Terms and Conditions
Terms and conditions that govern your use of 4WRD.COM & the 4WRD family of sites.
Last Updated: April 6, 2021
Welcome! Please read these terms of service (the “Terms of Service” or “TOS”) before using our websites and any online services, software, or apps provided by Clarke Consulting, LLC, d/b/a/ 4WRD and/or its parents, subsidiaries, or affiliates (“4WRD,” “we,” or “us” or “our”) that post a link to the TOS (the “Service”). The TOS govern each user’s (“you” or “your”) use of the Service.
These Terms of Service affect your legal rights, responsibilities and obligations, govern your use of the Service, are legally binding, limit 4WRD’s liability to you, and require you to indemnify us and to settle certain disputes through individual arbitration. Please note that nothing in these Terms of Service affects your mandatory statutory rights under applicable laws, to the extent that such rights apply to you and cannot be limited or excluded. If you do not wish to be bound by these TOS and any Additional Terms (defined below), do not use the Service and, where applicable, uninstall any Service downloads and applications.
In some instances, you may be subject to different or additional terms and conditions, policies and guidelines (“Additional Terms”) that are applicable to certain parts of the Service, such as the Subscriptions and Sales Terms . In the event of a conflict between the TOS and the Additional Terms, the Additional Terms shall control. 4WRD reserves the right to post changes to the TOS or the Additional Terms at any time. If we make any material changes to the TOS or the Additional Terms, we will post the updated version(s) here, along with its effective date, and notify you by email or by means of a notice on the Service. In the event that you have the TOS cached on your browser, the TOS that apply to you are the most recent version of the TOS that appear on a non-cached browser. If any TOS or Additional Terms changes are not acceptable, you must stop your use of the Service and, where applicable, uninstall any Service downloads and applications.
Table of Contents
1) Ownership; Your Rights to Use the Service and Content
2) Content You Submit; User Interaction Rules
3) Accounts; Subscription and Purchases; Service and Content Use Restrictions
4) Email Messages
5) Notice and Take Down Procedure for Claims of Infringement
6) Termination or Suspension
7) Disclaimers; Exclusions and Limitations of Liability
8) Arbitration and Dispute Terms
9) General Provisions
1) Ownership; Your Rights to Use the Service and Content.
- Ownership. The Service and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by 4WRD, our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Service is the property of 4WRD, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. 4WRD owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
- Your Rights to Use the Service and Content. Your right to use the Service and Content is subject to your strict compliance with these TOS and the Additional Terms. Your right to access and use the Service and the Content shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advanced notice or liability. As your right to access and use the Service and the content is personal to you, you may neither assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “4WRD Licensed Elements”):
- Display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
- Subject to any applicable Additional Terms, if the Service includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes Content, or to post our Content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on us, and only send to recipients you have permission to contact;
- If the Service includes a “Download” link next to a piece of content (including, without limitation, an image, an icon, a wallpaper, a music track, a video, a trailer, an RSS feed), you may only download a single copy of such content to a single Device;
- Download, install and use one copy of any software, including apps, that we make available on or through the Service (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; provided, however, that you understand and agree that (i) by allowing you to download the Software, 4WRD does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software’s owner (which may be 4WRD and/or its third-party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software, except as expressly authorized in these Terms or applicable Additional Terms, without the prior written consent of 4WRD; (iii) you may not assign, rent, lease, or lend the Software to any person or entity, and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law;
- If made available to you, obtain a registered personal account (and/or related username and password) on the Service and interact with the Service in connection therewith;
- Link to the Service from a website or other online service, so long as: (a) the links only incorporate text, and do not use any 4WRD names, logos, or images, (b) the links and the content on your website do not suggest any affiliation with 4WRD or cause any other confusion, and (c) the links and the content on your website do not portray 4WRD or its services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to 4WRD. 4WRD reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party;
- Stream the Content using any of the widgets and/or other digital streaming internet video players, if any, provided on the Service; and
- Use any other functionality expressly provided by 4WRD on or through the Service for use by users, subject to these Terms of Service (including, without limitation, functionality to create and/or post User-Generated Content (as defined below)) and any applicable Additional Terms.
