Last Updated Date: October 6, 2023
The following terms and conditions (the “Terms of Use”) constitute an agreement between you and 365 Better Living“, ” we“, “us“, or “our“) and govern the use of and access to the websites or digital properties that are owned and operated by 365 Better Living that link to these Terms of Use (collectively, the “Site“), our email communications, newsletters, resources, and our other services (each a “Service” and collectively, the “Services“), and all content and features contained in the foregoing.
These Terms of Use apply to all users accessing or using the Site or the Services in any way, including without limitation users who are contributors of content, information and other materials or services, registered or otherwise. By clicking on the “Subscribe” or similar button, registering with us, clicking on any content or advertisement, browsing the Site, or accessing or using the Services in any way, you represent that: (1) you have read, understand, and agree to be bound by these Terms of Use; (2) you are of legal age to form a binding contract with 365 Better Living; and (3) you have the authority to enter into these Terms of Use personally or on behalf of any company you have named as the user, and to bind that company to these Terms of Use. The term“you”refers to the individual or legal entity, as applicable, identified as the user when you registered, browsed, accessed, or used the Site or the Services.IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICES.
PLEASE BE AWARE THAT THE SECTION OF THIS AGREEMENT TITLED “DISPUTE RESOLUTION,” BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO (USA), CONSISTENT WITH THE U.S. FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPOF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms“) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.“
PLEASE NOTE THATTHIS AGREEMENT IS SUBJECT TO CHANGE BY 365 Better Living IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, 365 Better Living will make a new copy of the Terms of Use available on the Site and any new Supplemental Terms will be made available from within, or through, the affected Service. We will also update the “Last Updated” date at the top of these Terms of Use. 365 Better Living may require you to provide consent to the updated Agreement in a specified manner before further use of the Site or the Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Site and the Services. Otherwise, your continued use of the Site or the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. USE OF 365 Better Living PROPERTIES.
1.1. 365 Better Living Properties. The Site, the Services, the content available on or contained in any of the foregoing, including without limitation any text, software, scripts, source code, graphics, photos, sounds, music, videos, and interactive features (collectively, “Content“), and the trademarks, service marks and logos contained therein (each, a “365 Better Living Property” and collectively, the “365 Better Living Properties“) are owned by or licensed to 365 Better Living in perpetuity and are protected by and subject to trademark, patent, and copyright laws throughout the world and other intellectual property rights under United States and foreign laws. Subject to the Agreement, 365 Better Living grants you a limited license to reproduce portions of 365 Better LivingProperties for the sole purpose of using the Services for your personal (non-commercial) purposes. Unless otherwise specified by 365 Better Living in a separate license, your right to use any and all 365 Better Living Properties is subject to the Agreement.
1.2. Eligibility. The 365 Better Living Properties may only be used or accessed by individuals who are: (a) at least sixteen (16) years old; (b) of legal age to form a binding contract; and (c) not a person barred from using 365 Better Living Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.
1.3. Updates. You understand that the 365 Better Living Properties are evolving. You acknowledge and agree that 365 Better Living may update the 365 Better Living Properties with or without notifying you. Any future release, update, or other addition to the 365 Better Living Properties shall be subject to the Agreement.
1.4. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the 365 Better LivingProperties or any portion of the 365 Better Living Properties; (b) you will not frame or utilize framing techniques to enclose any trademark, logo, or other 365 Better Living Properties (including images, text, page layout or form) of 365 Better Living;(c) you will not use any metatags or other “hidden text” using 365 Better Living’s name or trademarks;(d) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the 365 Better Living Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);(f) you will not access the 365 Better Living Properties in order to build a similar or competitive site or service;(g) except as expressly stated herein, no part of the 365 Better Living Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you will not remove or destroy any copyright notices or other proprietary markings contained on or in the 365 Better Living Properties; and (i) you will not use the Site or the Services for hate speech, hate crimes or violence; to send spam or other unsolicited bulk email; for computer or network hacking or cracking; or to transmit any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality or security of the Site or the Services.
