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Terms and Conditions
WE TAKE FIVE
Terms of Service
Effective: March 20, 2021
Last updated: June 5, 2023
The following Terms of Service (“Terms”) govern the use of and access to the WE TAKE FIVE Service operated and provided by WE TAKE FIVE LLC, in connection with WE TAKE FIVE Service. Your right to access and use the Service is expressly conditioned on acceptance of these Terms.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY USING THE WE TAKE FIVE SERVICE, OR BY SIGNING A SUBSCRIPTION OR CONTRACTUAL ORDER, YOU AGREE TO BE BOUND BY THESE TERMS. THE TERMS AND THE APPLICABLE SUBSCRIPTION ORDER SHALL BE COLLECTIVELY KNOWN AS THE “AGREEMENT.”
1. DEFINITIONS
1.1 “Customer” means any Business Entity, Business Entity Representative, or Individual who has purchased or obtained a subscription or contract for the WE TAKE FIVE Service.
1.2 “Authorized Users” means employees or contractors of Customer (a) who is the primary benefactory of the Service, (b) whose duties require access to or use of the WE TAKE FIVE Service or Confidential Information, and (c) whose legal obligations to protect confidential and proprietary information require protection of the WE TAKE FIVE Service and Confidential Information as set out in this Agreement.
1.3 “End Users” means any person or entity other than the Customer or Agents with whom Customer or its Agents interact using the Service.
1.4 “Unauthorized Users” means any person or entity other than the Customer, Authorized Users, End Users, who might (a) accidentally or purposefully witness Customer using WE TAKE FIVE Service, (b) be in the same space, including but not limited to a room, home space, office, or public space; while Customer is using WE TAKE FIVE Service, (c) be a minor or dependant of the Customer requiring an immediate attention while Customer is using WE TAKE FIVE Service (d) any other unforeseen users.
1.5“Customer App(s)” means the mobile application(s) of Customer, and any Authorised Users.
1.6 “Customer Data” means all data and other information supplied, submitted, uploaded, or inputted to WE TAKE FIVE LLC via email or Site by or on behalf of Customer, Authorized Users, or End Users, including any Personal Data.
1.7 “Fees” means the Service fees payable by Customer as described in the WE TAKE FIVE Subscription Contract Order.
1.8 “WE TAKE FIVE Materials” means all materials created, developed and provided to Site Visitor, Customer and the Authorized Users in connection with or arising from the Service, published on the Site, or as a part of this Agreement, Subscription Order, and / or Contract Order, including, but not limited to, all ideas, images, videos, concepts, interaction format, unique exercises, methodologies, inventions, systems, platforms, interfaces, tools, utilities, templates, forms, report formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used in providing the Service and Results (including any correction, improvement, derivative work, extension or other modification to the Service made, created, conceived or developed by, including at Customer’s request or as a result of feedback provided by Customer).
1.9 “WE TAKE FIVE Suggestions” means any advice, recommendation, suggestion, direction, or guidance, including but not limited to specific physical and anatomical cues, encouragement, dietary, fitness, or health advice, as well as any other verbal, video, or written advice recommendation, suggestion, direction, or guidance, that occurs before, during, or after WE TAKE FIVE Service, as well as via Site, social media, email, text, blogs, or any other delivery channels, such as but not limited to WE TAKE FIVE marketing collateral.
1.10 “Inappropriate Behavior” means conduct that is unwarranted and is interpreted to be demeaning or offensive. Inappropriate behavior may include but is not limited to bullying, intimidation, threats, nudity, requests for sexual favors, making sexually explicit comments, uninvited massages, sexually suggestive gestures, catcalls, ogling, racially inappropriate comments, or any other behaviors deemed inappropriate or offensive by a WE TAKE FIVE Entity, or Third Party Instructor. WE TAKE FIVE reserves the right to define inappropriate behavior.
1.11 “Personal Data” means, together, any information that can or could be used to identify, contact, or locate the person to whom the information pertains (including names, addresses, telephone numbers, email addresses, IP addresses, and account numbers) and any information from which that identification or contact information can or could be derived.
1.12 “Service” “WE TAKE FIVE Service” or “WE TAKE FIVE” means Paid and Unpaid services and functionality to which Customer has subscribed or contracted, made available to Customer and the Authorized Users.