3. Rights of Others. In using the Service, you must respect the Intellectual Property and rights of others and 4WRD. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability. If you believe that your work has been infringed via the Service, see Section 5
4. Reservation of all Rights Not Granted as to Content and Service. These TOS and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Service and content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY 4WRD AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Service for any purpose is prohibited.
6. Content Disclaimer. All Content provided to you by 4WRD, our licensors, other users of the Service or certain other third parties is for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis or treatment; or other professional or expert advice or assessment. Your use of the Content is solely at your own risk and nothing stated or posted on the Service constitutes an endorsement, representation, guarantee or warranty of the statements or information contained in the Content. 4WRD is not liable for your decisions or actions made on reliance on any of the Content or statements or information contained in the Content.
2) Content You Submit; User Interaction Rules.
- User-Generated Content.
- General. 4WRD may now, or in the future, offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service, or on or in response to our pages or posts on any third-party platforms or in connection with any of our promotions by any media or manner, or otherwise submit to us (e.g., on our Facebook or other social media pages, in response to our tweets, through a sweepstakes or contest, or by otherwise sending it to us) (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding 4WRD Licensed Elements included therein, “User-Generated Content” or “UGC”). You may submit UGC through your profile, forums, blogs, message boards, social networking environments, content creation and posting tools, subscription services, gameplay, social communities (including the Interactive Community (defined below), if applicable), contact us tools, email, and other communications functionality. Except to the extent of the rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest that you have in your UGC.
- In your communications with 4WRD, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed UGC and licensed to us as set forth below. In addition, 4WRD retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. 4WRD’s receipt of your Unsolicited Ideas and Materials is not an admission by 4WRD of their novelty, priority, or originality, and it does not impair 4WRD’s right to contest existing or future Intellectual Property rights relating to your Unsolicited Ideas and Materials.
- Representations and Warranties Related to Your UGC. Each time you submit any UGC, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside, or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any UGC you submit, and that, as to that UGC, (a) you are the sole author and owner of the Intellectual Property and other rights to the UGC, or you have a lawful right to submit the UGC and grant 4WRD the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any 4WRD obligation to obtain consent of any third-party and without creating any obligation or liability of 4WRD; (b) the UGC is accurate; (c) the UGC does not and, as to 4WRD’s permitted uses and exploitation set forth in these Terms, will not infringe any Intellectual Property or other right of any third-party; and (d) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
- Private Goals. From time-to-time, the Service may provide features that allow you to deem certain goal-oriented UGC as private (“Private Goals”). If and only to the extent that such UGC are deemed as Private Goals upon uploading to the Service, and provided that such UGC remains classified as a Private Goal for the entire time it remains on the Service, then: (A) 4WRD shall make commercially reasonable efforts to treat your Private Goals as confidential and proprietary and not post it on public-facing pages of the Service; and (B) except for any UGC retained in our routine data back-up files or archives, the license to your UGC set forth in Section 2(a)(iv) of these Terms of Service shall terminate upon your deletion of such UGC from your account, termination of these Terms of Service, or termination of your account on the Service, subject to a reasonable retention period following any of the foregoing.
- User-Generated Content.
2. User Interaction Rules. The Services provide a platform through which users who provide information or advice (“Coach” or “Coaches”) can offer their services (“Coaching Services”) to other users (“Client” or “Clients”), and communicate with other users by posting information and other material, including your own UGC, through publicly accessible parts of the Service including, discussion forums, blogs and message boards (collectively, the “Interactive Community”). You are using Interactive Community services if, for example, you view or participate in the Interactive Community, post a review, create a list, create a profile, submit any UGC, or otherwise participate in any interactive feature. Your use of and participation in the Interactive Community is subject to all of the Terms of Service and any Additional Terms, as well as the following rules:
- You may use the Interactive Community only for lawful purposes and in accordance with these Terms of Service. If you are using our Interactive Community services, and post, publish or communicate any UGC on or through the Interactive Community services, please choose carefully the information that you post and/or provide to other users. Any UGC (including chat messages, links, video, photo, audio or other media content) that you submit through the Interactive Community may be made publicly available through our Service, excluding your Private Goals, subject to Section 2(a)(vii) of these Terms of Service. Such UGC (excluding Private Goals, subject to Section 2(a)(vii) of these Terms of Service) may be accessible by anyone, including 4WRD. We encourage you to not include any personally identifiable information in any UGC you submit to 4WRD, the Coaches, or any other users or third parties, and to exercise caution when making decisions about what you disclose when using our Service.
