membership. If you otherwise purchased a membership, your Membership period and the cost of the Membership will be disclosed prior to purchase. You acknowledge and agree that TSM will invoice you or, if applicable, automatically charge your payment method each calendar year on the calendar day corresponding to the start of the paying portion of your Membership. You may cancel your Membership at any time, and you will continue to have access through the end of your Membership period (or complimentary one-year membership, if applicable). You will not have the right to receive any pro-rated refund if you cancel your Membership period halfway through a billing cycle. You can cancel your Membership by logging into your Account and following the instructions. You must cancel your Membership at least 24 hours in advance of the end of each billing cycle in order to avoid being charged for the next calendar year’s Membership. This clause does not apply if you or the entity that you represent has a written agreement that has been signed with TSM, in which case the terms of the signed agreement will prevail.
INDEMNIFICATION
You agree to indemnify and hold TSM and its officers, employees, and agents harmless from any liability, losses (including but not limited to any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs, including associated court or arbitration costs and attorneys’ fees, and all other professional costs and expenses), damages, claims or demands, made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. TSM reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TSM, and you agree to cooperate with TSM’s defense of these claims. You agree not to settle any matter without the prior written consent of TSM. TSM will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
CONTENT AND LICENSES
Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by TSM or TSM’s suppliers. Neither these Terms nor your access to the Site transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. All The Step Manager, Inc. content, graphics, and trademarks are protected by U.S. and international copyright and trademark laws, and laws governing intellectual property. TSM reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
Your Content. TSM does not claim ownership of any documentation, text, queries, or other content that you upload, input, or otherwise make available on or via the Site (“Make Available” and such content, “Your Content”). You hereby grant to TSM and its affiliates a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, transferable, sublicensable right and license to reproduce, adapt, publicly perform, publicly display, distribute, transmit and otherwise use Your Content for the purpose of providing the Site and related services to you. You represent and warrant that you have all rights and authority necessary to grant the foregoing license.
User Inputs and Outputs. The Site utilizes software and technology, including artificial intelligence, to process user inputs to the Site, such as text prompts asking questions about management, training, and other content (the “Input”), and generate and return outputs based on such Inputs (“Output”). TSM does not claim ownership of any of your Inputs or Outputs. In addition to the license granted in Section 5b., you acknowledge that Inputs and Outputs may be used by TSM to train, develop, enhance, evolve and improve its (and its affiliates’) AI models, algorithms and related technology, products and services (including for labeling, classifications, content moderation and model training purposes). As such, you hereby grant to TSM and its affiliates a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, transferable, sublicensable right and license to use any Inputs and Outputs Made Available by you or otherwise generated in connection with your use of the Site at any point, in connection with the purposes described herein.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to TSM through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that TSM has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to TSM a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Site and/or TSM’s business.
INTERACTION WITH OTHER USERS
Your interactions with other Site users are solely between you and such users. You agree that TSM will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, TSM is under no obligation to become involved.
RELEASE
To the maximum extent permitted by applicable law, you hereby release and forever discharge TSM, its officers, employees, agents, successors, and assigns from, and hereby waive and relinquish each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injury, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
DISCLAIMER OF WARRANTY
THE SITE, AND SERVICES AND OUTPUTS MADE AVAILABLE VIA THE SITE, ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. TSM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. TSM AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SITE, SERVICES MADE AVAILABLE VIA THE SITE, OR OUTPUTS WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, SERVICES OR OUTPUTS, ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SITE, AS WELL AS ANY OUTPUT, IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SITE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
FROM TIME TO TIME, TSM MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT TSM’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TSM OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY (WHETHER IN TORT (INCLUDING FOR NEGLIGENCE), BREACH OF STATUTORY DUTY, BREACH OF CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE) FOR ANY (I) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR (II) LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, LOSS OF GOODWILL, OR ANY OTHER CATEGORY OF DAMAGE (REGARDLESS OF WHETHER THESE TYPES OF LOSS OR DAMAGE SET OUT IN THIS SUB-SECTION (II) ARE DIRECT, INDIRECT OR CONSEQUENTIAL), IN EACH CASE, ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE, OR INABILITY TO USE, THE SITE (INCLUDING ANY OUTPUTS THEREFROM), AND EVEN IF TSM HAS BEEN ADVISED OF OR OUGHT TO HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES ARISING. YOUR ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YOU AGREE THAT THE AGGREGATE LIABILITY OF TSM FOR ALL CLAIMS ARISING OUT OR IN ANY WAY CONNECTED TO THE SITE (INCLUDING ANY OUTPUTS THEREFROM) (WHETHER IN TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, BREACH OF CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE) WILL NOT EXCEED FIFTY U.S. DOLLARS ($50 USD). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT TSM’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
TERM AND TERMINATION
These Terms will remain in full force and effect while you are authorized to use the Site. TSM may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at its sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. TSM will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account.