1.13 “Site” means the WE TAKE FIVE website located at https://www.wetakefive.com, as well as past current and future WE TAKE FIVE social media channels including but not limited to https://www.linkedin.com/company/we-take-five, https://twitter.com/wetakefive, https://www.tiktok.com/@we_take_five, https://wetalkfive.medium.com, https://www.youtube.com/channel/UCRnFIRNz9y3Gnai8hKcHAEQ, https://www.instagram.com/wetakefive, and https://www.facebook.com/wetakefive.
1.14 “WE TAKE FIVE Subscription or Contract Order” means the physical, electronic or online order form, or personalized email or contract as applicable, which further describes the Service purchased by Customer.
1.15 “ WE TAKE FIVE Entity”, “We,” “Us” or “Our” means Roza Saveleva and any representatives of WE TAKE FIVE LLC, including but not limited to Lauren Hlubny, Lorian Gish, and Whitney Reed, who might operate and provide the WE TAKE FIVE Service.
1.16 “Business Entity” means company, business, enterprise, or corporation that is choosing to purchase WE TAKE FIVE Service.
1.17 “Business Entity Representative” means an individual or individuals including but not limited to HR personnel, CEO, founder, or any other individual or individuals acting on behalf of the Business Entity while purchasing and using WE TAKE FIVE Service.
1.18 “Individual” means Customer choosing to access WE TAKE FIVE Service on their own merit, without associating with a Business Entity.
1.19 “Paid Service” means any WE TAKE FIVE Service that includes a monetary transaction between WE TAKE FIVE LLC and Customer.
1.20 “Unpaid Services” means any WE TAKE FIVE Service that is publicly available or offered free of charge. May include any WE TAKE FIVE materials shared via WE TAKE FIVE social media channels, as well as WE TAKE FIVE Live Sessions.
1.21 “Third Party Instructor” means an instructor recruited by WE TAKE FIVE as a WE TAKE FIVE Service provider and / or, who might operate and provide the WE TAKE FIVE Service.
1.22 “Site visitor” means any person accessing the Site as well as Customer, Customer representatives, Authorized Users, Unauthorized Users, Third Party Instructors, End Users, and Individuals.
2. GENERAL CONDITIONS
2.1 WE TAKE FIVE Service. Customer is hereby granted the non-transferable, non-exclusive right and license to access the WE TAKE FIVE Service via WE TAKE FIVE Live Sessions, during the Term of Subscription in a manner consistent with the WE TAKE FIVE Subscription or Contract Order that Customer has subscribed to, for Customer’s internal business purposes.
2.2 WE TAKE FIVE Service and Scheduling.
All the scheduling, re-scheduling, and cancelations, must be done according to the WE TAKE FIVE Subscription or Contract Order.
2.3 License Restrictions. Customer and Site Visitor shall have no rights or licenses with respect to the Service or the WE TAKE FIVE Materials except as expressly provided in the Agreement. Without limiting the generality of the foregoing, except as expressly provided in the Agreement, Customer and Site Visitor may not (a) copy, share, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or the WE TAKE FIVE Materials; (b) make the Service or WE TAKE FIVE Materials available to any third party; (c) use the Service or the WE TAKE FIVE Materials on a service bureau basis; (d) create derivative works based on the Service or WE TAKE FIVE Materials; (e) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or the WE TAKE FIVE Materials or during the use and operation of the Service or the WE TAKE FIVE Materials or (f) use the Service, WE TAKE FIVE Materials or any of Our Confidential Information (as defined below) to create any service, software or documentation that is substantially the same or has similar functionality as the Service.
2.4 Use and Usage. Customer and Site Visitor is responsible for compliance with the provisions of these Terms by Authorized Users, Unauthorized Users, and End Users and for any and all activities that occur under Customer’s Account. Access to and use of the Service is restricted to Customer only under Customer’s subscription to the Service. Customer agrees and acknowledges that each Authorized User will access their service via their personal/work email and that an Authorized User Login may only be used by one (1) individual. Customer will not share an Authorized User Login among multiple individuals. Customer and its Authorized Users are responsible for maintaining the confidentiality of all Login information for Customer’s Account.
2.5 Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and We (and Our licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, WE TAKE FIVE Materials, aggregate data, and analyses.
2.6 Inappropriate Behavior and Harassment. WE TAKE FIVE reserves the right to terminate this agreement if the behavior of the Customer, Authorized Users, End Users, Unauthorised Users, Business Entity Representatives, and Site Visitor, is deemed inappropriate by WE TAKE FIVE LLC. WE TAKE FIVE LLC also reserves the right to hold Customer, Authorized Users, Unauthorised Users, End Users, Business Entities, and Business Entity Representatives, Site Visitors legally accountable in court if Inappropriate Behavior causes any physical, emotional, or other type of trauma to any WE TAKE FIVE Entity, or a Third Party Instructor, during, before, after or as a result of providing WE TAKE FIVE Service.
