Confidently Terms of Service

Last Updated: June 17, 2019

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Confidently, Inc. (formerly LAUNCH PERFORMANCE, INC) (together with our affiliates, “Confidently”, “we”, or “us”) provides an online performance mindset coaching community and related products, services, content and features through Confidently websites and apps, and Confidently-controlled social media pages (including on Facebook, Instagram, Spotify and Twitter). To make these Terms easier to read, the Confidently Sites and Apps, along with the Confidently-controlled social media pages are collectively called the “Confidently Service” or “the Services”. By registering as a member or by visiting, browsing, or using the Confidently Service in any way, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and Confidently.

In using this product, you may be asked to grant Confidently access to select portions of your personal data through API’s that you approve and we connect to (such as Fitbit or RiotGames), so that Confidently can provide more personalized services to you.  This data is part of what enables Confidently to learn about your performance and give you personalized content.

You can deny or revoke this access at any time.  The data you share with Confidently may be used in an anonymized way to make the platform better for all users.  Studies of aggregate, anonymized data may be published or shared in any forum. By agreeing to this agreement, and granting us access to connect to these outside data providers, you are accepting these terms.

PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 20 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND CONFIDENTLY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-⁠WIDE ARBITRATION.

If you do not wish to be bound by these Terms, you may not access or use the Confidently Service. Certain elements of the Confidently Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Confidently Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.

Who May Use the Confidently Service

Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to register with and use the Confidently Service. Minors that can safely use the Confidently app, may do so, provided that (a) they and their parent/guardian has signed a Confidently waiver and release.

We may, in our sole discretion, refuse to offer the Confidently Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Confidently Service is revoked where these Terms or use of the Confidently Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the Confidently Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.

License to Use the Confidently Service

License. Subject to your compliance with these Terms, Confidently grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Confidently Service for your own personal, non-commercial purposes. This license includes the right to view Content (defined below) available on the Confidently Service. This license is personal to you and may not be assigned or sublicensed to anyone else.

Restrictions. Except as expressly permitted in writing by an authorized representative of Confidently, you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Confidently Service, nor will you take any measures to interfere with or damage the Confidently Service. All rights not expressly granted by Confidently in these Terms are reserved.

Privacy

Our Privacy Policy forms a part of these Terms. Please review the Privacy Policy to learn about:

What information we may collect about you;

What we use that information for; and

With whom we share that information.

Membership Requirements Registration

To enjoy full access to the Confidently Service, you must register as a member of the Confidently Service and enter into a subscription agreement for access to our workout materials, Content and features (a “Subscription”).  Your Subscription is governed by the Membership Terms. You must provide complete and accurate registration information to Confidently, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.

Membership.  Additional information about our packs and memberships is available on our website.

Profile Information and Picture. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Confidently’s sole discretion).

Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Confidently Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.

Membership Structure & Fees

Confidently will provide information on its then-current membership and Subscription requirements on the Confidently Site and/or by other means through the Confidently Service. Features and prices are subject to change.

Terms & Conditions; Account Deletion

Term. These Terms begin on the date you first use the Confidently Service and continue as long as you have an account with us and/or continue to use the Confidently Service.

Termination. Confidently may, in Confidently’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if Confidently determines that you have violated these Terms or that your conduct or User Content would tend to damage Confidently’s reputation or goodwill. If Confidently deletes your account, you may not re-register for or use the Confidently Service under any other user name or profile. Confidently may block your access to the Confidently Service to prevent re-⁠registration.

Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by Confidently will terminate. The following sections survive termination: Privacy, User Content, Indemnification, No Warranties, Limitation of Liability, Safety Warnings, Intellectual Property, Arbitration & Class Action Waiver, Governing Law and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and Confidently is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes and any other Content or features provided through the Confidently Service. Confidently, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.

User Content

“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Confidently Service; and (ii) ”User Content” means any content that users (including you) provide to be made available through the Confidently Service.  Content includes, without limitation, User Content.

User Content also includes any data that the user authorizes Confidently to access through API’s or third parties.

Any User Content, whether publicly posted or privately transmitted or authorized, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Confidently Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Confidently Service.

As between you and Confidently, you represent that you own (or have all rights necessary to grant Confidently the rights below to) all User Content that you submit to the Confidently Service, and that Confidently will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Confidently a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Confidently Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Confidently or through the Confidently Service about improving or adding new features or products to the Confidently Service or you otherwise provide feedback or testimonials, you hereby grant to Confidently a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback and testimonials for any purpose, without any notice, compensation or other obligation to you.

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Confidently Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

Rights & Terms for the App

a) Rights in App Granted. Subject to your compliance with these Terms, Confidently grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Confidently reserves all rights in and to the App not expressly granted to you under these Terms.

b) Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:

These Terms are between you and Confidently, and not with the App Provider, and Confidently (not the App Provider), is solely responsible for the App.

