TERMS AND CONDITIONS OF USE
These Terms and Conditions of Use (“Terms of Use”) are entered into by Bounceback LLC, a limited liability company based in the State of Tennessee in the U.S.A. (“Bounceback,” “We,” “Us,” or “Our”) and you (“User,” “You,” or “Your”). The following Terms of Use, together with any documents they expressly incorporate by reference, govern Your access to and use of Bounceback’s website, available at https://www.mybounceback.com, including any and all content, functionality, and services offered on or through the website (collectively, the “Website”), and the web-based application made accessible on the Website, available at https://platform.mybounceback.com (the “Platform”). Hereinafter, Bounceback and User may be referred to in the singular as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Bounceback is in the business of, among other things, creating, developing, hosting, and providing an online, interactive tool to and for educators and other personnel within scholastic institutions and educational districts (“Bounceback’s Services”), for the purpose of promoting, advancing, and supporting wellness for, and the professional development of, the educators or other personnel (collectively, “Bounceback’s Mission”);
WHEREAS, Bounceback offers the Platform to its Users to provide, deliver, and facilitate Bounceback’s Services and to realize and actualize Bounceback’s Mission;
WHEREAS, Bounceback is the owner of certain patentable (and non-patentable) inventions, patents, trademarks, trade dress, copyrightable (and non-copyrightable) works of authorship, copyrights, trade secrets, technology, know-how, proprietary and confidential information, and/or other intellectual property, including the intellectual property underlying the Platform (collectively, the “Bounceback Intellectual Property”);
WHEREAS, conditioned upon the use of and access to the Website and the Platform, User accepts and agrees to be bound by Bounceback’s policy on privacy (“Privacy Policy”), which is incorporated herein by reference at https://www.mybounceback.com/privacy.
WHEREAS, subject to the terms and conditions of these Terms of Use, Bounceback desires to provide the Website and the Platform for User to access and use, and User desires to access and use such Platform, conditioned upon acceptance of these Terms of Use.
NOW, THEREFORE, in consideration of the mutual covenants and terms hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
TERMS AND CONDITIONS
I. Definitions
A. Device. “Device” means any unit of physical hardware or equipment that provides one or more computing functions within a computer system including, but not limited to, desktop computers, laptop (or otherwise portable) computers, mobile/cellular phones, tablets, and other computers capable of using or accessing the Website or the Platform.
B. User. “User” means any and all individuals or entities that access, use, or visit the Platform.
II. Conditions of Use
A. Eligible to be Bound. This Platform is offered and available to Users who meet the “Eligibility Requirements,” as set forth in Schedule 1. By using and accessing this Platform, User represents and warrants that User is of legal age and of legal capacity to form a binding contract with Bounceback, and meets all of the Eligibility Requirements. If User does not meet all of the aforementioned requirements, User may not access or use the Platform.
B. Geographic Restrictions. Bounceback, the owner of the Platform, is based in the State of Tennessee in the U.S.A. Bounceback provides this Platform for use only by individuals or entities located in those regions as provided for in Schedule 1. Bounceback makes no claims, assertions, representations, or warranties that the Platform is accessible or appropriate outside of the regions so authorized in Schedule 1. If User accesses or uses the Platform from outside the regions so authorized in Schedule 1, User does so on User’s own initiative and is solely responsible for compliance with local laws of the unauthorized regions.
C. Use of or Access to the Platform. User shall read the Terms of Use carefully before User commences use of, or access to, the Website or the Platform. By using or accessing the Website or the Platform, User accepts and agrees to be bound and abide by these Terms of Use and Privacy Policy. If User elects not to agree to these Terms of Use and Privacy Policy, User must not access, use, or visit the Website or the Platform.
D. Reservation of Right to Alter Terms of Use. Bounceback, from time to time, and in its sole and absolute discretion and without prior notice, may revise, update, or otherwise modify these Terms of Use (“Changes”). User’s continued use of or access to the Website or the Platform, following the posting of revised, updated, or otherwise modified Terms of Use, means, signals, and indicates that User accepts and agrees to abide by the Changes. User is expected to routinely access, check, and monitor these Terms of Use so that User is on notice and remains abreast of any Changes, as the Changes are binding on User.
