Last Updated Date: August 2nd, 2021
Effective as of: May 1st, 2021
Please take a minute to read what is expected during the Coaching Program to be delivered by RSM Inc., and the coaches contracted by RSM Inc. (RSM). These terms of service (“Terms”) are between you and RSM, Inc. (“RSM,” “we,” “our,” or “us”), and establish the terms that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING email@example.com WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.
1. Use of the Service.
A. Service. The “Service” includes: (1) RSM’s website (located at https://boldermoney.com) (the “Site”) as may be updated, relocated, or otherwise modified from time to time; (2) the financial coaching sessions which may be conducted via video conference, text-messaging or phone (“Coaching Sessions”); and (3) all content on the Site, Budgeting Tool, related websites and networks, and all intellectual property rights arising out of or related to the foregoing. Any person who accesses or uses the Service, whether on their own behalf or on behalf of any third party, is a “User.” Any User who purchases Coaching Sessions and/or creates an account is also a “Member.”
B. Right to Access. Subject to your compliance with these Terms, RSM hereby grants you access to the Site, solely for your personal use.
2. Accounts; Registration; Restrictions.
A. Accounts. To access most features of the Service, Users must register for an account. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.
B. Accuracy of Information. You acknowledge that if you provide any information to us that is not current, complete, or accurate, RSM may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.
C. Eligibility. You represent and warrant that: (1) you are at least 18 years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. The Service is intended for Users located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
D. Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify RSM immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at firstname.lastname@example.org. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You may not share your login credentials with any third party. RSM will not be liable for any loss that you incur as a result of someone else using your login credentials or account.
E. Your Responsibilities. You may use the Service solely for lawful purposes, and you may not (and you may not allow or assist any third party to):
(1) use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;
(2) rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;
(3) circumvent or disable any security features of the Service, or probe, scan, or test the vulnerability of the System;
(4) gain unauthorized access to the Service, to other Members’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
(5) use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;
(6) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;
(7) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);
(8) use the Service to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
(9) restrict, discourage, or inhibit any other User from using the Service;
(10) disclose personal information about a third party or another User on the Service or obtained from the Service without the consent of such third party or User, or solicit, harvest, or collect information about other RSM Users without their consent;
(11) violate any applicable international, federal, state, provincial, or local laws or regulations;
(12) use the Service in violation of RSM’s or any third party's intellectual property or other rights;
(13) express or imply that any statements you make are endorsed by RSM, without our prior written consent in each instance; or
(14) use or access the Service to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce these Terms.
3. Payment and Fees.
A. Fees. Certain features within the Service, including the Coaching Sessions, may require you to pay fees, including one-time fees or fees on a subscription basis, and may provide you the option to activate recurring automatic payments for recurring fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged. If you activate or update recurring payments through the Service, you authorize RSM and its third-party service providers to periodically charge, until cancellation, all accrued fees.
B. Membership Plans. Unless otherwise specified, all membership plans are month-to-month. You will be charged monthly in advance for your membership plan. If you cancel or change your membership plan, the cancellation or change may not take effect for 30 days. You may cancel your membership plan by contacting the RSM coach from whom you receive Coaching Sessions (your “Coach”) directly via email or phone.
C. Promotional Offers. RSM, at its sole discretion, may make promotional offers with different features and different pricing to any of RSM’s Users. These promotional offers, unless made to you, will not apply to your offer or these Terms.
D. Authorization. You authorize RSM to charge all fees for the membership plan you select. If you pay any fees with a credit card, RSM may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
E. Payment Processing. Payment processing services for RSM may be provided by our third-party payment processors, which may include Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. You agree to provide RSM and RSM’s third-party payment processors with current, accurate, and complete information about you and your payment methods.
F. Early Cancellation Policy. If you sign up and pay for a three-month membership plan and cancel your plan before three months have lapsed, you must pay to RSM the difference between: (1) the aggregate amount you have paid RSM in such three-month period; and (2) the aggregate amount you would have paid if you were on RSM’s three-month plan.
4. Content Submitted to the Service.
A. Member Content. Certain features of the Service may permit Members to upload and publish content to the Service (“Member Content”). You own any Member Content you provide. Except as expressly described in these Terms, no ownership rights in the Member Content are transferred to RSM by these Terms.
B. License to RSM. By sending us Member Content or by posting or publishing it to the Service, you grant RSM and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publish, publicly display, and use such Member Content in any media now known or hereafter developed, to provide the Service to you and other Members and to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you.