- You may not post on or transmit through the Service any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, rule or regulation of the laws applicable to you or applicable in the country in which the material is posted. We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting or other UGC (including private messages) from you, or to deny, restrict, suspend or terminate access to all or any part of the Interactive Community services or the Services in general, at any time, for any or no reason, without prior notice or explanation and without liability.
- You may not post UGC or transmit communications through the Service that: (i) involves the transmission of “junk mail”, “chain letters” or unsolicited mass mailing, instant messaging, “spimming” or “spamming”; (ii) contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page); (iii) solicits passwords or personal identifying information for commercial or unlawful purposes from other users; (iv) involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising or pyramid schemes; (v) includes a photograph or video of another person that you have posted without that person’s consent; (vi) circumvents or modifies, or attempts to circumvent or modify, or encourages or assists any other person in circumventing or modifying any security technology or software that is part of the Service; (vii) involves the use of viruses, bots, worms or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise may permit the unauthorized use of or access to a computer or a computer network; (viii) covers or obscures the banner advertisements on your personal profile page; (ix) involves any automated use of the Service, such as using scripts to add friends or send comments or messages; (x) interferes with, disrupts or creates an undue burden on the Service or the networks or services connected to the Interactive Community services; (xi) impersonates or attempts to impersonate another Interactive Community user, person or entity; (xii) uses the account, username or password of another Interactive Community user at any time or discloses your password to any third party or permits any third party to access your account; (xiii) sells or otherwise transfers your profile; or (xiv) uses any information obtained from the Service or Interactive Community in order to harass, abuse or harm another person or entity, or attempts to do the same.
- We reserve the right, in our sole discretion, to remove your profile and/or deny, restrict, suspend or terminate your access to all or any part of the Interactive Community services for any reason.
- If you become aware of misuse of the Interactive Community services, including any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically or otherwise objectionable material or communication of any kind, material or communication that encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable law, please contact us at email@example.com. Notwithstanding the foregoing and to the maximum extent permitted by applicable law, we assume no responsibility for ongoing monitoring of the Interactive Community, including without limitation any communications between Coaches and Clients, or for removal or editing of any UGC, even after receiving notice. We assume no liability for any action or inaction with respect to conduct, communication or UGC within the Interactive Community, including without limitation with respect to conduct, communication, or UGC between and among Coaches and Clients. You are solely responsible for all activities that occur within the Interactive Community, including without limitation any interactions with any user, or actions or inactions that you take as a result of such interactions.
- Interactive Community users may upload to or otherwise submit to us for distribution on the Interactive Community and the Service: (A) UGC that is not subject to any copyright or other proprietary rights restrictions; or (B) UGC that the owner or licensor of any relevant rights has given express authorization for us to distribute over the Internet. You may not upload, embed, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Any copyrighted or other proprietary UGC distributed with the consent of a copyright owner should contain a phrase such as “Copyright, owned by [name of owner]; used by permission”. We are entitled to presume that all UGC conforms to the foregoing requirements. The unauthorized submission of copyrighted or other proprietary UGC is illegal and could subject the user to personal liability for damages in a civil suit as well as criminal prosecution. Interactive Community users assume all liability for any damage resulting from any infringement of copyright or proprietary rights, or for any other harm arising from an unauthorized submission or submission of UGC. We assume no liability for any damage resulting from any infringement of copyright or proprietary rights, or from any other harm arising from any UGC.
3)Accounts; Subscription and Purchases; Service and Content Use Restrictions.
- Creating an Account.
- If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Usernames and passwords must be personal and unique, not violate the rights of any person or entity, and not be offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights.
- Accounts may only be set up by you (and if not you, by an authorized representative of the individual that is the subject of the account and who is of the age of majority). We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.
- Creating an Account.
2. Service Use Restrictions. Subject to any Additional Terms, you agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to 4WRD; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service by any means whatsoever or modify any Service source or object code or any Software, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, 4WRD, or other users of the Service; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the UGC; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these TOS or any applicable Additional Terms.