E. Reservation of Right to Amend, Withdraw, or Suspend. Bounceback, from time to time, and in its sole and absolute discretion and without prior notice, may withdraw, suspend, or amend the Website or Platform, in part or in whole, and any service or material Bounceback provides or delivers on the Website or the Platform. Bounceback will not be liable if, for any reason, all or any part of the Website or the Platform is unavailable at any time or for any period. Bounceback, from time to time, and in its sole and absolute discretion and without prior notice, may restrict, limit, or suspend access to or use of some components or the entirety of the Website or the Platform.
F. Availability, Errors, and Inaccuracies. Bounceback is regularly, routinely, consistently, and constantly updating product- and/or service-offerings on the Platform. As a result, Bounceback may experience delays in updating information on the Platform and in Our advertisements, marketing, or promotions on other websites, other webpages, and other online multi-media platforms. In addition, the information found on the Platform may contain errors or inaccuracies and may not be complete or current. Therefore, Bounceback, in its sole and absolute discretion and without prior notice or liability, reserves the right to change or update information and to correct errors, inaccuracies, or omissions at any time.
III. Access to and Use of the Platform
A. Registration Information. To access or use the Platform, and its contents, resources, offerings, or services, User may be asked to provide certain Registration Information (as defined herein) or other information, so as to register for an account with the Platform and Bounceback (the “Account”). It is a condition of User’s access to or use of the Platform that all the information User provides on the Platform is correct, accurate, current, non-misleading, and complete. As part of the Account registration process, We require all Users to verify with which scholastic institutions and/or educational districts they are affiliated. User agrees that all information User provides to register with this Platform or otherwise is governed by Our Privacy Policy; consequently, User consents to all actions Bounceback takes with respect to User’s information consistent with and pursuant to Our Privacy Policy and applicable federal, state, and local laws and regulations.
B. Registration Personal to User. User acknowledges that User’s Account is personal, confidential, private, and exclusive to User, and User agrees not to provide any third-party individual or entity with the use, access, or means by which to use or access this Platform or portions of the Platform using User’s registration information, which includes, but is not limited to, name (first and last), email address, login credentials, scholastic institution or educational district with which the User is affiliated, and other identifying information (collectively, the “Registration Information”).
C. Memberships. To create an Account to use and access the Platform, and for ongoing use and access to the Platform, the User, or an entity acting on behalf of the User (e.g., scholastic institution or educational district), is required to pay Bounceback a fee for membership (a “Membership”). The Membership will entitle the User to full, uninterrupted use of and access to the Platform. At least some of the features available to a User having a Membership are specified and set forth in Schedule 3 (“Features for Users Having Membership”).
D. Renewal and Cancellation. The User’s Membership will renew at the then-applicable fee, unless Bounceback, in its sole and absolute discretion, elects to adjust the quantity of the value of the fee at renewal. User acknowledges and agrees that the User’s Membership will renew in accordance with the foregoing, unless either Bounceback or User, or an entity acting on behalf of the User (e.g., scholastic institution or educational district), elects to cancel the Membership. In the event that User, or the entity acting on behalf of the User (e.g., scholastic institution or educational district), fails to pay, for any reason, the fee for Membership access, User shall not be permitted to have full, interrupted use of and access to the Platform, as outlined in Schedule 3. Except when required by law, fees for the Membership are non-refundable.
E. Unauthorized Access; Security Awareness. User shall immediately notify Bounceback of any unauthorized access to, use of, or disclosure of User’s Registration Information and/or Account, or any other security incident or breach. User shall exit from the Platform at the end of each session. User should exercise special caution when using or accessing the Platform from a public or shared computer, publicly accessible network, or other nonsecure network-based platforms, for the purpose of preventing third parties from accessing, or disclosing User’s Registration Information and/or Account. In the event of actual, imminent, potential, or threatened access to, use of, or disclosure of User’s Registration Information, or in the event that User has otherwise violated the Terms of Use herein, Bounceback reserves the right, in its sole and absolute discretion and without liability, to disable, restrict, limit, or deactivate User’s access to or use of the Platform.