C. Responsibility for Member Content. You are solely responsible for your Member Content and the consequences of posting it on the Service. None of the Member Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Member Content. RSM may (but is not obligated to) remove or alter any Member Content at any time for any reason. We neither endorse nor are responsible for any Member Content. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. The opinions expressed on the Service by Members reflect solely the opinions of the Members and do not reflect the opinions of RSM. If you believe Member Content violates these Terms or any policies we provide, please contact RSM immediately at email@example.com so that we can consider its editing or removal. You understand that when using the Service you will be exposed to Member Content from a variety of sources and acknowledge that Member Content may be inaccurate, offensive, indecent, or objectionable. You hereby waive any legal or equitable right or remedy you may have against RSM with respect to Member Content.
5. Optional Third-Party Services. RSM and third parties may make available integrations between the Service and third-party products or services, including plugins and related (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider’s continued operation, RSM does not warrant or provide support for Third-Party Services. RSM is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. RSM does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation.
A. RSM IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “RSM IP”), is owned by RSM and its licensors. No ownership rights in the RSM IP are transferred to you by these Terms. You do not have any rights in or to the RSM IP except for the limited express rights granted in these Terms.
B. Trademarks. You acknowledge that RSM has acquired, and is the owner of, common law or registered trademark rights in the name and word marks “Bolder Money Moves”, and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or RSM’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will insure exclusively to RSM’s benefit.
C. Feedback. If you give RSM feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to RSM all right, title, and interest in and to the Feedback, and RSM is free to use the Feedback without payment, attribution, or restriction.
7. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by RSM infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
A. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
B. identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
C. identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow RSM to locate the material on the Service;
D. the name, address, telephone number, and email address (if available) of the complaining party;
E. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
F. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send RSM a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be penalties for false claims under the DMCA.
8. Confidentiality. In the course of providing the Service, RSM may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by RSM to you with respect to the business, operations, and marketing of RSM’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is RSM’s confidential information and you will not use or disclose such confidential information to any third party without RSM’s prior written consent.
9. Data. RSM may collect and analyze data relating to your use of the Service that is aggregated in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). RSM may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.
10. Consent to Electronic Communications.
A. Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service.
B. Coaching Session Communications. Coaching Sessions may take place over video conference, or sms messaging on your personal device, or over the phone.
C. Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us.
D. SMS Messaging. By creating an account, you agree that RSM may send you transactional and promotional text (SMS) messages in connection with your use of the Service. You may opt out of receiving text (SMS) messages through the Service at any time by responding “STOP” or emailing email@example.com. Opting out of receiving text (SMS) messages may impact and limit your use of the Service. Please be aware that your cellular carrier may charge fees in connection with your use of the Service. You are responsible for any mobile charges that you may incur in connection with using the Service, including data charges. If you are not sure what those charges may be, you should ask your carrier before using the Service. RSM is not responsible or liable for any fees, costs, or overage charges associated with any data charges or data plan.
11. Term and Termination.
A. Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue until terminated.
B. Termination. If you breach (or if RSM suspects you have breached) these Terms, RSM may, in its sole discretion, terminate these Terms and your Member account and/or limit, suspend, or terminate your access to the Service, with or without notice. You may terminate these Terms by contacting us at firstname.lastname@example.org.
C. Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. If RSM suspends or terminates your account due to unpaid fees, in addition to the amount due for your membership plan, RSM may charge you fees that are incidental to any chargeback or collection of any unpaid amount, including collection fees. The following Sections of these Terms will survive termination of these Terms: 1, 2, 4-10, 12.C, and 13-21. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.
D. Deactivation. RSM may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). RSM will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.
12. Representations and Warranties; Disclaimer.
A. Member Content. You represent and warrant that: (1) you are the creator and owner of any Member Content you provide or otherwise have sufficient rights and authority to grant the rights granted to RSM in these Terms; (2) RSM’s use of your Member Content in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any intellectual property right, proprietary right, or privacy right; (3) your Member Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Member Content does not contain any confidential information of any third party.
B. Disclaimers. RSM AND ITS STAFF ARE NOT CERTIFIED FINANCIAL PLANNERS. THE SERVICE AND ANY RECOMMENDATIONS, INFORMATION, OR ADVICE MADE AVAILABLE PURSUANT THROUGH THE SERVICE, (COLLECTIVELY, THE “SERVICE CONTENT”) IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NONE OF THE SERVICE CONTENT SHOULD BE CONSTRUED AS PROFESSIONAL FINANCIAL ADVICE. SERVICE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL FINANCIAL ADVICE.