3. Content Use Restrictions. You also agree that, in using the Service, you will: (i) not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) keep intact all trademark, copyright, and other Intellectual Property and other notices contained in such content; (iv) not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) not make any modifications to such content (other than to the extent of your specifically permitted use of the 4WRD Licensed Elements, if applicable); (vi) not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these TOS or any applicable Additional Terms or with the prior written consent of an officer of 4WRD or, in the case of content from a licensor, the owner of the content; and (vii) not insert any code or product to manipulate such content in any way that adversely affects any user experience or the Service.
4. Availability of Service and Content. 4WRD, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Service and/or Content (and any elements and features of them), in whole or in part, for any reason, in 4WRD’s sole discretion, and without advance notice or liability.
5. Internet Connectivity Charges. Internet connectivity is required to access the Service. Any access fees or charges applicable to your internet connectivity are solely your responsibility. Certain internet service providers, including wireless carriers, may charge fees for data connections based on the total amount of data you access. We are in no way responsible for the fees charged by or policies of internet service providers or others with whom you contract for such internet connectivity.
6. Subscription Payments and Refunds. Please refer to our Subscriptions and Business Terms for more information on Additional Terms related to subscription payments and refunds.
7. Changes in Fees. 4WRD reserves the right to modify or change fees for its Services at any time or impose additional fees or charges. Such changes will be effective as of the first billing cycle that occurs more than thirty (30) days after notice of any changes.
4) Email Messages.
You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions, and if your opt-out is limited to certain types of emails, the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Service, such as administrative and service announcements, and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
5) Notice and Take Down Procedure for Claims of Infringement.
We are committed to complying with U.S. Copyright and related laws. Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). It is our policy to remove and discontinue service to repeat offenders. If you believe your copyrighted work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in accordance with the requirements of the DMCA:
- The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
- A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
- Identification of the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the website where it is posted or the name of the book in which it has been published).
- Identification of the URL or other specific location on the Service where the material you claim is infringing is located (note: you must include enough information to allow us to locate the material).
- Your name, address, telephone number, and email address so that we may contact you.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on the Service is Kim Brooks and can be reached by email at firstname.lastname@example.org and by mail at 8300 Greensborrow Drive L1 – 227, Mclean VA 22102.
If you believe an individual is a repeat infringer, please follow the instructions above to contact our DMCA agent identified and provide information sufficient for us to verify the individual is a repeat infringer.
It is often difficult to determine if your copyright has been infringed. 4WRD may elect to not respond to DMCA notices that do not substantially comply with all of the foregoing requirements, and 4WRD may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
If access on the Services to a work that you submitted to 4WRD is disabled or the work is removed as a result of a DMCA copyright infringement notice, and you believe in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then you may send a “Counter-Notification” to the email address listed above. Your DMCA Counter-Notification should contain the following information:
- A legend or subject line that says: “DMCA Counter-Notification”;
- A description 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 (please include the full URL of the page(s) on the Services from which the material was removed or access to it disabled);
- A statement under penalty of perjury that you have 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;
- Your full name, address, telephone number, email address, and the username of your account with us (if any);
- A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the District of Columbia), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
- Your electronic or physical signature.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA copyright infringement notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services.
Upon our receipt of a Counter-Notification that satisfies the requirements of DMCA, we will provide a copy of the Counter-Notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures regarding counter notification. All Counter-Notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act. In all events, you expressly agree that neither 4WRD nor any of its affiliates or their employees, officers, directors, or agents will be a party to any disputes or lawsuits regarding alleged copyright infringement.
Please note you may be held liable for money damages if you materially misrepresent an activity is infringing your copyrights.
6) Termination or Suspension.
- Termination by Us. We may, upon notice to you, issue a warning, temporarily suspend, indefinitely suspend, or terminate your account or your access to all or any part of the Service for any reason in our sole discretion. In certain cases, in our sole discretion, we may provide you with a written notice (a “Restriction Notice”) to inform you that (i) your right to use or access any part of the Service has been terminated, including the right to use, access or create any account thereon; (ii) we refuse to provide any services to you; and (iii) any subsequent orders placed by you will be subject to cancellation. Other conditions may apply and shall be set forth in the Restriction Notice.
- By You. You may terminate these TOS by ceasing all use of the Service and deleting all 4WRD Licensed Elements from your Device.
