PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR USE OF THE SERVICES AND YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS IN CONNECTION THEREWITH. BY ACCESSING OR USING THE SERVICES, YOU SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Last modified on November 24, 2020.
Welcome to InstantScripts.com, a website provided by Dan Lok Education, Inc. (the “Company”, “we”, “our” or “us”). These terms and conditions (this “Agreement”) explain the terms by which you may use our online and/or mobile services and software provided on or in connection with instantscripts.com (the “Website”), including the ability of users (as defined below) to create and edit sales copy of the Company (“User Copy”) for their own business or other businesses (collectively, the “Services”).
ARTICLE 1 THE SERVICES
This is a contract between you and the Company. You must read and agree to these terms before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a binding contract with the Company, and only in compliance with the Terms and all applicable local, state, national, and international laws, rules and regulations. The Services may be used only by persons who are at least the age of majority under applicable law and are legally capable of entering into a binding contract. Any use or access to the Services by anyone under the age of majority under applicable law is strictly prohibited and in violation of the Terms. The Services are not available to any Users previously removed from the Services by the Company.
1.2 Limited License
If you are an individual subscriber, and subject to the Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license (in the sole discretion of the Company) to use the Services as permitted by the features of the Services.
If you are an individual opening an Account (as defined below) on behalf of a company, organization, or other entity as an Enterprise Account Holder (as defined below), the Enterprise Holder is hereby granted a non-exclusive, limited, non-transferable, freely revocable license (in the sole discretion of the Company) to use the Services as permitted by the features of the Services.
The Company reserves all rights not expressly granted herein in the Services and the Content (as defined below). The Company may terminate this license at any time for any reason or no reason.
You may access and use the Services only in accordance with any instruction manuals, user guides, policies, guidelines and other documentation setting out rules in respect of the access and use of the Services as may be made available by the Company, from time to time.
You will never use another User’s Account without permission. When creating your Account, you must provide accurate and complete information and you must keep this information up to date. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your Account. You must notify the Company immediately of any breach of security or unauthorized use of your Account. The Company will not be liable for any losses caused by any unauthorized use of your Account.
1.4 Enterprise Account Holders Responsibility for Authorized Users
Enterprise Account Holders will ensure that the total number of authorized users (each, an “Authorized User”) does not exceed the maximum number of authorized users authorized and purchased from the Company. Enterprise Account Holders may assign different persons as Authorized Users from time to time, provided that the total number of Authorized Users at any time does not exceed the maximum number of Authorized Users purchased from the Company, and provided that Authorized Users may not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their user name or right to access or use the Services to any third party. You, the Enterprise Account Holder, and your Authorized Users are jointly and severally responsible for the access and use of the Services. You are also responsible for ensuring that all of your Authorized Users comply with the Terms. Any violation of the Terms by any of your Authorized Users will be deemed to be a violation thereof by you.
1.5 Services Rules
When using the Services, you agree not to: (a) upload or transmit pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content; (b) except where expressly permitted, use the Services to engage in spamming, “chain letters“, “pyramid schemes“, advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate the Terms or any applicable laws, regulations or generally-accepted advertising or marketing industry guidelines; (c) use the Services in any manner that infringes, violates or misappropriates any third party’s intellectual property or proprietary rights; (d) use the Services in any manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes; (e) use the Services in any manner that is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy; (f) use the Services in any manner that is harmful to minors in any way; (g) use the Services in any manner that is hateful or discriminatory based on race, color, gender, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by the Company; (h) use the Services in any manner that, in our sole discretion, could damage, disable, overburden, or impair it; (i) use the Services in any manner that constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests; (j) attempt to gain unauthorized access to the Services, or any part of them, other Accounts, computer systems or networks connected to the Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (k) modify the Services in any manner or form, or use modified versions of the Services, including but not limited to for the purpose of obtaining unauthorized access to the Services; (l) use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Services; (m) impersonate another person or access another User’s Account without that User’s permission or to violate any contractual or fiduciary relationships; (n) share the Services-issued passwords with any third party or encourage any other User to do so; (o) modify, adapt, translate or create derivative works based upon the Services; (p) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (q) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services to any third party; provide time sharing or similar services for any third party; or use the Services for any purpose other than your own internal business use; (r) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (s) access the Services if you are a direct competitor of the Company, except with the Company’s prior written consent, or for any other competitive purposes; (t) except as permitted by the features of the Services, collect or harvest any personally identifiable information, including Account names, from the Services; and (u) use the Services in any way that is in the opinion of the Company, acting reasonably, detrimental or embarrassing to the Company.
