PRACTICE XYZ, INC.
TERMS OF SERVICE
LAST REVISED: APRIL 5, 2018
BEFORE USING THE SERVICE, PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THIS WEBSITE, OR BY CLICKING ON “ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, INCLUDING THE PROVISIONS OF SECTIONS 23 AND 24 UNDER WHICH YOU AGREE TO ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND AGREE NOT TO BRING CLASS ACTIONS CLAIMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, THEN PLEASE DO NOT CLICK “ACCEPT,” IN WHICH CASE YOU WILL NOT BE ABLE TO USE THE SERVICE.
Welcome to the Practice XYZ, Inc. (“Practice”) website (www.practice.xyz), a learning platform operated by Practice (the “Service”). These Terms of Service (the “Terms”) are for the customers, members, users and others who visit and use the Service (collectively or individually “Users”).
2. Electronic and Mobile Communications. Under these Terms, you consent to receive communications from Practice electronically. Practice will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that Practice provides to you electronically satisfy any legal requirement that such communications be in writing.
If you request to be contacted or receive updates, communications or other information by mobile phone or text message, you consent to our communicating with you via your mobile device. We do not charge for these services. However, your carrier’s normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost.
4. Modification. To the full extent permitted by law, Practice may make modifications, deletions or additions to these Terms (“Changes”) at any time. Notice of such Changes may be provided by sending an email to the address associated with your account, by posting a notice on the Service or by such other form of notice as determined by Practice. Changes will be effective upon the earliest of: (i) when you continue accessing or using the Service after Practice provides notice of the Changes; (ii) when you opt-in or otherwise expressly agree to the Changes or a version of these Terms incorporating the Changes or (iii) thirty (30) days after Practice provides notice of the Changes, unless you notify Practice within such thirty (30) days that you do not agree to the changes and stop using the Service.
5. Ownership; Proprietary Rights; Limited License. The Service is owned and operated by Practice. The content, visual interfaces, information, text, graphics, pictures, logo, design, compilation, computer code, software, files and all other elements of the Service (“Site Materials”) are the proprietary property of Practice or its licensors or Users and are protected by copyright, trade dress, patent and trademark laws, international conventions and other relevant intellectual property and proprietary rights and applicable laws. All trademarks, service marks and trade names are proprietary to Practice or its affiliates or third-party licensors.
You are granted a limited, non-sublicensable license to access and use the Service and the Site Materials for your informational, non-commercial and personal use only. Such license is subject to these Terms and does not include: (a) any resale or commercial use of the Service or the Site Materials therein; (b) the distribution, public performance or public display of any Site Materials; (c) modifying or otherwise making any derivative uses of the Service and the Site Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Service, the Site Materials or any information contained therein, except as expressly permitted on the Service; or (f) any use of the Service or the Site Materials other than for its intended purpose. Any use of the Service or the Site Materials other than as specifically authorized herein, without the prior written permission of Practice, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time.
6. Third Party Content. Practice may provide third party content on the Service and may provide links to Web pages and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. Practice does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Practice is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Your use of such Third Party Content is at your own risk.
7. Third-Party Advertisements, Products and Services. Practice may run advertisements and promotions from third parties on the Service or may otherwise provide information about or links to third-party products, services, institutions or career and educational opportunities on the Service. Practice does not endorse or make any representations or warranties regarding any third party products, services, jobs, opportunities, educational institutions, promotions or vendors. Your business or other dealings or correspondence with, or participation in promotions or programs of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Practice is not responsible or liable in any manner for any third party products, services or career and educational opportunities or for any loss or damage of any sort incurred as the result of any products, services, dealings or promotions or as the result of the presence of such non-Practice advertisers or third party information on the Service.
8. Monitoring Users and Content. Practice does not control User Content posted by Users and does not have any obligation to monitor such User Content for any purpose. You acknowledge that you are solely responsible for all content and material that you submit on the Service. Practice may, in its sole discretion, choose to monitor User Content, but Practice nonetheless assumes no responsibility for such User Content, no obligation to modify or remove any inappropriate content and no responsibility for the conduct of the User submitting any such content.