IV. Other Sites and Resources; Third-Party Software
A. Other Terms of Use. To the extent that You submit, present, or offer any personal information, including Your Registration Information, to any third party, or otherwise undertake the use of or access to any third-party site, resource, or application (“Third-Party Sites and Resources”), such third party’s use of such information may be governed by the third party’s terms of use.
B. Applications and Services. The Platform, or the Website, may include, directly or indirectly, Third-Party Sites and Resources. Because we do not control, directly or indirectly, Third-Party Sites and Resources, User acknowledges and agrees that Bounceback is not responsible or liable, directly or indirectly, for any Third-Party Sites and Resources, including the performance, accuracy, integrity, quality, legality, usefulness, or safety of, or intellectual property rights relating to, Third-Party Sites and Resources. Bounceback has no obligation or commitment to monitor Third-Party Sites and Resources. Bounceback, in its sole and absolute discretion and without prior notice, may remove, limit, suspend, or otherwise restrict access to any Third-Party Sites and Resources (in whole or part). The availability of Third-Party Sites and Resources through and/or on the Platform, or the Website, does not imply, directly or indirectly, Our endorsement or sponsorship of, or Our affiliation with any third party.
C. Links to Other Sites and Resources. If the Platform, or the Website, contains links to Third-Party Sites and Resources, these links are provided for User’s convenience only. This may include links contained in advertisements and other marketing endeavors, including banner advertisements and sponsored links. Bounceback has neither ownership nor control over the contents of those Third-Party Sites and Resources, and Bounceback is not responsible or liable, directly or indirectly, to User for any loss, damage, injury, harm, or cost arising from, related to, or in connection with User’s use of or reliance on the contents, goods, services, offers, advertisements, or promotions of the Third-Party Sites and Resources. If User decides to access any of the Third-Party Sites and Resources linked to the Platform, or the Website, User does so entirely at User’s own risk and peril. By accessing such Third-Party Sites and Resources, User is bound to those terms and conditions of use of the third parties owning or controlling the Third-Party Sites and Resources.
D. Third-Party Software. Software User downloads in connection with the Platform consists of a package of components that may include certain third-party software (“Third-Party Software”), provided under separate terms and conditions (the “Third-Party Terms”). Use of the Third-Party Software in conjunction with the Platform, in a manner consistent with these Terms of Use, is permitted.
V. Communications
A. Opt-Out. User agrees to subscribe to newsletters, marketing, advertisements, or promotional materials and other information We may send. However, User may opt out of receiving any, or all, of these communications from Bounceback by following the unsubscribe link or instructions provided in any email Bounceback transmits. Bounceback does not discriminate against Users who elect to opt-out of promotional materials and other communications. Please note that a User may continue to receive promotional and/or non-promotional communications for a period of time while Bounceback works to deactivate Your Account. In addition, please note that You may receive communications confirming the activation or disablement, restriction, limitation, or deactivation of Your access to or use of the Platform. User may expressly opt out of receiving any, or all, of the aforementioned communications from Bounceback by accessing a web-link to unsubscribe, or alternatively, notifying Bounceback in accordance with the Privacy Policy or these Terms of Use, as provided for under the section titled “Comments, Concerns, and Complaints.”