1.6 User Copy
1.7 Responsibilities for Calls and Messaging
To the extent applicable to your use of the Services, you will at all times comply with the United States CAN SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. §64.1200 et seq, Canada’s Anti-Spamming Legislation (CASL) and Personal Information Protection and Electronic Documents Act (PIPEDA), the European Union’s General Data Protection Regulation (GDPR) and all other applicable state, provincial or local laws, rules, regulations, and guidelines relating to calling or texting, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission. You agree that you are the initiator of any call, SMS/MMS message, or other communication transmitted through the Services and for all content relating to, inducing, or encouraging calls, SM/MMS messages or other communications to take place. The Company is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Services including the User Content (as defined below), nor is the Company responsible for obtaining any necessary consents or permissions from the message recipients.
1.8 Changes to the Services
We may, without prior notice, change or stop providing the Services, or features of the Services, to you or
to Users generally or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole discretion you violate any provision of this Agreement. Upon termination of Subscription Term (as defined below), you continue to be bound by the Terms.
ARTICLE 2 USER CONTENT
2.1 User Content
Some areas of the Services allow you and other Users to submit, provide, or otherwise make available content such as videos, images, music, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on the Services is referred to as “User Content”). We claim no ownership rights over User Content created by you. You retain all right, title and interest in and to your User Content.
2.2 Intellectual Property Rights
a. By submitting, uploading or otherwise making available any User Content on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to the Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, store and use your User Content in connection with the provisions of the Services, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with Services, including without limitation for promoting and redistributing part or all of Services (and derivative works thereof) in any media formats and through any media channels.
b. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, province, country, territory or other jurisdiction.
2.3 Representation and Warranties
In connection with your User Content, you represent, warrant and agree with the Company as follows:
a. You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Services and the Terms, and each such person has released you from any liability that may arise in relation to such use.
b. You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
c. You own or have a valid and enforceable license to use all User Content, and no User Content infringes, misappropriates or violates the rights (including, without limitation, Intellectual Property Rights) of any person or entity or any applicable law, rule or regulation of any government authority.
d. Your User Content and the Company’s use thereof as contemplated by the Terms does not violate any contract, law, rule or regulation of any government authority.
e. The Company may exercise the rights to your User Content granted under the Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any agreement, collective bargaining agreement or otherwise.
f. To the best of your knowledge, all User Content and other information that you provide to us is truthful and accurate.
2.4 Limitation of Liability
You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and the User Content. The Company has no obligation to monitor any User Content and will have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content. The Company is not responsible for the loss, corruption or other changes to User Content for any reason whatsoever. Without limiting the foregoing, any feature(s) of the Services that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and the Company does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services.
ARTICLE 3 CUSTOMER DATA
3.1 Customer Data
Some areas of the Services may allow the Company to collect information from your current or potential customers, website visitors or end-users (collectively, “Customer Data”).
3.2 Your Responsibilities for Customer Data
3.3 No Responsibility for Backups
The Company will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
3.4 Rights to Customer Data
You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.
ARTICLE 4 OUR PROPRIETARY RIGHTS
4.1 Company Content
Except for your User Content, the Services and all materials therein or transferred thereby, including, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of the Company and its licensors (including other Users who post User Content to the Services). Except as explicitly provided herein, nothing in the Terms will be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by the Terms are strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including about how to improve the Services or our products (each “an Idea”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place the Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, the Company does not waive any rights to use similar or related ideas previously known to the Company, or developed by its employees, or obtained from sources other than you.
