These Terms and Conditions (this "Agreement") concern the websites and mobile applications operated, hosted, and/or published by Kalkomey Enterprises, LLC (together with its affiliates and related entities, "Company") (together with the websites' and mobile applications' respective pages and features, the "Platform") and all associated services and products provided on, through, or in relation to the Platform (the "Services"). This Agreement is made and entered into by and between you and any person helping you access or use the Platform or the Services, whether as a guest or a registered user (collectively, "you" or "your"), on the one side, and Company on the other side. You and Company are sometimes referred to herein, individually, as a "Party" and, collectively, as the "Parties".
Please read this Agreement carefully before accessing or using the Platform and/or the Services because it constitutes a legally binding contract between you and Company. This includes the "Dispute Resolution" clause contained in this Agreement, which provides for binding arbitration and waivers of jury trials and class actions.
You are automatically accepting and agreeing to the most recent version of this Agreement whenever you access or use the Platform and/or the Services; and your continuing access or use of any of the foregoing reaffirms your acceptance and agreement in each instance.
If you do not accept and agree to this Agreement in its entirety, then you are strictly prohibited from accessing or using the Platform and/or the Services.
Company may supplement, amend or otherwise modify this Agreement at any time. Such modifications will be posted on this or another page of the Platform, as Company deems appropriate in its sole discretion, and such modifications shall be deemed effective as of their stated effective or modification dates. It is your responsibility to carefully review this Agreement each time you access or use the Platform or the Services.
The Platform and the contents on the Platform are intended solely for personal, non-commercial use. You may download or copy the content of the Platform and other downloadable materials displayed on the Platform for your personal use only. No right, title, or interest in any such downloaded content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as expressly provided hereunder), publish, transmit, distribute, display, modify, create derivative works from, sell, or exploit in any way any of such content or the Platform.
- Eligibility.The Platform is offered only to users eighteen (18) years of age or older, or otherwise the age of majority in each user's respective jurisdiction, and who have accepted this Agreement, except where a minor of thirteen (13) years of age or older has received the consent of the minor's parent or legal guardian to access the Platform. By accessing or using the Platform or the Services, you represent and warrant to Company that you meet these eligibility requirements. You agree to comply with all applicable laws for accessing and using the Platform or the Services.
- Privacy.Company respects the privacy of others. Company's policies concerning the collection and use of your personal information in connection with the Platform are set forth in Company's Privacy Policy, which you should carefully review each time you access or use the Platform or the Services.
- Your Devices.Certain portions of the Platform may be configured for, and Company may offer the Platform through, certain computers, tablets, smart phones or other electronic devices ("Device(s)"), and this Agreement shall apply with equal force and measure to your access and use of the Platform through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly access and use the Platform. Company does not guarantee that the Platform or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network. If you access or use the Platform through a particular Device, then you hereby acknowledge and agree that information about your use of the Platform through that Device or its carrier or network (such as, by way of example only, the identity of your Device, or your Device's carrier or network) may be communicated to Company and/or certain third parties (such as, by way of example only, your Device's carrier or network). All or any part of the voice, message and data fees, rates, charges and taxes of your Device's carrier or network, or another third party, may apply to your access or use of the Platform. Company is not responsible for, and you further accept full responsibility for, all Device carrier and network fees, rates, charges and taxes which may apply, if any.
- Ownership.The Platform and all elements and derivatives of the Platform (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation, and expressions), as well as all copyrights, trademarks, trade secrets, and other intellectual properties of the foregoing, are owned, licensed, or permissibly used by Company. In no event shall you have or retain any rights, title, or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of Company's or its licensors' respective rights and remedies under applicable law. For the avoidance of doubt, this Agreement permits you to use the Platform and the Services for your personal, non-commercial use only.
- User Account.
- Registration. As explained further herein, to secure the right to access and use the registration-only pages or features of the Platform, you may be required to register with and create a personal user account with Company through the Platform (a "User Account"), as well as reaffirm your acceptance of and agreement to this Agreement and those additional terms, conditions and policies referenced herein, as Company may require from time-to-time. As part of the registration process, you may be required to satisfy certain conditions precedent imposed by Company (including, for example, providing additional information to Company and entering into additional agreements with Company). Unless otherwise permitted by Company in writing, you may only have one (1) non-transferable User Account.
- User Account Activity and Information. You are responsible for all activity that occurs under your User Account and are prohibited from authorizing or allowing any third party to access or use your User Account. Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password). You should also maintain accurate, complete, and up-to-date information in your User Account (including, without limitation, maintaining a valid and current payment method and email address) because your failure to do so may result in your inability to access, use, or receive all or any part of the Platform and/or Company's termination of this Agreement. For the sake of security, you must immediately notify Company if you suspect that a third party has gained access to or is making any use of your User Account without authorization. For the avoidance of doubt, Company has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors, and vendors to access and use, the information in your User Account to facilitate the exercise and performance of Company's rights and obligations under this Agreement (including, without limitation, the Services), the operation of the Platform, and/or any other rights, obligations, operations, products, and services related to the Platform, the Services, your User Account, or the subject matter of this Agreement (including, without limitation, payments, and communications).