- Effect of Termination or Suspension. Following termination (by us or by you) or suspension, you will not be permitted to use the Service. Any suspension or termination will not affect your obligations to 4WRD under these TOS or any applicable Additional Terms, including any obligation to pay unpaid amounts owed to 4WRD for Coaching Services. Upon suspension or termination of your access to the Service, or upon notice from 4WRD, all rights granted to you under these TOS or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these TOS and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to 4WRD in these TOS, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
7) Disclaimers; Exclusions and Limitations of Liability.
- DISCLAIMER OF WARRANTIES AND CONDITIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4WRD AND ITS DIRECT AND INDIRECT PARENTS, SUBSIDIARIES, AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, “4WRD PARTIES”) PROVIDE THE SERVICE, CONTENT, 4WRD LICENSED ELEMENTS, OR OTHER 4WRD SERVICES ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE WEBSITE IS AT YOUR SOLE RISK. 4WRD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, IDENTITY, INTENTIONS, LEGITIMACY, OR VERACITY OF COACHES OR USERS. YOU UNDERSTAND THAT 4WRD DOES NOT CONDUCT IDENTITY VERIFICATION CHECKS ON COACHES OR USERS OR CRIMINAL BACKGROUND CHECKS, OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS COACHES OR USERS. 4WRD RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK OR OTHER SCREENING AT ANY TIME USING AVAILABLE PUBLIC RECORDS AND YOU AGREE THAT ANY INFORMATION YOU PROVIDE MAY BE USED FOR THAT PURPOSE. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE 4WRD PARTIES (AS APPLICABLE) DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE SERVICE, CONTENT, 4WRD LICENSED ELEMENTS, UGC OR OTHER 4WRD SERVICES WILL: (I) BE UNINTERRUPTED OR SECURE; (II) BE FREE OF DEFECTS, INACCURACIES OR ERRORS; OR (III) OTHERWISE MEET YOUR REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4WRD PARTIES HEREBY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF HIDDEN OR LATENT DEFECTS, SECURITY, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT AND NON-INFRINGEMENT, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
- NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) 4WRD PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY 4WRD PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (II) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST 4WRD PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
- EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4WRD PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST OR CORRUPTED DATA, OR DAMAGE TO REPUTATION OR GOODWILL OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR LOSSES ARISING FROM, RELATING TO OR CONNECTED WITH YOUR USE OF (OR INABILITY TO USE) THE SERVICE, CONTENT, 4WRD LICENSED ELEMENTS, UGC OR OTHER 4WRD SERVICES REGARDLESS OF THE CAUSE OF ACTION ON WHICH THE CLAIM IS BASED (INCLUDING NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY OR MISREPRESENTATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- LIMITATION OF LIABILITY.TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY 4WRD PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to the Service (including the Content and the UGC), including without limitation:
- The actions or omissions of other users of the Service;
- your use of or inability to use the Service, or the performance of the Service;
- any action taken in connection with an investigation by 4WRD Parties or law enforcement authorities regarding your access to or use of the Service;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Service’s technical operation or security or any compromise or loss of your UGC or other data or information; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if 4WRD Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL 4WRD PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID 4WRD IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
The liability limitations in this Section are not intended to limit any express warranties by 4WRD that are included in applicable Additional Terms.
5. APPLICABLE JURISDICTIONAL LIMITS. CERTAIN JURISDICTIONS, SUCH AS NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OF OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
6. ESSENTIAL PURPOSE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8) Arbitration and Dispute Terms.
- Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Service, the Content, your UGC, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Virginia. Each party submits to personal jurisdiction and venue in Virginia for any and all purposes.
- Pre-Arbitration Notification. 4WRD and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that 4WRD need not do so in circumstances where its claims of Intellectual Property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or 4WRD – shall send a letter to the other side briefly summarizing the claim and the request for relief. If 4WRD is making a claim, the letter shall be sent, via email, to the email address listed in your 4WRD account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 8(b). If you are making a claim, the letter shall be sent to 4WRD at email@example.com, ATTN: Legal Notice. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 9. Either you or 4WRD, however, may seek provisional remedies (such as preliminary injunctive relief) subject to Section 9(d) before the expiration of this sixty (60)-day period.
- Arbitration of Claims. Unless you give us notice of opt-out within five (5) business days of your first use of the Service, addressed to: firstname.lastname@example.org, all actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Virginia, before a single arbitrator. If the matter in dispute is between 4WRD and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Virginia or, if sought by 4WRD, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision as per JAMS Arbitration Rules and Procedures. To the extent there are any challenges to the arbitrability of a claim, the arbitrator shall determine any and all such challenges.
- Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY 4WRD PARTY (DEFINED BELOW) (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY 4WRD PARTY.
- Governing Law. These Terms of Service and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against 4WRD or by 4WRD against you pursuant to this Section 9, or otherwise related to the Service, Content, 4WRD Licensed Elements, UGC or other 4WRD services, will be governed by, construed, and resolved in accordance with, the laws of the Commonwealth of Virginia, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 9 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and 4WRD agree that we intend that this Section 9 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 9 can only be amended by mutual agreement. Either party may seek enforcement of this Section 9 in any court of competent jurisdiction.
- Class Action Waiver. As permitted by applicable law, both you and 4WRD waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 9 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
- Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
- Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 9(f).
- Survival. The provisions of this Section 9 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 9 shall remain in full force and effect notwithstanding any termination of your use of the Service or these Terms.
9) General Provisions.
- 4WRD’s Consent or Approval. As to any provision in these TOS or any applicable Additional Terms that grants 4WRD a right of consent or approval, or permits 4WRD to exercise a right in its “sole discretion,” 4WRD may exercise that right in its sole and absolute discretion. No 4WRD consent or approval may be deemed to have been granted by 4WRD without being in writing and signed by an officer of
- Operation of Service; Availability of Services; International Issues. 4WRD controls and operates the Service from the U.S.A., and makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable laws regarding your online conduct and acceptable content, if and to the extent laws apply.
- Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
- Interpretation. Headings used in these Service Terms of Service are for reference only and shall not affect the meaning of any terms. “Including” means “including, without limitation.” The singular includes the plural and vice versa. These Terms of Service are binding upon each party and its successors and permitted assigns.
- Entire Agreement. Except for any Additional Terms that apply to your use of the Service as we may notify or make available to you, this is the entire understanding between you and us regarding the use of the Service, and supersedes all prior and contemporaneous agreements and understandings between you and us regarding this subject matter.
- Severability. The provisions of these Service Terms of Service are intended to be severable. If for any reason any provision of these Service Terms of Service is held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in that or any other jurisdiction.
- Our Affiliates, Suppliers and Licensors. Our affiliates, suppliers, licensors and other 4WRD Parties are intended third-party beneficiaries of these TOS.
- No Waiver. Our failure or delay to exercise or enforce any right, remedy or provision of these TOS or by law will not operate as a waiver of such or any other right, remedy or provision.
- Notices. Where we need to send you notices under these Terms of Service or in connection with your use of the Service, you hereby consent to receive electronic notices from us, whether addressed to the email address associated with your account or another email address that you provide to us. To the maximum extent permitted by applicable law, you acknowledge and agree that any communication via email or by postings on the Service satisfies any legal requirement that such communications be made in writing. All legal notices to us must be sent to: 4WRD at email@example.com, ATTN: Legal Notice.
- Force Majeure. We will not be liable to you for failing to perform our obligations under or arising out of these TOS or any applicable laws or regulations because of any event beyond our reasonable control, including a labor disturbance, an internet outage or interruption of service, a communications outage, failure by a service provider or any other third party to perform, acts of war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, fire, flood, public health events, government orders, acts of god, strike, lock-out or other industrial disputes (whether or not involving our employees or those of our affiliates, suppliers or licensors) or legislative or administrative interference (including those giving rise to currency changes or otherwise affecting our ability to operate or provide the nook service, whether in whole or in part).
- Changes to Service and Amendments to these Terms of Service. To the maximum extent permitted by applicable law, we may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently, in whole or in part, at any time with or without notice to you, and we will not be liable for doing so. We reserve the right from time to time to modify these TOS in our sole discretion. You should periodically review these TOS so that you are aware of the terms and conditions that apply to your use of the Service. Your use of the Service after any modification constitutes your acceptance of the most recent version of these TOS as modified.
- Assignment. These TOS and all of your rights and obligations under it are not assignable or transferable by you without our prior written consent. We may freely assign, transfer, or delegate these TOS or any of our rights and obligations under it.
- Contact Information. For help with the Service or if you have any questions regarding the Service or these TOS, please contact customer service at firstname.lastname@example.org. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.