ARTICLE 5 SUBSCRIPTION; FEES AND PAYMENT
We will charge you fees (“Fees”) for your use of the Services. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of the Services (“Ordering Document”). For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. The Company may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms will become effective in the billing cycle following notice of such change to you as provided in this Agreement; provided however that if we have offered a specific duration and Fees for your use of the Services, we agree that the Fees will remain in force for that duration.
5.2 Continuous Subscription Services; Automatic Billing and Policies
Unless otherwise provided in an Ordering Document any purchases for access and use of the Services are on an automatically renewing subscription basis. YOUR SERVICES SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH, A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR SERVICES SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 5.3 OF THIS AGREEMENT. When you purchase the Services, you expressly acknowledge and agree that: (i) the Company is authorized to charge you the Fees at the beginning of each Subscription Term identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of the Services, for as long as your subscription continues; and (ii) your subscription is continuous until you cancel it or the Services is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in applicable taxes, and changes in Fees in accordance with Sections 5.1 and 5.3 and you authorize us to charge your payment method for such changed amounts.
5.3 Cancellation; Refunds
You may cancel your Account or the Services subscription at any time. To cancel your Account or the Services subscription, you must notify us before the start of the next Subscription Term using the appropriate functionalities of the Services or by contacting us at support@InstantScripts.com. Unless explicitly stated, there will be no refunds or credits for partial months or for periods in which your subscription remains unused. For renewal purposes, if adequate notice is not received and your credit card is subsequently charged, you will not receive a refund. In the event that the Company suspends or terminates your Account or this Agreement, you agree that you will receive no refund or exchange for any of the Services, any unused time on a subscription, any license or Fee for any portion of the Subscription Term, any content or data associated with your account, or for anything else.
By accepting the Free Trial Offer (the “Offer”), you agreed the Company will not notify and/or send any reminder to you of your right to cancel your subscription and the Company will not refund your Service Subscription fee after the “Free Trial” period is elapsed. You further agreed you are waiving your rights to file any claims, including class action claim or claims referenced at clause 12.3 against the Company under any Consumer Protection Laws and Business and Professions Codes.
5.4 Payment Information; Taxes
We or our third party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for an Account or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Services must be accurate, complete, and current. You may change your payment method by changing the information in your Account. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method permitted to be used in connection with a purchase or transaction or other monetary transaction interaction with the Company at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days after informing you, we may (without liability to you) suspend or temporarily disable all or part of your access to the Services and we will be under no obligation to provide any or all of the Services while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
ARTICLE 6 PRIVACY
ARTICLE 7 DMCA NOTICE
7.1 DMCA Notice and Canadian Notice and Notice Regime
Since we respect artist and content owner rights, it is the Company’s policy to respond to alleged infringement notices that comply with the United States Digital Millennium Copyright Act of 1998 (“DMCA”), the Canadian Notice and Notice Regime under the Copyright Act (Canada) and other applicable state, provincial or local laws, rules, regulations, and guidelines relating to process of notifying a website owner and internet service provider of copyright infringement found online. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify the Company’s copyright agent as set forth in the DMCA, the Copyright Act (Canada) or other applicable laws. For your complaint to be valid under the DMCA, you must provide the following information in writing:
a. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
b. Identification of the copyrighted work that you claim has been infringed;
c. Identification of the material that is claimed to be infringing and where it is located on the Website;
d. Information reasonably sufficient to permit the Company to contact you, such as your address, telephone number, and, e-mail address;
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
f. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
7.2 DMCA Agent
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice Dan Lok Education, Inc.; Instant Scripts Address: 422 Richards St #170, Vancouver, BC V6B 2Z4 Canada Tel.: 833.832.6565 Email: legal@InstantScripts.com
Under US and Canada federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
7.4 No Legal Advise
Please note that this procedure is exclusively for notifying the Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with the Company’ rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice in any jurisdiction. It may be advisable to contact legal counsel regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, the Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. The Company may also at its sole discretion limit access to the Services and/or terminate the Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
ARTICLE 8 THIRD-PARTY LINKS AND INFORMATION
The Services may integrate with or contain links to third party materials, sites, information, products, or applications (collectively “Third Party Services”) that may make available to you their content and products, including, without limitation, domain registrars from which you may purchase a domain name, email providers, third party licensed content, and ecommerce services, that are not owned or controlled by the Company. The Company does not endorse or assume any responsibility for any such Third Party Services. If you access a Third Party Service from the Services or share your User Copy on or through any Third Party Service you do so at your own risk, and you understand that the Terms do not apply to your use of such Third Party Services. You expressly relieve the Company from any and all liability arising from your use of any Third Party Service including without limitation User Copy submitted by other Users. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We will not be liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that the Company will not be responsible or liable for any loss or damage of any sort relating to your dealings with such advertisers.