The App Provider has no obligation to furnish any maintenance and support services with respect to the App.

In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Confidently.

The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Confidently will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.

The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.

You must also comply with all applicable third party terms of service when using the App.

General Prohibitions and Confidently’s enforcement rights

You agree not to do any of the following:

a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;

b) Download and/or install any third party software and/or application on any Confidently hardware that is not expressly permitted by Confidently in writing;

c) Use, display, mirror or frame the Confidently Service or any individual element within the Confidently Service, Confidently’s name, any Confidently trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Confidently’s express written consent;

d) Access, tamper with, or use non-public areas of the Confidently Service, Confidently’s computer systems, or the technical delivery systems of Confidently’s providers;

e) Attempt to probe, scan or test the vulnerability of any Confidently system or network or breach any security or authentication measures;

f) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Confidently or any of Confidently’s providers or any other third party (including another user) to protect the Confidently Service or Content;

g) Attempt to access, scrape or search the Confidently Service or Content or download Content from the Confidently Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Confidently or other generally available third-party web browsers;

h) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

i) Use any meta tags or other hidden text or metadata utilizing a Confidently trademark, logo URL or product name without Confidently’s express written consent;

j) Use the Confidently Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Confidently;

k) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Confidently Service or Content to send altered, deceptive or false source-identifying information;

l) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Confidently Service or Content;

m) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Confidently Service;

n) Collect or store any personally identifiable information from the Confidently Service from other users of the Confidently Service without their express permission;

o) Copy, use, disclose or distribute any information obtained from the Confidently Service, whether directly or through third parties (such as search engines), without Confidently’s express written consent;

p) Impersonate or misrepresent your affiliation with any person or entity;

q) Violate any applicable law or regulation; or

r) Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Confidently Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Confidently Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Confidently Service and Confidently’s systems. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Confidently Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Member Interactions, Dealings with Third Parties

When interacting with other Confidently members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Confidently Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Confidently is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when visiting or taking classes at any of our studios, please be advised that Confidently is not responsible for any lost or stolen items and that visitors, guests and members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.

Indemnification

You agree to indemnify, defend, and hold harmless Confidently and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the Confidently Service, (ii) any User Content submitted by or on behalf of you or (iii) your violation of these Terms.

Third Party Software and applications

Downloading and/or installing any third party software and/or applications that are not expressly authorized by Confidently on any Confidently hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Confidently.

Third Party Links and Content

There may be links on the Confidently Service that let you leave the particular Confidently Service you are accessing in order to access a linked site that is operated by a third party. Confidently neither controls nor endorses these sites, nor has Confidently reviewed or approved the content that appears on them. Confidently is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Confidently is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.

No Warranties

Confidently reserves the right to modify the Confidently Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Confidently Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Confidently Service. Confidently has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Confidently Service is suitable for all users or that it will continue to be available for any length of time.

 

Confidently provides the Confidently Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Confidently Service at your own risk. Other than as expressly provided in writing by Confidently in connection with your purchase of a Confidently product, to the extent permitted by law, Confidently expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Confidently makes no representations or warranties:

That the Confidently Service is or will be permitted in your jurisdiction;

That the Confidently Service will be uninterrupted or error-⁠free;

Concerning any Content, including User Content;

Concerning any third party’s use of User Content that you submit;

That the Confidently Service will meet your personal or professional needs;

That Confidently will continue to support any particular feature of the Confidently Service.

Concerning sites and resources outside of the Confidently Service, even if linked to from the Confidently Service.

To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE CONFIDENTLY SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

Limitation of Liability

To the fullest extent permitted by law: (i) Confidently shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Confidently Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) Confidently’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Confidently over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Confidently’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Confidently and you.

Safety Warnings

THE CONFIDENTLY SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE CONFIDENTLY SITE OR HEARD ON THE CONFIDENTLY SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE CONFIDENTLY SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.

NOTHING STATED OR POSTED ON THE CONFIDENTLY SITE OR AVAILABLE THROUGH ANY CONFIDENTLY SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE CONFIDENTLY SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, CONFIDENTLY MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE CONFIDENTLY SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

In becoming a user of Confidently with the intent of using the Confidently Service, you affirm that either (A) all of the following statements are true: (i) no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician or general practitioner has been specifically consulted by you and approved of your use of the Confidently Service.

If applicable, you further affirm that (a) you are not pregnant, breastfeeding or lactating; unless (b) your physician or general practitioner has been specifically consulted and approved your use of the Confidently Service.

Confidently reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.