1.5. Third-Party Materials. As a part of the 365 Better Living Properties, you may have access to materials that are hosted or made available by another party, such as advertisements displayed on the Site or in our email communications. You agree that it is impossible for 365 Better Living to monitor such materials and that you access these materials at your own risk.
1.6. Information You Provide. When using the 365 Better Living Properties, including when you subscribe to, sign up for, or otherwise register for the Site or a Service, you agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the relevant Service including, without limitation, your email address; and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS 365 Better Living FROM ANY THIRD PARTY CLAIMS, LIABILITY, DAMAGES OR COSTS ARISING FROM YOUR PROVIDING 365 Better Living WITH INFORMATION THAT IS UNTRUE, INACCURATE, NOT CURRENT, OR INCOMPLETE.
1.7. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to 365 Better Living Properties, including but not limited to, a mobile device that is suitable to connect with and use 365 Better Living Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing 365 Better Living Properties.
2. RESPONSIBILITY FOR CONTENT.
2.1. Types of Content. You acknowledge that all Content, including 365 Better LivingProperties, is the sole responsibility of the party from whom such Content originated. This means that you, and not 365 Better Living, are entirely responsible for all Content that you contribute, upload, submit, post, e-mail, transmit or otherwise make available (“Make Available“) through 365 Better Living Properties (“Your Content“), and that you and other users of 365 Better Living Properties, and not 365 Better Living, are similarly responsible for all Content that you and they Make Available through 365 Better Living Properties (“User Content“). Our practices with respect to the privacy and security of such User Content are set forth in ourPrivacy Policy.
2.2. No Obligation to Pre-Screen Content. You acknowledge that 365 Better Living has no obligation to pre-screen User Content, including Your Content, although 365 Better Living reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that 365 Better Living pre-screens, refuses, or removes any Content, you acknowledge that 365 Better Living will do so for 365 Better Living’s benefit, not yours. Without limiting the foregoing, 365 Better Living shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
2.3. Storage. Unless expressly agreed to by 365 Better Living in writing elsewhere,365 Better Living has no obligation to store any of Your Content that you Make Available on 365 Better LivingProperties. 365 Better Living has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of 365 Better Living Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that 365 Better Livingretains the right to create reasonable limits on 365 Better Living’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Site and as otherwise determined by 365 Better Living in its sole discretion.
3. INTELLECTUAL PROPERTY.
3.1 365 Better Living Properties. Except with respect to Your Content and User Content, you agree that 365 Better Living and its suppliers own all rights, title, and interest in 365 Better LivingProperties. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any 365 Better Living Properties.
3.2. Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in 365 Better Living Properties.
3.3. Your Content. 365 Better Living does not claim ownership of Your Content. However, when you post or publish Your Content on or in 365 Better Living Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
3.4. License to Your Content. You grant 365 Better Living a fully paid, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing 365 Better Living Properties. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of 365 Better Living Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not 365 Better Living, are responsible for all of Your Content that you Make Available on or in 365 Better Living Properties.
3.5. Submitted Materials. Unless specifically requested, we do not solicit nor do we wish to receive any confidential, secret, or proprietary information or other material from you through the Site, by email or in any other way. Your agree that any ideas, suggestions, documents, proposals, creative works, concepts, blog posts and/or other materials submitted or sent to us (including, for example and without limitation, through our suggestion, feedback, wiki, forum, survey, blog or similar pages, or via email) (“Submitted Materials“) is at your own risk, will be deemed not to be confidential or secret and may be used by us in any manner consistent with ourPrivacy Policy. You agree that 365 Better Living has no obligations (including without limitation obligations of confidentiality) with respect to Submitted Materials. By submitting or sending Submitted Materials to us, you: (a) represent and warrant that the Submitted Materials are original to you, that you have all rights necessary to submit the Submitted Materials, that no other party has any rights thereto and that any “moral rights” in Submitted Materials have been waived; and (b) you grant us and our affiliates 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 Submitted Materials, and to sublicense the foregoing rights, in connection with the operation and maintenance of 365 Better Living Properties or 365 Better Living’s business, including for promotional and/or commercial purposes. We cannot be responsible for maintaining any Submitted Material that you provide to us, and we may delete or destroy any such Submitted Material at any time.