REVISIONS
TSM reserves the right to update and change these Terms at any time in its discretion. Notice will be provided by displaying a dialog upon login with the updated Terms and their effective date. Changes will be effective immediately for new users of the Site. Your continued use of the Site following notice of such changes will indicate your acknowledgment and acceptance of such changes.
CHOICE OF LAW; VENUE; MANDATORY ARBITRATION
Governing Law and Jurisdiction. These Terms and your use of the Site (as well as any non-contractual disputes arising out of or in connection with them) shall be interpreted by and subject to the laws of the State of Ohio, U.S.A., including its statutes of limitations, and without regard to choice or conflicts of law principles. The parties agree to the jurisdiction of the state or federal courts, as applicable, located in Youngstown, Ohio.
ARBITRATION AGREEMENT. Please read this Arbitration Agreement carefully. It is part of your contract with TSM and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
All claims and disputes between the parties (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the Site that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.
(i) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.
(ii) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(iii) Emergency Equitable Relief. Either party may seek emergency equitable relief before a state or federal court of competent jurisdiction as identified in Section 12(a) in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(iv) Claims Not Subject to Arbitration. Claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
(v) Applicable Law and Jurisdiction. In any circumstances where the Arbitration Agreement permits the parties to litigate in court, the parties agree that the exclusive jurisdiction and venue identified in Section 12(a) shall apply.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to TSM should be sent via overnight courier or certified mail to:
Attn: Legal Department, With Nate Media, LLC, 125 W McKinley Way, Suite 5250 Youngstown Ohio 44514.
After TSM receives Notice, you and TSM may attempt to resolve the claim or dispute informally. If you and TSM do not resolve the claim or dispute within thirty (30) days after TSM receives Notice, either party may begin arbitration proceedings.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”) under its then-current Consumer Arbitration Rules (“Rules”). The Rules, and instructions on how to file an AAA proceeding, appear at https://adr.org/
Time Limits. If you or TSM pursue arbitration, the arbitration action must be initiated and/or demanded within the applicable statute of limitations and within any deadline imposed under the Rules for the pertinent claim.
Enforceability. If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue identified in Section 12(a) shall govern any claim.
Survival. This Arbitration Agreement will survive termination of the Terms and your access to the Site.
GENERAL
Data Processors. TSM engages third-party processors to provide the necessary hardware, software, networking, storage, and related technology to run the Site.
Export. The Site may be subject to U.S. and international export control laws. You agree to comply with all applicable export control laws, and you shall not export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from TSM, or any products utilizing such data, in violation of such export laws or regulations.
Entire Terms. These Terms constitute the entire agreement between you and TSM regarding the use of the Site. TSM’s failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable for any reason, the other provisions of these Terms will be unimpaired, and the invalid or unenforceable provision will be deemed deleted. The parties shall negotiate in good faith to agree on a replacement provision that accomplishes the intention of the parties to the fullest extent possible.
Agreement Updates. When changes are made, TSM will make a new copy of these Terms available on the Site, and we will also update the “EFFECTIVE DATE” date at the top of these Terms. TSM may require you to provide consent to the updated Terms in a specified manner before further use of the Site is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SITE.