VI. Uses
A. Prohibited Uses. User may access and use the Website and the Platform only for lawful purposes and in accordance with these Terms of Use. User hereby agrees not to access or use the Website or the Platform:
i. in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the import or export of data or software to and from the United States of America or other countries);
ii. for the purpose of exploiting, harming, or attempting to exploit or harm minors (i.e., persons below the age of eighteen (18)) in any way by exposing them to inappropriate, obscene, pornographic, vulgar, or lewd content, asking for personally identifiable information, or otherwise;
iii. to impersonate or attempt to impersonate Bounceback, a Bounceback supervisor, officer, director, employee, employee agent, or professional representative, another User, or any other third-party person or entity;
iv. to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website or the Platform, or which, as determined in Bounceback’s sole and absolute discretion, may harm, injure, or damage Bounceback or the Users of the Platform, or expose Bounceback and the Users to any potential, threatened, imminent, or actual liability;
v. to transmit, or procure the sending of, any advertising or promotional material including any material constituting solicitation (e.g., “junk mail,” “chain letter,” “spam,” or any other similar solicitation); or
vi. to send, knowingly receive, upload, download, process, disclose, use, or re-use any material that does not comply with the Use Standards, as set forth in Schedule 2. Moreover, User shall not:
vii. disable, overburden, damage, or impair the Website or the Platform or interfere with any other User’s use of or access to the Website or the Platform, including the Users’ ability to engage in real-time activities through the Website or the Platform;
viii. introduce any robot, spider, or other automatic device, process, or means to access the Website or the Platform for any purpose, including monitoring or copying any of the material on the Website or the Platform;
ix. use any process to monitor or copy any of the material on the Website or the Platform or for any other purpose not expressly authorized in these Terms of Use, without Our prior express, written consent;
x. use, access, or employ any device, computer, processor, tool, method, software, or routine that interferes with the proper operability, functionality, viability, continuity, and maintenance of the Website or the Platform;
xi. introduce any viruses, Trojan horses, worms, bots, logic bombs, or other code that is malicious or technologically harmful;
xii. attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website or the Platform, the server on which the Website or the Platform is stored, or any server, computer, or database connected to the Website or the Platform;
xiii. attack the Website or the Platform via a denial-of-service (“DoS”) attack, a distributed denial-of-service (“DDoS”) attack, command and control (“C2”), bots, botnets, or any other means by which a malicious actor seeks to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting services of a host or server;
xiv. defame, harass, abuse, stalk, threaten, or otherwise violate the legal rights of others, including but not limited to a Bounceback director, officer, supervisor, employee, employee agent, or professional representative and other Users; or
xv. otherwise attempt to interfere with the proper working of the Website or the Platform.
VII. Scrutiny and Enforcement
A. Monitoring and Enforcement. Bounceback, in its sole and absolute discretion and without prior notice, has the right, but is under no obligation, to:
i. monitor, evaluate, analyze, assess, or alter the Website and/or the Platform;
ii. take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of or access to the Website or the Platform; or
iii. terminate, suspend, limit, restrict, or narrow User’s access to or use of all or part of the Website or the Platform for any or no reason, including without limitation, any violation of these Terms of Use.
B. Cooperation with Law Enforcement. Without limiting the foregoing, Bounceback reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity, or other related information, of any individual or entity, including the User, posting, linking, storing, sharing, submitting, publishing, or displaying any materials on or through the Website or the Platform.
VIII. Limited License; Intellectual Property Rights
A. Grant of License. The Platform, the Website, and the Bounceback Intellectual Property underlying, embodying, applicable to, or related to the foregoing, are licensed to Users for personal, non-commercial use of and access to the Website and the Platform, solely in accordance with these Terms of Use. Subject to Your complete and ongoing compliance with the terms and conditions of these Terms of Use, Bounceback hereby grants you a personal, limited, revocable, non-transferable, non-exclusive, non-commercial, and non-sublicensable license to:
i. access and use the Website and the Platform, and the Bounceback Intellectual Property therein, on compatible, authorized Devices that You own or control; and
ii. access and use the Website and the Platform, and the Bounceback Intellectual Property therein, solely for Your own use or for the entity (e.g., scholastic institution or educational district) on whose behalf You are authorized to act.
B. Limitation on License. You may not modify, alter, reproduce, or distribute the Website or the Platform in part or entirety. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Website or the Platform. You must not decompile, reverse engineer, deconstruct, disassemble, attempt to derive the source code or object code of, modify, or create derivative works of any portion of the Website or the Platform, any updates, or any part thereof, nor attempt to disable or circumvent any security or other technological measure designed to protect the Website or the Platform or any content available through the Website or the Platform. The Website and the Platform and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof) are owned by Bounceback, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. User may not:
i. copy, modify, publish, transmit, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the content (including related computer software) of the Website or the Platform, in whole or in part;
ii. use any illustrations, text, photographs, video, or audio sequences or any graphics separately from the Website or the Platform;
iii. delete or alter any copyright, trademark, patents, or other proprietary rights notices from copies of materials from the Website or the Platform; or
iv. access or use for any commercial purposes any part of the Website or the Platform or any services or materials available through the Website or the Platform, except as otherwise permitted in these Terms of Use.