4. USER CONDUCT.
4.1. Cheating and Hacking. You agree that you will not, under any circumstances:
(a) Use cheats, exploits, automation software, bots, hacks, mods, or any unauthorized software designed to modify or interfere with any 365 Better Living Properties or any quiz or game experience;
(b) Interfere with or damage 365 Better Living Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Modify or cause to be modified any files that are a part of 365 Better Living Properties;
(d) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support 365 Better Living Properties; or (ii) the enjoyment of365 Better Living Properties by any other person;
(e) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon 365 Better Living Properties, or other attempts to disrupt 365 Better Living Properties or any other person’s use or enjoyment of 365 Better LivingProperties;
(f) Attempt to gain unauthorized access to 365 Better Living Properties, accounts registered to others, or to the computers, servers or networks connected to 365 Better Living Properties by any means other than the user interface provided by 365 Better Living, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of 365 Better Living Properties;
(g) Access, tamper with or use non-public areas of 365 Better Living Properties, 365 Better Living’s computer systems, or the technical delivery systems of 365 Better Living’s providers;
(h) Attempt to probe, scan, or test the vulnerability of any 365 Better Living Property, system, or network, or breach any security or authentication measures;
(i) Disrupt or interfere with the security of, or otherwise cause harm to, 365 Better LivingProperties, systems, resources, accounts, passwords, servers, or networks connected to or accessible through 365 Better Living Properties or any affiliated or linked sites; or
(j) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by 365 Better Living or any of 365 Better Living’s providers or any other third party (including another user) to protect 365 Better Living Properties.
4.2. General. In connection with your use of 365 Better Living Properties, you shall not:
(a) Make Available any Content that, in 365 Better Living’s sole discretion: (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, 365 Better Living personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; or
(g) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
5. INVESTIGATIONS.
365 Better Living may, but is not obligated to, monitor or review 365 Better Living Properties and Content at any time. Without limiting the foregoing, 365 Better Living shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although 365 Better Living does not generally monitor user activity occurring in connection with 365 Better Living Properties or Content, if365 Better Living becomes aware of any possible violations by you of any provision of the Agreement,365 Better Living reserves the right to investigate such violations, and 365 Better Living may, at its sole discretion, immediately terminate your license to use 365 Better Living Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
6. VIRTUAL CREDITS AND POINTS.
On the Site or in the Services, 365 Better Living may award, in its discretion, “virtual currency” including, but not limited to, virtual coins, cash, tokens, credits or points, all for use in the 365 Better Living Properties, such as trivia games or prize giveaways (“Virtual Credits“). 365 Better Living prohibits and does not recognize any purported transfers of Virtual Credit or other virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services. Accordingly, you may not trade, sell or attempt to sell any Virtual Credits for “real” money, or exchange such Virtual Credits for value of any kind outside of the Services. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination. Virtual Credits are not legal tender, and do not have any equivalent to any U.S. dollar amount and may not be converted into U.S. dollars. Virtual Credits may expire in the event that a user does not access or use their Account for ninety (90) days. Virtual Credits may be revoked, rescinded, or otherwise cancelled at any time, with or without notice, including in the event you violate this Agreement.
7. THIRD-PARTY SERVICES.
7.1. Third-Party Properties and Promotions. 365 Better Living Properties may contain links to third-party Sites, services, or applications (“Third-Party Properties“) or display promotions or advertisements for third parties, such as promotions or advertisements for products and services made available by third parties (“Third-Party Promotions“). We do not provide, own, or control any of the products or services that you can access through Third-Party Promotions. When you click on a link to a Third-Party Property or Third-Party Promotion, we may not warn you that you have left 365 Better Living Properties and are subject to the terms and conditions (including privacy policies) of another Site or destination. Such Third-Party Properties and Third-Party Promotions are not under the control of 365 Better Living. 365 Better Living is not responsible for any Third-Party Properties or Third-Party Promotions, including the accuracy, timeliness, or completeness of such content. 365 Better Living provides these Third-Party Properties and Third-Party Promotions only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or Third-Party Promotions, or any product or service provided in connection therewith. You use all links in Third-Party Properties and Third-Party Promotions at your own risk. When you leave the 365 Better LivingProperties, the Agreement and 365 Better Living’s policies will not govern your activities on Third-Party Properties. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Properties or providers of any Third-Party Promotions, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2. Advertising Revenue. 365 Better Living reserves the right to display Third-Party Promotions before, after, or in conjunction with User Content posted on or in the 365 Better LivingProperties, and you acknowledge and agree that 365 Better Living has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by 365 Better Living as a result of such advertising).