- Indemnification in Connection with User Account. If you fail to comply with any terms or conditions of Section 5(b) above (whether intentionally or unintentionally), then you accept full responsibility for the consequences thereof (including, without limitation, any unauthorized charges and payments, any unauthorized changes to your User Account information and settings, and any unauthorized access or use of your User Account); and you agree to indemnify, release, and hold harmless Company, Company's parents, subsidiaries, and other affiliates, and their respective officers, directors, managers, owners, partners, agents, employees, representatives, trustees, assigns, transferees, contractors, vendors, and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties, and expenses (including costs and reasonable outside attorney fees) incurred by or asserted against any such indemnitees, arising out of or in connection with your failure to comply with such terms or conditions.
- Rights, Permissions, and Consents.
- License of the Platform. Subject to the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, personal, freely-revocable, non-transferable, and non-sub-licensable license to access and view the various publicly displayed pages of the Platform, and to view the information and content found thereon. You must not access or use for any commercial purposes any part of the Platform or any services or materials (including, without limitation, the Services) available on or through the Platform. Your unauthorized use of the Platform or any breach by you of this Agreement will automatically terminate this license.
- License of User Materials. All names, information, statements, communications, and any other content that you submit to or publish on, through, or in relation to the Platform, including those which you submit to or publish on any online social media account (e.g., Facebook, Twitter, Instagram) that you own and link or otherwise associate with the Platform, if any and as applicable, are hereinafter defined as the "User Materials". You hereby grant Company an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual, and universe-wide license for Company to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive, and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any language, manner, medium, or form, whether now known or hereinafter devised, as Company sees fit in its sole discretion. For the avoidance of doubt, the foregoing is not intended to conflict with any provision of Company's Privacy Policy.
- Reservation of Rights. Nothing in this Agreement restricts or limits Company's rights, title, or interests in or to the Platform, the Services, the User Materials, or any elements or derivatives of the foregoing.
- Warnings; Disclaimers. Please note that the User Materials might become the subject of public disclosure. Thus, Company is not responsible for, and expressly disclaims any liability arising from or in connection with, its use of any User Materials in accordance with the terms and conditions of this Agreement. For the avoidance of doubt, the foregoing is not intended to conflict with any provision of Company's Privacy Policy.
- Suspension or Termination of Service; Disclaimer.Company has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Platform. Company shall not be liable to you or any third party for any loss or damage that is caused by or arises from or in connection with any such suspension or termination (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service, or loss of content).
- Products and Services.
- Sale of Products and Services. Company or its affiliates or licensees might offer, sell, license, or otherwise make available various products or services (which may include Company's own products and services or the products and services of third parties) on, through, or in relation to the Platform, some of which might only be made available to you upon completion and submission of an online form or other instructions provided to you by Company or which may be available exclusively online or in limited quantities on or through the Platform. Company has the right to refuse its products and services to you or to any geographic region or jurisdiction, including if it suspects that you are in any way involved in fraudulent or illegal activity, and may contact your payment method issuer, law enforcement, or others and share information relating to your payments, as applicable, if Company believes doing so will prevent a violation of the law or financial loss. Prices for, and descriptions of, any products or services offered on or through the Platform are subject to change without notice and in the sole discretion of Company. Company reserves the right to discontinue any product or service at any time. You understand and agree that certain sales of such products or services may be subject to additional terms and conditions of Company.
- Additional Transactions with Company. You also understand and agree that certain transactions between you and Company may be subject to certain additional terms and conditions of Company.
- Payments.
- Sales Transactions. Sales transactions conducted on or through the Platform will take place through an online shopping cart system (the "Shopping Cart"). Once you proceed to "check-out" or the like, you will be able to review your order, update quantities, remove items, and enter promotional codes, if any, as applicable.
- Cancellation of Transactions. Company reserves the right to refuse any order you place. Company may, in its sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same User Account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that Company makes a change to or cancels any of your orders, Company may attempt to notify you by contacting the billing address, phone number, or email provided at the time the order was placed. Company further reserves the right to limit or prohibit orders that, in Company's sole discretion, appear to be placed by dealers, resellers, or distributors.
- Payment Authorization. If you provide Company with your payment information, then you authorize Company to do the following as Company deems necessary, although Company has no obligation to do so: (i) share your payment information with any third-party payment processing vendor(s), as applicable; (ii) obtain your updated payment information from your payment issuer and any third-party payment processing vendor(s), as applicable; and (iii) use your payment information to charge payments that accrue under your accounts with Company in accordance with this Agreement.