9. User Content.
9.1 The Service may permit or require the submission and posting of text, photos, video, graphics and other content and materials submitted or posted by you and other Users (“User Content”) and the hosting, sharing and publishing of such User Content on the Service. You understand that whether or not such User Content is published on the Service, such User Content is non-confidential, unless Practice expressly provides otherwise.
9.2 You shall be solely responsible for the User Content you submit and the consequences of posting or publishing such User Content. In connection with User Content, you affirm, represent and warrant that: (i) you own, or have the necessary licenses, rights, consents and permissions to use and authorize Practice to use, all patent, trademark, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Practice and these Terms and (ii) you have the written consent, release or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by Practice and these Terms.
9.3 For clarity, you shall retain all of your ownership rights in your User Content. However, by submitting User Content to Practice, you hereby grant Practice a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, sell, reproduce, distribute, prepare derivative works of, display, perform and otherwise exploit your User Content on and in connection with the Service and Practice’s (and its successor’s) business, including without limitation for promoting and distributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant to each user of the Service a non-exclusive license to access your User Content through the Service and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted by the functionality of the Service and these Terms.
9.4 In connection with User Content and any other posting or transmission of messages or material facilitated by the Service, you further agree that you will not: (i) submit or transmit material that is infringing or otherwise violates any third party rights, including any copyrights, trademarks, trade secrets or other proprietary rights or any privacy or publicity rights; (ii) publish or transmit falsehoods or misrepresentations that could damage Practice or any third party; (iii) post or transmit material that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, abusive, inflammatory, racially or ethnically offensive, fraudulent, misleading or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; (iv) post or transmit advertisements or solicitations of business or (v) impersonate another person or post User Content that misrepresents your affiliation with a person or entity. If notified by Users or a content owner of User Content that allegedly does not conform to these Terms, Practice may investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Content, which it reserves the right to do at any time. Additionally, Practice may, at any time, remove any User Content that in the sole judgment of Practice violates these Terms. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content.
9.5 Practice reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any User Content either generally or specifically.
9.6 Enforcement of the user content or conduct rules set forth in these Terms is solely at Practice’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of Practice’s right to enforce such rules in other instances.
10. Prohibited Uses and Conduct.
10.1 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these Terms. Access to Site Materials and the Service from territories where their contents are illegal is strictly prohibited. Practice Users are responsible for complying with all local rules, laws and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email or privacy.
10.2 Any use by User of any of Site Materials other than for private, non-commercial use is strictly prohibited.
10.3 You may not use the Service in any manner that in Practice’s sole discretion could damage, disable, overburden or impair it or interfere with any other party’s use of the Service or which may expose Practice or its users to any harm or liability of any type. You may not intentionally interfere with or damage the operation of the Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, corrupt date or other harmful, disruptive or malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service or features that enforce limitations on the use of the Service. You may not attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You may not send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes or harvest or otherwise collect information about users, including email addresses, without their consent. You agree neither to modify the Service in any manner or form, nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to circumvent or attempt to circumvent any filtering, security measures or other features Practice may from time to time adopt to protect the Service, its users or third parties.
10.4 The Service may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper or other automated means to access the Service for any purpose without our express written permission or bypass Practice’s robot exclusion headers or other measures Practice may use to prevent or restrict access to the Service.
10.5 You may not utilize framing techniques to enclose any trademark, logo or other Site Materials without Practice’s express written consent. You may not use any meta tags or any other “hidden text” utilizing Practice’s name or trademarks without Practice’s express written consent.
10.6 You may not stalk, intimidate, threaten or otherwise harass or cause discomfort to other users.
10.7 You further agree that you are solely responsible for your conduct while using the Services and that Practice is not responsible or liable for any user conduct.
11. Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Practice has adopted a policy of terminating, in appropriate circumstances and at Practice’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Practice may also, at its sole discretion, limit access to the Service or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
12. Copyright Complaints. If you believe that anything on the Service infringes upon any copyright which you own or control you may file a notification of such infringement with Practice’s Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement:
Jason Sanders c/o Practice XYZ, Inc.