APPENDIX A
IN THE EVENT YOU ARE A CONSUMER END USER, THE TERMS OF THIS APPENDIX A APPLY TO YOU AND ARE INCORPORATED INTO THE TERMS SET FORTH ABOVE. THIS APPENDIX A APPLIES SOLELY WITH RESPECT TO CONSUMER END USERS. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE MAIN BODY OF THE TERMS AND THIS APPENDIX A, THIS APPENDIX A WILL CONTROL AND SUPERSEDE TO THE EXTENT OF SUCH CONFLICT.
Subscriptions. If you purchase a Membership on a time-limited basis (a “Subscription”), the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals in accordance with your elections at the time of purchase. TSM reserves the right to change the timing of our billing. TSM reserves the right to change the Subscription pricing at any time in accordance with Section 13 (Agreement Updates). If changes to the Subscription price occur that impact your Subscription, TSM will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 1(b) (Cancelling Subscriptions) of this Appendix A. TSM is not obligated to provide the Site to you until TSM accepts your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication.
Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew at TSM’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews will be annual unless otherwise designated in your Account. By subscribing, you authorize TSM to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if TSM does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that TSM may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
Cancelling Subscriptions. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must log in to your Account and follow the instructions on the Site. All cancellations must be made at least 24 hours prior to the renewal of your Subscription, otherwise your Subscription will be renewed for another term of equivalent duration to the prior term.
Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with TSM and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and TSM agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Site, any communications you receive, any products sold or distributed through the Site or these Terms and prior versions of these Terms, including claims and disputes that arose between you and us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and TSM may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or TSM may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of these Terms as well as claims that may arise after the termination of these Terms.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and TSM. If that occurs, TSM is committed to working with you to reach a reasonable resolution. You and TSM agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost, and mutually beneficial outcome (“Informal Dispute Resolution”). You and TSM therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to TSM that you intend to initiate an Informal Dispute Resolution Conference should be sent by regular mail to our offices located at 125 W McKinley Way, Suite 5250 Youngstown Ohio 44514. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address, and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND TSM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and TSM are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 2(a) (Applicability of Arbitration Agreement) of this Appendix A. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND TSM AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 2(I) (BATCH ARBITRATION) OF THIS APPENDIX A, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 2(i) (Batch Arbitration) of this Appendix A. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and TSM agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Ohio. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or TSM from participating in a class-wide settlement of claims.
Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and TSM agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and TSM otherwise agree, or the Batch Arbitration process discussed in Section 2(i) (Batch Arbitration) of this Appendix A is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and TSM agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Ohio and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 2(i) (Batch Arbitration) of this Appendix A is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 2(d) (Waiver of Class and Other Non-Individualized Relief) of this Appendix A, including any claim that all or part of Section 2(d) (Waiver of Class and Other Non-Individualized Relief) of this Appendix A is unenforceable, illegal, void or voidable, or that such Section 2(d) (Waiver of Class and Other Non-Individualized Relief) of this Appendix A has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 2(i) (Batch Arbitration) of this Appendix A, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 2(i) (Batch Arbitration) of this Appendix A. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or TSM need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and TSM agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against TSM by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite the resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by TSM.
You and TSM agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective, and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt-Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Attn: Legal Department, With Nate Media, LLC., 125 W McKinley Way, Suite 5250 Poland Ohio 44514 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in Section 2(d) (Waiver of Class or Other Non-Individualized Relief) of this Appendix A, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with TSM as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time-barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if TSM makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to TSM at Attn: Legal Department, With Nate Media, LLC, 125 W McKinley Way, Suite 5250 Youngstown Ohio 44514, your continued use of the Site, including the acceptance of products and services offered on the Site following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Site, any communications you receive, any products sold or distributed through the Site or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. TSM will continue to honor any valid opt-outs of the Arbitration Agreement that you made to a prior version of these Terms.