- Payment Obligations. You agree that you are responsible for the payment of all amounts that accrue under your account(s) with Company, the Platform, and/or in relation to the performance of the Services. You also agree to be responsible for all payments, fines, penalties and other liabilities incurred by any such person or entity that arise out of or relate to payments that you authorize or accept on or through the Platform, including, without limitation, all fees, penalties, taxes and duties; and to be responsible for all expenses (including costs and reasonable outside attorney fees) and interest incurred by any such person or entity to collect any overdue amounts.
- Waiver of Claims in Connection with Unauthorized Payments. To the fullest extent permitted by law, you agree to waive all claims against Company and its affiliates related to any unauthorized payments made on, through, or in relation to your account(s) with Company, Company's third-party sellers and payment processing vendor(s), any other third-party providers, or any other person or entity, regardless of whether they are authorized or unauthorized.
- Accurate Payment Information. You represent and warrant to Company that any payment information you provide on or through the Platform is current, complete, and accurate, and that you will promptly notify Company if your payment information has changed (such as a change in address or expiration date), if your payment method has been cancelled, or if you become aware of a breach of security.
- Pay-up Front Courses. Pay-up-front courses may be offered by Company (the "Courses"). Payments for all Course and related fees (the "Course Fees") are non-refundable. Certain of the Courses must be successfully completed within ninety (90) days of payment, after which time (i) your access to such Course will expire (even if you have not yet accessed or claimed the Course), and (ii) you may need to pay additional Course Fees if you would like to re-register for such Course. If a Course with a ninety (90) day requirement is not successfully completed within ninety (90) days of payment, or you fail to satisfy any other requirements for any Courses that are necessary for Company to submit your Course Fees to any applicable State agency, such Course and Course Fees will be forfeited and Company will be under no obligation to refund or pay the Course Fees to the applicable State agency or any other person. The Courses may include features whereby the utilization of the Course may be assigned to other recipients (each, a "Recipient"), each of whom may need to create their own User Account in order to claim, access, and complete the Course; provided, that once a Course has been assigned to a particular Recipient, it may not thereafter been assigned to any other person or entity.
- Subscriptions; Auto-Renewal of Fees.
- If you select a subscription Service on or through the Platform that has an auto-renewal feature (a "Recurring Subscription") (including, but not limited to a Course with an auto-renewal feature), then you authorize Company to maintain your account information and charge that account automatically upon the renewal of the Recurring Subscription you choose, with no further action required by you. In the event that Company is unable to charge your account as authorized by you when you enrolled in the Recurring Subscription, Company may, in its sole discretion: (A) bill you for the Recurring Subscription and suspend your access to the applicable Service until payment is received, and/or (B) seek to update your account information through third-party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you.
- Company may change the price for Recurring Subscriptions from time to time in its sole discretion. Price changes for Recurring Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by applicable law, you accept the new price by continuing to use your Recurring Subscription after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by canceling your Recurring Subscription. Therefore, please make sure you read any notification of price changes (which may be published on a page of the Platform) carefully.
- Recurring Subscription payments are non-refundable, and there are no refunds or credits for partially used periods. You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, Company will not refund any Recurring Subscription fees already paid by you to Company. Following any such cancellation, you will continue to have access to the applicable Service through the end of your current Recurring Subscription period.
- At any time, and for any reason, Company may provide a refund, discount, or other consideration to some or all of Company's users ("Credits"). The amount and form of such Credits, and the decision to provide them, are at Company's sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate Company to provide Credits in the future under any circumstances.
- If you subscribed to any Recurring Subscription on the Platform, you may cancel your Recurring Subscription by contacting Support at support@kalkomey.com or by following the prompts under the "Settings" in your User Account.
- No Refunds. Except as otherwise expressly stated in this Agreement, all sales and payments made on, through, or regarding the Platform or any products or services offered, marketed, sold, or provided on, through, or in relation to the Platform are final, irrevocable, and not subject to or eligible for refund or return, in whole or in part.
- Electronic Communications.
- Express Consent. You hereby expressly consent to Company sending or otherwise communicating with you for any purpose (including, without limitation, for advertising, telemarketing, or other marketing or promotional purposes, or for sending or notifying you about special offers, updates, newsletters or other informational purposes) via any electronic means or forms as Company deems appropriate in its sole discretion, whether through the Platform, through your User Account, by personal communication, by email, by automatic telephone dialing system, by telephone, by artificial or prerecorded voice, by online social media, by text message (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) or by other electronic media means or forms. By giving such consent, you agree that no such communication shall violate the CAN-SPAM Act, the Telephone Consumer Protection Act, or any other applicable laws, rules, or regulations. Voice, message, and data fees, rates, charges, and taxes may apply to you, and you are responsible for payment of the same. You are not required to grant the foregoing consent as a condition for the purchase or license of any Company products or services.