C. Breach of Restriction. If You breach these license restrictions, or otherwise exceed the scope of the licenses granted in these Terms of Use, Your right to use or access the Website and/or the Platform will cease immediately. Any use of or access to the Website or the Platform not expressly permitted by these Terms of Use is a breach of these Terms of Use, and may violate the Bounceback Intellectual Property and/or other parties’ copyrights, trademarks, trade dress, patents, trade secrets, proprietary information, intellectual property, and other legally protected rights.
D. Reservation of Rights. All right, title, and interest in and to the Website, the Platform, and the Bounceback Intellectual Property shall remain the sole and exclusive property of Bounceback. Bounceback hereby expressly reserves all rights not expressly granted to the User under these Terms of Use.
IX. Representations and Warranties
A. Mutual Representations and Warranties. The Parties represent and warrant to the other Party the following:
i. both Parties have the full right, power, and authority to enter into these Terms of Use and to perform its obligations hereunder; and
ii. these Terms of Use will constitute the legal, valid, and binding obligation of the Parties, enforceable against each Party in accordance with its terms.
B. User Representations and Warranties. User represents and warrants to Bounceback the following:
i. User will abide by and consent to the Use Standards, as set forth in Schedule 2;
ii. User will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of Bounceback, Bounceback’s Services, Bounceback’s Mission, or the Bounceback Intellectual Property;
iii. User’s use of or access to the Bounceback Intellectual Property or the Platform will not infringe, misappropriate, or otherwise violate the intellectual property rights or proprietary rights of Bounceback;
iv. User will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or legal right of a third-party individual or entity;
v. User will not defame, slander, libel, or invade the right of privacy, publicity, or other property rights of any other individual, including other Users; and
vi. User will not otherwise violate the rights of any other User or third party, or violate any applicable local, state, federal, or international law, code, or regulation.
X. Term
A. Commencement. The term of these Terms of Use (the “Term”) shall commence on January 1, 2022. Bounceback, in its sole and absolute discretion and without prior notice, may terminate, restrict, narrow, or limit User’s access to and use of the Platform.
B. Termination by Bounceback. Notwithstanding the foregoing, Bounceback may terminate these Terms of Use, without opportunity for User to cure, prior to the end of the Term (“Termination”), if the User:
i. violates any Use Standards, any representations and warranties made under these Terms of Use, and any other provisions in these Terms of Use;
ii. materially breaches User’s obligations hereunder, including, without limitation, infringement of Bounceback Intellectual Property, misappropriation of Bounceback Intellectual Property, any unauthorized transfer, conveyance, or license of Bounceback Intellectual Property, or non-compliance with all laws and regulations governing User’s use of or access to the Website or the Platform;
iii. infringes upon, misappropriates, or violates the intellectual property rights, publicity rights, privacy rights, or other legal rights of third-party individual or entity;
iv. breaches or causes another to breach a contract with a third-party person or entity; or
v. engages in conduct that reflects materially and unfavorably upon Bounceback, Bounceback’s operations, Bounceback’s Services, Bounceback’s Mission, the Bounceback Intellectual Property, and/or the reputation of Bounceback.
C. Prohibition on Re-Registration. Unless Bounceback agrees to otherwise, if Bounceback terminates or suspends a User’s use of or access to the Platform for any reason, such as the disablement of the User’s Account, the User is prohibited from seeking or acquiring access to, or use of, the Platform under the User’s name, credentials, or an alias.
D. Effect of Termination. Upon Termination of these Terms of Use, User shall immediately discontinue, cease and desist, and terminate the use of or access to the Platform.
XI. Copyright Infringement.
A. In General. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes the copyright owners’ rights under U.S. copyright law.