ARTICLE 9 INDEMNITY
You agree to defend, indemnify and hold harmless the Company and every member of the Company’s group of companies, and their respective directors, officers, employees, representatives, agents, subsidiaries, managers, affiliates and assigns (in this Article 9, each, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against any and all losses, claims, costs, expenses, damages, liabilities, obligations, actions or demands, including legal fees (collectively, the “Losses”) to which an Indemnified Party may become subject insofar as such Losses arise out of (a) your use of and access to the Services, including any data or content transmitted or received by you; (b) your violation of the Terms, including without limitation your breach of any of the representations and warranties in the Terms; (c) your violation of any third party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your Account including misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
ARTICLE 10 NO WARRANTY
10.1 No Warranty
THE COMPANY MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, DIRECTLY OR INDIRECTLY. ANY PURPORTEDLY APPLICABLE WARRANTIES, TERMS AND CONDITIONS ARE EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY LAW. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN RISK.
The Services is provided on an “as is” and “as available” basis. Access to and use of the Services is at your own risk. To the maximum extent permitted by applicable law, the Services are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from the Company or through the Services will create any warranty not expressly stated herein. Without limiting the foregoing, the Company, every member of the Company’s group of companies and their respective subsidiaries, affiliates and licensors do not warrant that the content is accurate, reliable or correct; that the Services will meet your requirements; that the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Services.
10.2 Third Party
Further, the Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and the Company will not be a party to or in any way monitor any transaction between you and third party providers of products or services.
10.3 Applicable Laws
Some federal, state, provincial and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law to you.
ARTICLE 11 LIMITATION OF LIABILITY
11.1 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT ACCEPT ANY LIABILITY FOR YOUR OR ANY OTHER PERSON’S USE OF THE SERVICES OR ANY MATTER RELATED, DIRECTLY OR INDIRECTLY, THERETO. IN NO CASE WILL THE COMPANY OR ANY MEMBER OF THE COMPANY’S GROUP OF COMPANIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY, DIRECT OR INDIRECT, INJURY, LOSS, CLAIM, OR ANY, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, including, without limitation, economic loss, loss of profits, loss or damage to electronic media or data, goodwill, other intangible losses, or any similar damages, arising from or relating to (i) the use of, or inability to use, the Services or any service or product procured using the Services, including, any bugs, viruses, Trojan horses, or the like that may be transmitted to or through our service by any third party; (ii) the results to be obtained from your use of the Services; (iii) your inability to access or use the Services; (iv) any conduct or content of any third party on or related to the Services; (v) any User Content, User Copy or content created by third parties obtained from or through the Services, including any errors, mistakes, or inaccuracies therein; (vi) any obligation of the company under the terms; (vii) the unauthorized access to, use of, or alteration of your user content, including any losses resulting from hacking, tampering or other unauthorized access or use of the Services or your account or the information contained there; (viii) the defamatory, offensive, or illegal conduct of any third party.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if the Company has been advised of the possibility of such damage.