8. DISCLAIMERS.
8.1. GENERAL DISCLAIMER. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE 365 Better Living PROPERTIES IS AT YOUR SOLE RISK, AND THE 365 Better Living PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. 365 Better Living, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS (COLLECTIVELY, THE “365 Better Living PARTIES“) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SITE.
8.2. NO WARRANTY FOR THE 365 Better Living PROPERTIES. 365 Better Living PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) 365 Better Living PROPERTIES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF 365 Better Living PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF 365 Better Living PROPERTIES WILL BE ACCURATE OR RELIABLE.
8.3. NO RESPONSIBILITY FOR DOWNLOADED CONTENT. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH 365 Better Living PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS 365 Better Living PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
8.4. NO WARRANTY FOR ADVICE AND INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 365 Better Living OR THROUGH 365 Better Living PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.5. NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT365 Better Living PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD 365 Better Living PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
9. LIMITATION OF LIABILITY.
9.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL 365 Better Living PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT 365 Better Living HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF 365 Better Living PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE 365 Better Living PROPERTIES;(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH 365 Better Living PROPERTIES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON 365 Better Living PROPERTIES; OR (E) ANY OTHER MATTER RELATED TO365 Better Living PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN 365 Better Living PARTY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY AN 365 Better LivingPARTY’S NEGLIGENCE; OR (II) ANY INJURY CAUSED BY AN 365 Better Living PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL 365 Better Living PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) ONE HUNDRED DOLLARS;OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN 365 Better Living PARTY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY AN365 Better Living PARTY’S NEGLIGENCE; OR (II) ANY INJURY CAUSED BY AN 365 Better Living PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3. User Content. 365 Better Living ASSUMES NO RESPONSIBILITY FOR ANY TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
9.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 365 Better Living AND YOU.
10. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is 365 Better Living’s policy to terminate membership and/or access privileges of any Registered User or any provider of Submitted Materials who repeatedly infringes copyright upon prompt notification to 365 Better Living by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on365 Better Living Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on 365 Better Living Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for 365 Better Living’s Copyright Agent for notice of claims of copyright infringement is as follows: DMCA Agent, 1550 Larimer Street, Suite 431, Denver, CO 80202.
11. REMEDIES.
11.1. Violations. If 365 Better Living becomes aware of any possible violations by you of the Agreement, 365 Better Living reserves the right to investigate such violations. If, as a result of the investigation, 365 Better Living believes that criminal activity has occurred, 365 Better Livingreserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. 365 Better Living is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in 365 Better Living Properties, including Your Content, in 365 Better Living’s possession in connection with your use of 365 Better Living Properties, to: (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of 365 Better Living, its Registered Users or the public, and all enforcement or other government officials, as 365 Better Living in its sole discretion believes to be necessary or appropriate.
11.2. Breach. In the event that 365 Better Living determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for 365 Better Living Properties, 365 Better Living reserves the right to: (a) warn you via e-mail (to any e-mail address you have provided to 365 Better Living) that you have violated the Agreement; (b) delete any of Your Content provided by you or your agent(s) to 365 Better LivingProperties; (c) discontinue your registration(s) with any of 365 Better Living Properties; (d) discontinue your subscription to any Services; (e) block your access to the 365 Better LivingProperties and to your Account; (f) notify or send Content to or fully cooperate with the proper law enforcement authorities for further action; or (g) pursue any other action which365 Better Living deems to be appropriate.