Intellectual Property

You acknowledge that the Confidently Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Confidently-generated content, and content provided to Confidently by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between you and Confidently, Confidently owns a copyright in the selection, coordination, arrangement and enhancement of all content in the Confidently Service. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Confidently Service, you may download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these Terms. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the Confidently Service, Confidently hereby grants you a limited, revocable, non-exclusive, non-transferable right and license to access and use the content made available on the Confidently Service for your personal, non-commercial use of the Confidently Service and for no other purpose whatsoever. Unless otherwise specified, copying or modifying any content or using content for any purpose other than your personal, non-commercial use of the Confidently Service, including use of any such content on any other website or networked computer environment, is strictly prohibited.

The Confidently name, logos and affiliated properties, designs and marks are the exclusive property of Confidently Interactive, Inc. and/or its affiliates, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained on the Confidently Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent.

Any other trademarks appearing on the Confidently Service are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the Confidently Service. All rights not expressly granted in these Terms are reserved.

Copyright / DMCA Policy

Confidently respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party copyright or other intellectual property rights.

If properly notified that any materials infringe a third party’s copyright, Confidently will promptly remove such materials from the Confidently Site in accordance with the U.S. Digital Millennium Copyright Act (“DMCA”), the U.K. Copyright Designs and Patents Act 1988 (“CDPA”), the U.K. Digital Economy Act 2010 (“DEA”), or equivalent laws which are applicable in other jurisdictions. In addition, Confidently may, when appropriate, terminate the accounts of repeat copyright infringers.

Filing a DMCA, CDPA or DEA Notice (or equivalent legal notice), to Remove Copyrighted Content – for Copyright Holders:

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

Your name, address, telephone number, and email address.

A description of the copyrighted work that you claim has been infringed.

A description of where on the Confidently Site the material that you claim is infringing may be found, sufficient for Confidently to locate the material (e.g., the URL).

A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.

A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Your electronic or physical signature.

You may submit this information, or any counternotice, via:

Email, with the subject line “Copyright Notices” to: tom@confidently.app

Confidently may disclose any communications concerning DMCA, CPDA, DEA or other applicable copyright notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.

If you have questions about the legal requirements of a CPDA, DEA or other applicable copyright notice, you should consult a legal advisor such as a solicitor and obtain professional legal advice and/or representation.

ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.

a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Confidently agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Confidently entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Confidently are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

b) Exceptions and Opt-out. As limited exceptions to Section 20(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Confidently’s Legal Department at the Confidently address set out below within thirty (30) days following the date you first agree to these Terms.

c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Confidently will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than U.S. $10,000, unless the arbitrator finds your Dispute to be frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

e) Class Action Waiver. YOU AND CONFIDENTLY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.

f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “Modification”, if Confidently changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Confidently’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Confidently in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

g) Severability. With the exception of any of the provisions in Section 20(e) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

  1. Contracting Entities, Governing Law and Jurisdiction

If your contract for the Confidently Service is with Confidently, Inc., these Terms shall be governed by the laws of the State of California, United States of America, without regard to principles of conflicts of law. If your contract for the Confidently Service is with another Confidently entity, these terms shall be governed by the laws of the jurisdiction under which that Confidently entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

Subject to the agreements in Section 20 above, (i) if your contract for the Confidently Service is with Confidently, Inc., exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in Los Angeles, CA, United States of America, and you consent to the jurisdiction of those courts, and (ii) if your contract for the Confidently Service is with another Confidently entity, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the courts located in the jurisdiction under which that Confidently entity is incorporated, and you consent to the jurisdiction of those courts.

  1. Interpretation; Severability; Waiver; Remedies

Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Confidently in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Confidently. Confidently’s rights and remedies hereunder are cumulative and not exclusive.

  1. Successors; Assignment; No Third Party Beneficiaries

These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Confidently’s prior written consent. Confidently may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.

  1. Notices

You consent to receive all communications including notices, agreements, disclosures, or other information from Confidently electronically. Confidently may communicate by email or by posting to the Confidently Service. For support-related inquiries, you may email Support.

Nothing in these Terms or otherwise limits Confidently’s right to object to subpoenas, claims, or other demands.

  1. Modification

We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Confidently Site and/or through the Confidently Service. Modifications will be effective on the date that they are posted to the Confidently Site. It’s important that you review the Terms whenever we update them before you use the Confidently Service. If you continue to use the Confidently Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20(f) “Effect of Changes on Arbitration,” you may not use the Confidently Service anymore. Because the Confidently Service is evolving over time we may change or discontinue all or any part of the Confidently Service, at any time and without notice, at our sole discretion.

  1. Entire Agreement

These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Confidently Site from time to time:

Privacy Policy

Membership Terms

Warranty

Return Policy

Boutique Return Policy

In the event of a conflict between any policies posted on the Confidently Service and these Terms, these Terms will control. These Terms represents the entire understanding between Confidently and you regarding the Confidently Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

  1. Force Majeure

Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

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