11.2 Applicable Laws
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. In such jurisdictions, our liability will be limited to the maximum extent permitted by law.
ARTICLE 12 GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
12.1 Governing Law
You agree that: (i) the Company will be deemed solely based in British Columbia, Canada; and (ii) the Services will be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than British Columbia, Canada. The Terms will be governed by the laws of the Province of British Columbia, without respect to its conflict of laws principles. You acknowledge that this Agreement evidences a transaction involving interprovincial commerce. You agree to submit to the personal jurisdiction of the courts located in Vancouver, British Columbia for any actions for which we retain the right to seek injunctive or other equitable relief as contemplated in the Terms. You agree that Vancouver, British Columbia is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties hereto to arbitrate their disputes and limits the manner in which you can seek relief from the Company. For any dispute with the Company, you agree to first contact us at legal@InstantScripts.com and attempt to resolve the dispute with us informally. In the event that the Company has not been able to resolve a dispute it has with you after sixty (60) days and except for disputes concerning a violation for which you may seek injunctive or other equitable relief, any dispute, controversy or claim initiated by either party arising out of, resulting from or relating to the Terms, or the performance of obligations under the Terms, whether before or after termination of your Account or Subscription Term, will be finally resolved by binding arbitration. If a party decides to institute arbitration proceedings in accordance with the Terms, it will give written notice to that effect to the other party. Any such arbitration will be conducted under the Rules of Procedure of the British Columbia International Commercial Arbitration Centre by a single arbitrator appointed in accordance with such rules. Any such arbitration will be held in Vancouver, British Columbia and the language shall be in English. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
The arbitrator will have the authority to grant injunctions and/or specific performance and to allocate the costs of arbitration in such equitable manner as he or she may determine. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
12.3 Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used the Services for personal, commercial or other purposes, all Claims must be brought in your individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver also applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you are waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
12.4 Limitation on Claims
You and the Company agree that any cause of action arising out of or related to the Services and/or your use thereof must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
ARTICLE 13 GENERAL
13.1 Equitable Remedies
You agree that certain breaches of the Terms would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. You therefore also agree that in the event of said breach or any threat of breach, the Company will be entitled to specific performance and/or an immediate injunction and restraining order to prevent such breach or threatened breach by you and any and all persons acting for or with you without having to prove damages or paying a bond, in addition to any other remedies to which the Company may be entitled at law or in equity. The provisions of this Section 13.1 will not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including the recovery of damages from you. All such rights and remedies of the Company are cumulative and not alternative or exclusive of any other rights or remedies and the Company may have recourse to any one or more of its available rights and remedies as it shall see fit.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any attempted transfer or assignment in violation hereof will be null and void. This Agreement will ensure to the benefit of the parties hereto and their respective heirs, representatives, administrators, successors and permitted assigns.
13.3 Notification Procedures and Changes to the Agreement
The Company may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by the Company in our sole discretion. The Company reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. The Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
The Company may modify or update the Terms from time to time in its sole discretion. Any amendment or modification to the Terms, from time to time, will be effective upon the earlier of the date of posting of the amendment on the Website or upon the delivery of actual notice to you. When we amend or modify the Terms in a material manner, we will update the ‘last modified’ date at the top of this Agreement. Your continued use of the Services after any such change constitutes your acceptance of the new Terms. It is your responsibility to keep apprised of any amendments or modifications to the Terms. If you do not agree to any of the amendments or any future Terms, do not use or access (or continue to access) the Services.
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision will be deemed to be modified to the extent required to comply with the law, rule, or regulation in such jurisdiction, and this Agreement, as so modified, will continue in full force and effect.
13.5 No Waiver
No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and the Company’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
13.6 Independent Legal Advice
You acknowledge and agree that you have been afforded the opportunity to obtain independent legal advice and confirm by your continued access or use of the Services that you have either done so or waived your right to do so in connection with entering into this Agreement.
Please contact us at legal@InstantScripts.com with any questions regarding the Terms.
13.8 Entire Agreement