12. TERM AND TERMINATION.
12.1. Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use 365 Better LivingProperties, unless terminated earlier in accordance with the Agreement.
12.2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of: (a) the date you first used365 Better Living Properties; or (b) the date you accepted the Agreement and will remain in full force and effect while you use any 365 Better Living Properties, unless earlier terminated in accordance with the Agreement.
12.3. Termination of Services by 365 Better Living. 365 Better Living may terminate this Agreement, including your right to use the Site or Services at any time, with or without notice, including in the event 365 Better Living determines that you are in breach of this Agreement.
12.4. Termination of Services by You. If you want to terminate one or more of the Services provided by 365 Better Living, you may do so by: (a) notifying 365 Better Living at any time; and (b) discontinuing your use of the Service(s). Your notice should be sent, in writing, to365 Better Living’s address set forth below.
12.5. Effect of Termination. Termination of one more of the Services also includes removal of access to the Service(s) and barring of further use of the Service(s). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Virtual Credits and Your Content. 365 Better Living will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. INTERNATIONAL USERS.
The 365 Better Living Properties are controlled and offered by 365 Better Living from its facilities in the United States. 365 Better Living is headquartered in the United States and we provide the 365 Better LivingProperties for use only by persons located in the United States. In the event that the365 Better Living Properties can be accessed from outside of the United States and contain references to Services and Content that are not available in your country or jurisdiction, such references do not imply that 365 Better Living intends to announce such Services or Content in your country or jurisdiction. 365 Better Living makes no representations that the 365 Better Living Properties are appropriate or available for use in other locations. Those who access or use the 365 Better LivingProperties from outside of the United States do so at their own volition and are responsible for compliance with local law.
14. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this section (“Arbitration Agreement“) carefully. It requires you to arbitrate disputes with 365 Better Living and limits the manner in which you can seek relief from us.
14.1.Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Site, to any products sold or distributed through the Site, or to any aspect of your relationship with 365 Better Living, will be resolved by binding arbitration, rather than in court, except that: (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or365 Better Living may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).This Arbitration Agreement shall apply, without limitation, to all disputes, claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
14.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute, claim or request for relief to our registered agent Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808, County of New Castle. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, 365 Better Living will pay them for you. In addition, 365 Better Living will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to: (a) determine the scope and enforceability of this Arbitration Agreement; and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and 365 Better Living. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4. Waiver of Jury Trial. YOU AND 365 Better Living HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and365 Better Living are instead electing that all disputes, claims or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section titled “Applicability of this Arbitration Agreement” above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Colorado. All other disputes, claims or requests for relief shall be arbitrated.
14.6. 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:legal@365 Better Living.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your 365 Better Living username (if any), the email address where you receive 365 Better Living emails or that you used to set up 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 this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.7. Severability. Except as provided in the section titled “Waiver of Class or Other Non-Individualized Relief” above, 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.
14.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with 365 Better Living.
14.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if 365 Better Living makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing 365 Better Living at the following address:365 Better Living, Attn: Legal, 1550 Larimer Street, Suite 431, Denver, CO, 80202.
15. GENERAL PROVISIONS.
15.1. Electronic Communications. The communications between you and 365 Better Living may take place via electronic means, whether you visit 365 Better Living Properties or send 365 Better Livinge-mails, or whether 365 Better Living posts notices on 365 Better Living Properties or communicates with you via e-mail. For contractual purposes, you: (a) consent to receive communications from365 Better Living in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that 365 Better Living provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
15.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without365 Better Living’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3. Force Majeure. 365 Better Living shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
15.4. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and 365 Better Living agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Denver, Colorado.
15.5. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPOF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
15.6. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
15.7. Notice. Where 365 Better Living requires that you provide an e-mail address, you are responsible for providing 365 Better Living with your most current e-mail address. In the event that the last e-mail address you provided to 365 Better Living is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, 365 Better Living’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to 365 Better Living at the following address:365 Better Living, Attn: Legal, 1550 Larimer Street, Suite 431, Denver, CO, 80202. Such notice shall be deemed given when received by365 Better Living by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.8. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.9. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.10. Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