B. Copyright Notification. If the User believes, in good faith, that materials available on the Website or the Platform infringe Your copyright, You, or Your representative or agent, may send Bounceback a notice requesting that We remove the material (in whole or in part) or disable access to the material. If, however, the User believes, in good faith, that a third party (or other User) has wrongly filed a notice of copyright infringement against You, in connection with Your authorized use of or access to the Website or the Platform, the DMCA permits You to send Bounceback a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA, as available at
https://www.copyright.gov/dmca-directory/faq.html. Notices and counter-notices must be sent to:
i. E-Mail: support@mybounceback.com.
XII. General Disclaimer; Disclaimer of Platform; Limitation of Liability for Platform; Equitable Relief
A. No Liability for Use of Information; No Endorsement. THE INFORMATION CONVEYED AND COMMUNICATED ON THE WEBSITE AND THE PLATFORM IS SOLELY AND EXCLUSIVELY FOR GENERAL INFORMATIONAL PURPOSES. NEITHER BOUNCEBACK, ITS AFFILIATES, NOR BOUNCEBACK’S AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES SHALL BE HELD LIABLE OR RESPONSIBLE FOR ANY ERRORS OR OMISSIONS ON THE WEBSITE OR THE PLATFORM OR FOR ANY DAMAGE YOU MAY SUFFER AS A RESULT OF ACTING UPON, RELYING UPON, OR USING THE INFORMATION CONVEYED AND COMMUNICATED TO YOU. BOUNCEBACK IS NOT AN ACCREDITED OR LICENSED SCHOLASTIC INSTITUTION OR EDUCATIONAL DISTRICT. BOUNCEBACK DOES NOT RECOMMEND OR ENDORSE ANY CLINICIANS, COUNSELORS, PHYSICIANS, EDUCATORS, INSTITUTIONS, PSYCHIATRISTS, SOCIAL WORKERS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER CONTENT AND INFORMATION PRESENTED ON THE WEBSITE OR THE PLATFORM, UNLESS OTHERWISE STATED.
B. General Disclaimer. THE CONTENT AND INFORMATION CONVEYED AND COMMUNICATED ON THE PLATFORM AND THE WEBSITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL ADVICE, DIAGNOSIS, OR TREATMENT OR AS A SUBSTITUTE FOR LICENSED AND/OR AUTHORIZED MENTAL-HELATH OR PHYSICAL-HEALTH EXERCISES, PRACTICES, OR TECHNIQUES. IF YOU HAVE ANY QUESTIONS REGARDING YOUR WELLNESS OR HEALTH, ALWAYS SEEK THE ADVICE OF A LICENSED HEALTH CARE PROVIDER, A MENTAL HEALTH PROFESSIONAL, OR ANOTHER QUALIFIED HEALTH CARE PROVIDER. NEVER DISREGARD SEEKING PROFESSIONAL ADVICE OR DELAY IN SEEKING SAID ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR UNDERSTOOD ON THE WEBSITE OR THE PLATFORM. IF YOU ARE IN A PHYSICAL, MENTAL, OR PSYCHOLOGICAL HEALTH CRISIS, INCLUDING IMMINENT, ACTUAL, OR THREATS OF VIOLENCE, INJURY (TO THE SELF OR TO THE OTHERS), PLEASE IMMEDIATELY DIAL “911.” BOUNCEBACK IS UNDER NO OBLIGATION TO MONITOR OR RESPOND TO EMERGENCY COMMUNICATIONS ON AND THROUGH THE WEBSITE OR THE PLATFORM.
C. No Warranty as to Contents of Website or Platform. BOUNCEBACK MAKES NO, AND YOU ACKNOWLEDGE THAT YOU RECEIVE NO, WARRANTY (PROMISE), EXPRESS OR IMPLIED, INCLUDING A WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE CONTENTS OF THE WEBSITE OR THE PLATFORM OR THE FUNCTIONALITY, VIABILITY, CONTINUITY, OR OPERABILITY OF THE WEBSITE OR THE PLATFORM. YOUR USE OF OR ACCESS TO THE WEBSITE OR THE PLATFORM, OR THE CONTENT OR SERVICES OBTAINED THROUGH THE WEBSITE OR THE PLATFORM, IS AT YOUR OWN RISK. THE PLATFORM AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY STATEMENTS MADE TO THE CONTRARY ARE VOID.