RSM DOES NOT GUARANTEE THE RESULTS OF OUR SERVICES. YOUR USE OF OR RELIANCE ON THE SERVICE IS SOLELY AT YOUR OWN RISK, TO THE EXTENT ALLOWED UNDER APPLICABLE LAW. THE SERVICE CONTENT SHOULD NOT BE CONSTRUED AS A RECOMMENDATION OR OFFER TO SELL OR PURCHASE ANY PARTICULAR INVESTMENT. YOU ARE SOLELY RESPONSIBLE FOR USING YOUR OWN JUDGMENT TO ASSESS SERVICE CONTENT. RSM EXPRESSLY DISCLAIMS ANY GUARANTEE OF RESULTS OR OUTCOMES OF ANY OF THE RECOMMENDATIONS OR ADVICE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF THE SERVICE AND SERVICE CONTENT.
RSM MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, THIRD-PARTY SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. RSM DOES NOT WARRANT THAT THE SERVICE OR THIRD-PARTY SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR RSM OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING RSM OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 12.B will apply solely to the extent permitted under applicable law.
A. Defense. At RSM’s option and request, you will defend RSM, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “RSM Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If RSM requests you to defend a RSM Party from any Claim, RSM will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of a RSM Party without RSM’s prior written consent. RSM may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
B. Indemnification. You will indemnify the RSM Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against a RSM Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by a RSM Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.
14. Limitation of Liability.
A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER RSM NOR ANY RSM PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF RSM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
B. DAMAGES CAP. RSM’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO RSM DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.
C. BASIS OF THE BARGAIN. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
A. Generally. In the interest of resolving disputes between you and RSM in the most expedient and cost-effective manner, you and RSM agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND RSM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 15 WILL APPLY TO YOU AND RSM UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 15.J (OPT OUT).
Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
B. Exceptions. Despite the provisions of Section 15.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and RSM will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting RSM. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). RSM’s email address for Notice is email@example.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to RSM, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or RSM may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or RSM must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, RSM will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by RSM in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
E. Fees; Location; Language. If you commence arbitration in accordance with these Terms, RSM will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, NY but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse RSM for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language.
F. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.
G. No Class Actions. YOU AND RSM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 15 (ARBITRATION)). Unless both you and RSM agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
H. Modifications to this Arbitration Provision. If RSM makes any future change to this arbitration provision, other than a change to RSM’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to RSM’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and RSM. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
I. Enforceability. If Section 15.G (No Class Actions) is found to be unenforceable or if the entirety of this Section 15 (Arbitration) is found to be unenforceable, then the entirety of this Section 15 will be null and void and the exclusive jurisdiction and venue described in Section 19.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.
J. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 15 (Arbitration), you may opt out by notifying RSM in writing of your decision by sending, within 30 days after the effective date of these Terms, an email to firstname.lastname@example.org, stating clearly your full name, address, and intent to opt out of this Section 15. Should you choose not to opt out within the 30-day period, you and RSM will be bound by the terms of this Section 15. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 15, and you understand that you will not be subject to retaliation if you exercise your right to opt out.
17. Protected Activity Not Prohibited. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any international, federal, state, provincial, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, RSM. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute RSM confidential information to any parties other than the applicable government agencies.
18. Compliance with Applicable Law. Each party will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under these Terms.
A. Subcontractors. RSM may use subcontractors or other third parties to perform its obligations under these Terms, but RSM will remain responsible for all such obligations.
B. Governing Law. These Terms are governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 15 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York, NY. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
C. Injunctive Relief. If you breach Sections 2 (Accounts; Registration; Restrictions), 6 (Ownership), or 9 (Confidentiality), RSM may suffer irreparable harm, and monetary damages may be inadequate to compensate RSM. Accordingly, RSM may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.
E. Assignment. You may not assign these Terms or delegate your performance without RSM’s prior written consent, and any attempt to do so is void. RSM may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.
F. Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.
G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
H. Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.
I. Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
J. Relationship. Your access to and use of the Service does not create any direct business relationship between you and RSM. You acknowledge and agree that these Terms are not an employment agreement, nor does it create an employment or contractor relationship, between you and RSM; and no joint venture, partnership, or agency relationship exists between you and RSM. As a User, YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF RSM. AS A MEMBER YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF RSM, INCLUDING BY INAPPROPRIATELY USING ANY RSM IP.
K. No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms.
L. Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 19.L. All notices to TFG will be sent to:
128 Wythe Avenue, 2H, Brookly, NY 11249
M. Force Majeure. RSM will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond RSM’s reasonable control (a “Force Majeure Event”), so long as RSM uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes RSM to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.
N. Interpretation. If RSM provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
20. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
21. Contact Us. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at email@example.com.