3. DATA
3.1 Data Rights. In connection with the operation of the Service, WE TAKE FIVE LLC collects or shall otherwise have access to Customer Data, including but not limited to any text, photo, video or audio recordings produced or created by an End User’s use of the WE TAKE FIVE Service. As between Customer and WE TAKE FIVE LLC, all Customer Data shall be exclusively owned by Customer, however, Customer grants WE TAKE FIVE LLC the right to use and reproduce the Customer Data solely as necessary for WE TAKE FIVE LLC to provide the Service. Customer grants WE TAKE FIVE LLC the right to share video and audio clips (up to 10 seconds long) recorded during the WE TAKE FIVE Service for commercial and promotional purposes, unless the Contract Order states otherwise. Customer further grants WE TAKE FIVE LLC the right to analyze Customer Data relating to the provision, use and performance of the Service (such analysis, “Analysis Results”), provided that WE TAKE FIVE LLC shall not use, disclose, or analyze Customer Data in a way that allows Customer, Authorized Users, End Users, or any individual to be identified by a third party, and WE TAKE FIVE LLC shall be free during and after the Term hereof to (i) use such Analysis Results internally to improve and enhance the Service and for development, diagnostic and corrective purposes in connection with the Service, and (ii) disclose such Analysis Results; in each case solely in aggregate and not in a manner that specifically identifies or could be used to identify Customer, any Authorized User, or any End User. WE TAKE FIVE reserves the right to reuse all general knowledge, experience, and know-how, including ideas, concepts, processes, and techniques related to the Service or learned during provision of the Service, including, without limitation, that which We could have acquired performing the same or similar services for another Customer. WE TAKE FIVE shall not use or disclose to any third party any Customer Data in violation of any laws or regulations or without the prior specific written consent of Customer.
3.2 Video Recording. WE TAKE FIVE reserves the right to record all sessions that take place as a result of the Customer’s use of the WE TAKE FIVE Service or any other event hosted by WE TAKE FIVE LLC. WE TAKE FIVE LLC will not sell any video recordings pertaining to the Customer’s use of the WE TAKE FIVE Service without written consent by the Customer.
4. FEES; PAYMENT
Customer agrees to pay WE TAKE FIVE LLC all Fees due with respect to Customer’s use of the Service as specified in the WE TAKE FIVE Subscription or Contract Order. All Fees are payable in USD. All Fees are non-refundable, due immediately, and to be complete except as otherwise provided herein.
5. TERM; TERMINATION
5.1 Term. The Term and Termination of this Agreement is set forth in the WE TAKE FIVE Subscription or Contract Order, and/or upon usage of any Unpaid Service by the Customer.
5.2 Termination for Cause. Either party may terminate the Agreement by written notice effective if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice of the breach from the non-breaching party.
5.3 Effect of Termination. Sections 1, 3, 5, 6.3, 7, 8, 9, 10, 11.2 and 12 of the Terms and all obligations that accrued prior to the effective date of termination and all remedies for breach of these Terms shall survive expiration or termination of the Agreement. Upon termination or expiration of the Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and at Our request, return or destroy all of Our Materials, and certify such return or destruction in writing. Upon termination of a WE TAKE FIVE Subscription or Contract Order, We reserve the right to access and store all Customer Data and Service Data collected during the Service, but have no obligation to maintain or provide any Customer Data or Service Data to Customers, Customer’s legal representation, or any third party, except for, citizens of the countries where the right to request access to the personal information we collect from you, change that information, or delete it in some circumstances, is granted by law. To request to review, update, or delete your personal information, please submit a request by emailing roza@wetakefive.com. We will respond to your request within 30 days.