Full Address of Designated Agent to Which Notification should be Sent:
230 S. Broad, Philadelphia, PA 19102
Telephone Number of Designated Agent: (267) 422-2257
E-Mail Address of Designated Agent: firstname.lastname@example.org
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by Practice or the alleged infringer as the result of Practice’s relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
13. Account Information. You agree that the information you provide to Practice upon purchase or member registration and, at all other times, will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
14. Password. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Practice. You may be liable for the losses incurred by Practice or others due to any unauthorized use of your account.
15. User Service; Feedback. Please visit the Contact Us information page for further assistance.
16. Availability of Service. Practice may make changes to or discontinue the Service or any of the media, contests, web communities, products or services available within the Service at any time, and without notice. The media, products or services on the Service may be out of date, and Practice makes no commitment to update these materials on the Service.
17. Third-Party Disagreements. You alone are responsible for your involvement with universities, employers and any other third parties with whom you may interact or communicate in connection with the Service. Practice reserves the right, but has no obligation, to monitor disagreements between you and such parties.
18. Violations; Termination. You agree that Practice, in its sole discretion and for any or no reason, may terminate any member or customer account (or any part thereof) you may have at the Service, or your use of the Service, and remove and discard all or any part of your account or any User Content, at any time. Practice may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be affected without prior notice, and you agree that Practice shall not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Practice may have at law or in equity.
20. Disclaimers; No Warranties. THE SERVICE AND ANY MEDIA, SOFTWARE, SERVICES, CONTENT OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRACTICE AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. PRACTICE AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE SERVICE OR THE FEATURES CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE AND THE SITE MATERIALS WILL BE ACCURATE, COMPLETE, RELIABLE OR CURRENT, OR THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PRACTICE AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF IT’S CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. YOU (AND NOT PRACTICE OR ITS SUPPLIERS, LICENSORS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MEDIA, MATERIAL OR OTHER DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
21. Indemnification; Hold Harmless. You agree to indemnify and hold Practice, its affiliated companies and its suppliers, licensors and partners harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Service, your User Content, your conduct, your violation of these Terms, your violation of the rights of any other person or entity or any breach of the foregoing representations, warranties and covenants. Practice reserves the right, at Practice’s expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Practice, and you agree to cooperate with Practice’s defense of these claims.
22. Limitation of Liability and Damages. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (C) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL PRACTICE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS OR THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OF OR THE INABILITY TO USE THE SERVICE, THE SITE MATERIALS OR ANY INTERACTIONS WITH PRACTICE, ITS USERS, ANY EMPLOYERS OR EDUCATIONAL INSTITUTIONS OR OTHER THIRD PARTIES, EVEN IF PRACTICE OR A PRACTICE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, PRACTICE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL PRACTICE’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’ OR THIRD-PARTY LICENSORS’, PARTNERS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN PRACTICE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.
23. Arbitration. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH PRACTICE, AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
You and Practice agree to arbitrate any dispute arising from these Terms or relating to the Practice website or Service, except that you and Practice are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for claims relating to the infringement or violation of copyrights, trademarks, service marks, trade names, trade secrets, patents or other intellectual property rights. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Practice agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in San Francisco, California; (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association; and (v) that the state or federal courts in San Francisco, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
24. Class Action Waiver. YOU AGREE THAT WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND PRACTICE WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING, AND ANY CLAIMS MUST BE MADE IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
25. Claims. YOU AND PRACTICE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
26.1 Governing Law. These Terms shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to any principles of conflicts of law.
26.2 Jurisdiction. The parties hereby submit to the exclusive jurisdiction of the English courts.
26.3 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms shall not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
26.4 Severability. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
26.5 Assignment. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Practice without restriction.
26.6 Survival. Other than the license set forth in Section 5 above, these Terms will survive any termination or suspension of your account or your right and license to use the Service.
26.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms and shall not be deemed to limit or affect any of the provisions hereof.
26.8 Entire Agreement. Except to the extent that the parties enter into a separate written agreement regarding the Service, these Terms, together with any applicable Guidelines, constitute the entire agreement between you and Practice relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by Practice as set forth in Section 4 above.