D. No Warranty as to Functionality of Platform. NEITHER BOUNCEBACK, BOUNCEBACK’S AFFILIATES, NOR BOUNCEBACK’S AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER BOUNCEBACK, BOUNCEBACK’S AFFILIATES, NOR BOUNCEBACK’S AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES REPRESENTS OR WARRANTS THAT THE WEBSITE OR THE PLATFORM, OR THE CONTENTS AND SERVICES OBTAINED THROUGH THE WEBSITE OR THE PLATFORM, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM OR THE WEBSITE, OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR THE WEBSITE, OR ANY CONTENT OR SERVICES OBTAINED THROUGH THE WEBSITE OR THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
E. Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER BOUNCEBACK, BOUNCEBACK’S AFFILIATES, NOR BOUNCEBACK’S AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES WILL BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY A DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, ANY MALWARE OR MALICIOUS CODE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICES, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OR ACCESS TO THE WEBSITE OR THE PLATFORM, OR ANY SERVICES OBTAINED THROUGH THE
WEBSITE OR THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED, PUBLISHED, DISPLAYED, OR TRANSMITTED ON THE WEBSITE OR THE PLATFORM, OR ON ANY WEBSITE OR OTHER THIRD-PARTY MULTI-MEDIA PLATFORM OR THIRD-PARTY SITES AND RESOURCES LINKED TO THE WEBSITE OR THE PLATFORM.
F. Disclaimer of Certain Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) USER’S USE OF THE WEBSITE OR THE PLATFORM OTHER THAN EXPRESSLY PERMITTED IN THESE TERMS OF USE ABOVE, AND (B) LIABILITY ARISING FROM THE USER’S INDEMNIFICATION OBLIGATIONS BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
XIII. Indemnification; Arbitration.
A. Indemnification by User. Bounceback assumes no liability to the User or third parties with respect to the operability, functionality, viability, continuity, and maintenance of the Website or the Platform. In addition, Bounceback assumes no liability to the User regarding the accuracy of the marketing, delivery, display, performance, distribution, or use of the Bounceback Intellectual Property or any segments thereof. User acknowledges that Bounceback shall not be responsible, in any way, for advice or information given by the User to third parties in connection with the Platform, the Website, or the Bounceback Intellectual Property or otherwise. User shall indemnify, hold harmless, and defend Bounceback and its directors, officers, supervisors, employees, agents, professional representatives, affiliates, and successors against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by Bounceback or awarded against Bounceback in any judgment, administrative proceeding, or any alternative dispute resolution proceeding, arising out of any third-party claim alleging:
i. breach or non-fulfillment of any representation, warranty, or covenant set forth in these Terms of Use;
ii. any negligent or more culpable act or omission (including any reckless or willful misconduct) of User or its agents, officers, employees, partners, attorneys, or other professional representatives, in connection with the performance of its obligations under these Terms of Use;
iii. any infringement, violation, or misappropriation of third parties’ intellectual property rights in connection with or related to the Website, the Platform, the Bounceback Intellectual Property, or these Terms of Use;
iv. any failure by User to abide by the Use Standards; or
v. any failure by User to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under these Terms of Use.
B. Procedure for Indemnification. Bounceback shall notify the User in writing of any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind arising out of the any third- party claim alleging the aforementioned claims. User shall cooperate with Bounceback at the User’s sole cost and expense. User shall not settle, nor attempt to settle, any matter in a manner that adversely affects the rights of Bounceback without Bounceback’s prior written consent. To the extent applicable, Bounceback may participate in and observe the proceedings at its own cost and expense.
C. Arbitration. In Bounceback’s sole and absolute discretion, Bounceback may require User to submit any disputes arising from, related to, or in connection with these Terms of Use or access to or use of the Website or the Platform, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of the United States of America and the State of Tennessee. In addition, this agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Use, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
XIV. Entirety of the Terms of Use; General Provisions; Equitable Relief.
A. Equitable Relief. User recognizes that, in the event the User fails to perform, observe, or discharge any of its obligations or liabilities under these Terms of Use, or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy at law may prove to be inadequate relief to Bounceback; therefore, Bounceback shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving that actual damages are not an adequate remedy. User acknowledges that actual damages would be both inadequate and insufficient to protect Bounceback from liability related to User’s failure to perform, observe, or discharge any of its obligations or liabilities under these Terms of Use.