6. WARRANTY DISCLAIMERS
THE WE TAKE FIVE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE TAKE FIVE LLC AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, THE “WE TAKE FIVE ENTITIES”) MAKES NO WARRANTY (I) THAT THE SERVICE, WE TAKE FIVE MATERIALS OR RESULTS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED. THE WE TAKE FIVE ENTITIES FURTHER DO NOT REPRESENT OR WARRANT THAT THE WE TAKE FIVE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DO THE WE TAKE FIVE ENTITIES WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICE. WE TAKE FIVE LLC MAKES NO WARRANTY THAT WE TAKE FIVE SERVICE WILL RESULT CUSTOMER’S MARGIN GROWTH, OR ANY OTHER FINANCIAL IMPROVEMENTS. THE WE TAKE FIVE ENTITIES HEREBY DISCLAIM (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7. INDEMNIFICATION
Customer and Site Visitor shall indemnify, defend, and hold harmless the WE TAKE FIVE LLC and WE TAKE FIVE Entities from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with (a) such Customer’s and Site Visitor’s use of the Site, Service or the WE TAKE FIVE Materials, (b) such Site Visitor’s and Customer’s actual or alleged infringement or misappropriation of the rights of any third party, including, without limitation, any intellectual property rights, privacy rights or publicity rights; and (c) such Site Visitor’s and Customer’s breach of any representations and warranties set forth in the Agreement. Site Visitor and Customer is solely responsible for defending any Claim against WE TAKE FIVE LLC or the WE TAKE FIVE Entities, subject to such WE TAKE FIVE Entities’ right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against the WE TAKE FIVE Entities, provided that such Site Visitor and Customer will not agree to any settlement related to any Claims without the WE TAKE FIVE Entities’ prior express written consent regardless of whether or not such settlement releases the WE TAKE FIVE Entities from any obligation or liability.
8. LIMITATION OF LIABILITY
8.1 EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 7 (INDEMNIFICATION), OR ANY BREACH OF SECTION 2 (GENERAL CONDITIONS), SECTION 3 (DATA) OR SECTION 10 (CONFIDENTIALITY), NEITHER CUSTOMER NOR THE WE TAKE FIVE ENTITIES, NOR THE THIRD PARTY INSTRUCTORS SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE WE TAKE FIVE ENTITIES BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
8.2 CUSTOMER AND SITE VISITOR UNDERSTANDS AND AGREES THAT WE TAKE FIVE ENTITIES ARE NOT LICENSED MEDICAL, FITNESS, OR HEALTH PROFESSIONALS. WE TAKE FIVE SUGGESTIONS DO NOT QUALIFY AS A MEDICAL DIAGNOSIS. WE TAKE FIVE LLC OR WE TAKE FIVE ENTITIES ARE NOT LIABLE FOR ANY PHYSICAL OR PSYCHOLOGICAL PAIN, SUFFERING, ILLNESS, DISFIGUREMENT, TEMPORARY OR PERMANENT DISABILITY, ECONOMIC OR EMOTIONAL LOSS, AND DEATH THAT MAY OR MAY NOT OCCUR (1) DURING, BEFORE, OR AFTER THE WE TAKE FIVE SERVICE (2) AS A RESULT OF A WE TAKE FIVE SUGGESTION (3) DUE TO A PRE-EXISTING CONDITION (4) DUE TO A COMBINATION OF ITEMS 1-3.
8.3 CUSTOMER CHOOSES TO TAKE PART IN ANY WE TAKE FIVE SERVICE IN THEIR OWN SPACE AND ARE ASSUMING ALL RESPONSIBILITY AND LIABILITY FOR BEING AWARE OF THEIR SURROUNDINGS AND LIMITATIONS, AND ABSOLVE WE TAKE FIVE LLC, WE TAKE FIVE ENTITIES, AND THIRD PARTY INSTRUCTORS OF ANY LIABILITY.
8.4 THIRD PARTY INSTRUCTOR IS NOT CONSIDERED A WE TAKE FIVE ENTITY, HENCE, WE TAKE FIVE LLC IS NOT RESPONSIBLE FOR ANY INTERACTIONS BETWEEN BOTH SITE VISITOR OR CUSTOMER AND THIRD PARTY INSTRUCTOR BOTH DURING AND OUTSIDE OF THE TERM OF THIS AGREEMENT. WE TAKE FIVE LLC IS NOT LIABLE FOR THE PAST, PRESENT, FUTURE ACTIONS BY A THIRD PARTY INSTRUCTOR BOTH OUTSIDE AND WITHIN THE TERMS OF THIS AGREEMENT AS WELL AS ANY UNRELATED ACTIVITY BY THIRD PARTY INSTRUCTOR DEEMED HARMFUL, DANGEROUS, OR INAPPROPRIATE.