- Email Opt-Out. You may opt-out of receiving any electronic messages from Company as described in Section 10(a) above at any time by any reasonable means, including, without limitation and by way of example, by sending an email to privacy@kalkomey.com with a subject line of "Opt-Out of Electronic Communications". You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Platform and/or your ability to receive certain messages or notifications from Company.
- Prohibited Activities.You shall not engage in any of the following activities at any time with respect to the Platform: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy, or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Company or its licensors with respect to the Platform); (c) the reproduction of the Platform or any communications, information or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by Company herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening, or abusive); (e) the publication of a person's or entity's personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer, or randomly generated content; (g) supplying or publishing any information or statement on, through, or in relation to the Platform that is false, misleading, deceptive, or incorrect; (h) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers, or applications; (i) the systematic retrieval or copying of any information or content found on, through, or in relation to the Platform or its servers to directly or indirectly create or compile, in whole or in part, a collection, compilation, database, or directory; (j) the use of any software, program, process, device, application, or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Platform or its servers; (k) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through, or in relation to the Platform or its servers; (l) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Platform or its servers; (m) any act that gains or attempts to gain unauthorized access to computer systems, networks, information, or materials on, through, or in relation to the Platform or its servers; or (n) any other act that Company becomes aware of and believes in good faith is improper, illegal, or harmful to the Platform or its servers, or any person, entity, or property.
- Links to Other Platforms, Apps, Networks, and Servers.
- Linked Technologies. The Platform or any communications sent on, through, or as a function of the Platform may contain links to third-party websites, networks, platforms, servers, or applications, and, similarly, third-party websites, networks, platforms, servers, applications, or communications may contain links to the Platform (collectively, "Linked Technologies"). The Linked Technologies are not under the control of Company or the Platform, and any such communications contain the outgoing links as a convenience to you, if for any purpose.
- Disclaimer About Linked Technologies. Company is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information, and illegal content). Company does not make, nor has Company made, any representations or warranties (whether express, implied, or otherwise) concerning the terms of use or service, privacy policies, agreements, information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies; nor shall the fact that the Platform may link to or from any Linked Technologies constitute an affiliation with, association with, or endorsement of such Linked Technologies or any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from such Linked Technologies. If you decide to access any Linked Technologies, then you do so at your own risk.
- Take Down.Company reserves the right, but not the obligation, to take down or otherwise exclude from the Platform, without notice or recourse, any communications, statements, names, photographs, information, and/or content made or submitted by you or others on or through the Platform that Company believes, at any time and in its sole discretion, to be infringing or otherwise in violation of the proprietary rights, the right of privacy, or the right of publicity of any person or entity; defamatory, disparaging, or embarrassing of or towards any person or entity; profane, indecent or obscene; derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; false, misleading or deceptive; or otherwise illegal or something that Company considers unsuitable for the Platform or its users.
- Copyright Infringement.Company respects the copyrights of others and prohibits users from uploading, posting, distributing, or otherwise transmitting any materials on or through the Platform, or from engaging in any activities on or through the Platform, which violate the copyrights of others. It is the policy of Company to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of any subscriber and account holder (which may include, without limitation, you) to access, register with, and use the Platform who is a repeat copyright infringer. If Company becomes aware that a user who is not a subscriber or account holder (which may also include, without limitation, you) is a repeat copyright infringer, then it is the policy of Company to take reasonable steps within its power to terminate, and Company reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of that user to access and use the Platform. The following procedures shall apply in the event that you or another person or entity alleges that the reproduction, public performance, public display, digital transmission, or other use of a work found on the Platform infringes your copyright, the copyright of said person or entity, or any other intellectual property right owned by you or said person or entity. These procedures are intended to comply with 17 U.S.C. § 512 and any other applicable laws. By visiting, accessing, registering with, or using the Platform, you are automatically agreeing to comply with the following procedures.
- Takedown Notice (Materials). To report any materials on the Platform that violate the copyrights of others, you must send Company a written communication that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Takedown Notice (Information Location Tools). To report any information location tools (e.g., hyperlinks) on the Platform that refer or link users to an online location containing infringing material or infringing activity, you must send Company a written communication that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the reference or link to material or activity claimed to be infringing that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Counter-Notice. If you believe that any material you have uploaded, posted, distributed, or otherwise transmitted on the Platform has been removed by mistake or misidentification, and if you have the right to upload, post, distribute or otherwise transmit the material at issue, then you may send Company a written communication that includes substantially the following:
- A physical or electronic signature of the user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The user's name, address, and telephone number, and a statement that the user consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the user's address is outside of the United States, for any judicial district in which the service provider may be found, and that the user will accept service of process from the person who provided notification under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
- Copyright Administrator. The fore
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