B. Privacy Policy. Conditioned upon the use of and access to the Platform and its contents, services, and resources, Bounceback mandates User to review and agree to be bound by Bounceback’s policy on its handling and processing of User’s data and information, including personally identifiable information (“Privacy Policy”), which is incorporated herein by reference at: https://www.mybounceback.com/privacy.
C. Comments, Concerns, and Complaints. All notices of infringement or misappropriation as to the Bounceback Intellectual Property or any third-party’s intellectual property should be directed to: support@mybounceback.com. All other feedback, comments, requests for technical support, and other communications relating to the Website or the Platform should be directed to: support@mybounceback.com.
D. Merger. Each Party acknowledges that it has read these Terms of Use, that it understands it, and that it is the complete and exclusive statement of the agreement between the Parties, which supersedes and merges all prior and contemporaneous proposals, representations and warranties, understandings, and all other agreements, oral and written, between the Parties relating to the subject matter of these Terms of Use and the Website.
E. Enforceability. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Use will continue in full force and effect. To the extent any provision of these Terms of Use is judicially determined to be invalid, illegal, or unenforceable for any reason, a court of competent jurisdiction may reform any such provision to make it valid, legal, and enforceable.
F. Governing Law; Jurisdiction. These Terms of Use are governed and interpreted pursuant to the laws of the State of Tennessee, United States of America, notwithstanding any principles of conflict of law. For all disputes, legal suits, actions, or proceedings not subject to arbitration under Section XV hereof, You agree to irrevocably submit to the personal jurisdiction and venue of the courts located within or embracing Williamson County, Brentwood, Tennessee, and waive any and all objections to the exercise of jurisdiction over You by such courts, as well as venue in such courts.
G. No Assignment. These Terms of Use may not be assigned or transferred by User without Bounceback’s prior written consent. User acknowledges and agrees that these Terms of Use, and all incorporated agreements, may be automatically assigned by Bounceback in its sole and absolute discretion.
H. Attachments. The exhibits, schedules, and appendices attached hereto are included in these Terms of Use and incorporated into these Terms of Use as part of a unified document.
SCHEDULE 1 – ELIGIBILITY REQUIREMENTS
In order to use or access the Platform, the User must meet the following eligibility requirements:
User must be of legal age (eighteen (18) years or older) and of legal capacity to form a binding contract with Bounceback; and
User must be an educator or other personnel affiliated with, or employed by, a scholastic institution or educational district.
SCHEDULE 2 – USE STANDARDS
Without limiting the foregoing and pursuant to the Terms of Use, User shall adhere to the following Use Standards. User shall not:
Infringe or misappropriate any Bounceback Intellectual Property or other intellectual property rights of any third party;
Violate the legal rights (including the rights of publicity and privacy) of third-party individuals or entities or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and the Privacy Policy;
Conceal, mispresent, or omit any material information to Bounceback or any third party in connection with the Terms of Use and the Platform;
Promote any illegal activity, or advocate, promote, or assist any unlawful act;
Cause annoyance, inconvenience, or needless anxiety or be likely to upset, harass, mortify, humiliate, embarrass, alarm, aggravate, or annoy any other third-party person or entity;
Impersonate any person, or misrepresent, mislead, or conceal the identity or affiliation with Bounceback or any third-party person or entity; and
Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, marketing or advertising, except as otherwise authorized by Bounceback.
SCHEDULE 3 – FEATURES FOR USERS HAVING MEMBERSHIP
The following features are available to a User who registered for an Account, having Membership. The exclusive features available for Users who have registered an Account to access and use the Platform are as follows:
i. Video content promoting wellness and professional development;
ii. Interactive surveys;
iii. Module guides and other downloadable documents; and
iv. Other such features authorized and created by Bounceback.