9. CONFIDENTIALITY
9.1 Confidential Information. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, (i) which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, (ii) if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within fifteen (15) days of the disclosure or (iii) that is of a nature that should reasonably be considered to be confidential or proprietary. In the case of WE TAKE FIVE LLC, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
9.2 Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement. Except as otherwise permitted expressly by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
9.3 Customer App(s). In order to access the Service, Customer (the End User) may need or choose to download third party apps such as “Google Duo,” “Google Meet,”, “Zoom” and other third party apps that the Customer and Site Visitor choose to to access the WE TAKE FIVE Service and / or Site. WE TAKE FIVE LLC is not liable for any (A) loss of confidential information, (B) financial charges, losses, damages, (C) physical losses or damages to the Customer and / or Site Visitor, Customer’s and / or Site Visitor’s device or other property, occurring during, before, after, or as a result of the use of WE TAKE FIVE Service. 9.3 clause also applies to any and all Authorized Users, Unauthorized User, Accidental Users and End Users as well as their devices and property.
10. SPECIFIC TERMS FOR END USER(S)
10.1 In order to access the Service, Customer, Authorized Users, and End Users, may choose or need to download “Google Meet”, and/or any other third party apps.
10.2 Text Messaging and Data Fees. Note that, by using the Service, Customer may receive email or text messages on Customer's phone or mobile device with instructions to download and install one or more Customer App(s), which may cause Customer to incur usage charges or other fees or costs in accordance with Customer's wireless or data service plan. Additionally, if Customer chooses to download, install or use one or more Customer App(s) in connection with the Service, additional data usage charges may apply. Any and all such charges, fees, or costs are Customer's sole responsibility. It is the Customer’s responsibility to consult with Customer's wireless carrier to determine what rates, charges, fees, or costs may apply to Customer's use of the Service.
11. MISCELLANEOUS
11.1 Export Laws. Customer and Site Visitor acknowledge and agree that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data. Customer shall not export or re-export the WE TAKE FIVE Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.
11.2 Relationship of the Parties. The parties are independent contractors with respect to each other. The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship. No party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
11.3 Assignment. Neither party may assign the Agreement without the other party’s prior written consent which shall not be unreasonably withheld, provided that either party may, upon written notice to the other party, without the consent of other party, assign or transfer the Agreement to an affiliate or successor organization in connection with a merger, consolidation, change of control, conversion, sale of all or substantially all of its business or assets or similar transaction. Subject to the foregoing, the Agreement will insure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors. Any assignment or transfer or attempt to do so in violation of the Agreement shall be void.
11.4 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Agreement, except for Customer’s obligation to pay the Fees, due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties, and general Internet problems, , and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.5 Notices. All notices under the Agreement shall be given in writing via email to following address:
WE TAKE FIVE LLC:
Roza Saveleva
roza@wetakefive.com
Customer:
Via the contact information provided in the WE TAKE FIVE Subscription or Contract Order.
All notices shall be presumed to have been received when (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
11.6 Waiver. A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
11.7 Severability; Counterparts. In the event any provision of this Agreement or the application of any provision hereof to any person or circumstances is deemed to be invalid, illegal, inoperative, or unenforceable, in whole or in part, that invalid, illegal, inoperative, or unenforceable part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.
11.8 Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflicts of laws principles. The parties agree that the federal and state courts in New York, New York will have exclusive jurisdiction and venue under the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.9 Headings. The Section headings used in the Agreement and the attachments are intended for convenience only and shall not be deemed to supersede or modify any provisions.
11.10 Unauthorized use of the Site. Customer and Site Visitor shall not restrict access to the Site and / or WE TAKE FIVE Service. Customer and Site Visitor shall not copy, duplicate, share any of the WE TAKE FIVE Materials without direct reasonably visible acknowledgement of WE TAKE FIVE LLC, clearly stating that WE TAKE FIVE LLC is the sole owner of the WE TAKE FIVE Materials copied, duplicated, or shared. Customer and Site Visitor will not claim any WE TAKE FIVE Materials as their own.
11.11 Non-Solicitation. Customer or Site Visitor shall not, without the WE TAKE FIVE LLC’s prior written consent, directly or indirectly; (i) solicit or encourage any Third Party Instructor to discontinue Third Party Instructor’s partnership with WE TAKE FIVE LLC, (ii) recruit or hire Third Party instructor to provide any service outside of WE TAKE FIVE Subscription Order or Contract Order.
11.12 Entire Agreement. The Agreement, including any WE TAKE FIVE Subscription Order, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Any amendments to the Agreement shall only be valid if in writing and signed by each party. Nothing contained in any Customer purchase order, order acceptance form or other similar document shall in any way modify the Agreement or add any additional provisions to the Agreement.