GUARD FACTORY LLC SERVICES AND WAIVER AGREEMENT
Welcome to Guard Factory LLC (“GF”). This Services and Waiver Agreement (“Agreement”) governs the relationship between GF and You, where “You” or “Your” is defined as the Participant (as defined below) in the Services if the Participant is an adult or as the parent or legal guardian of a minor Participant or Participants in the Services. In addition, this Agreement contains certain provisions that are applicable to any relationship between GF and a third-person (other than a Participant or a parent or legal guardian of a minor Participant) which may enter into this Agreement in order to guarantee and make payment to GF for or on behalf of a Participant (such third-person being defined as a “Limited Guarantor” under this Agreement). For the sake of clarity, the words “You” or “Your” (when capitalized) and “Participant” in this Agreement do not include a “Limited Guarantor” unless expressly stated in this Agreement. This Agreement sets forth the applicable provisions to You or to a Limited Guarantor, as the case may be.
By clicking I agree, I consent, I acknowledge, orI accept, You (or if applicable Limited Guarantor) agree(s) to be bound all of the terms and conditions of this Agreement, as it may be amended from time to time, and You (or if applicable Limited Guarantor) acknowledge(s) You (or if applicable Limited Guarantor) have had the opportunity to review this Agreement, discuss it with an attorney and address any questions about this Agreement with GF. PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR (OR IF APPLICABLE LIMITED GUARANTOR’S) LEGAL RIGHTS. THIS AGREEMENT CONTAINS AN ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND A BINDING ARBITRATION AGREEMENT, AMONG OTHER PROVISIONS.
For good and valuable consideration, the sufficiency of which is hereby acknowledged by the parties to this Agreement, such parties hereby agree as follows:
Definitions: In this Agreement, the following terms shall have the following meanings:
“Fees” means amounts owed and paid by You (or if applicable Limited Guarantor) to GF (or its third party subcontractor, agent or other designee) in consideration for the Services, based on GF’s rates for the Services, as communicated to You (or if applicable Limited Guarantor) and subject to change, in GF’s sole discretion, at any time.
“HIPPA” means the United States Health Insurance Portability and Accountability Act, as amended.
“Injuries” means major or minor personal, physical, bodily, emotional, mental, economic, property, data, privacy, information or other types of injuries or damages, including but not limited to, (i) death; (ii) paralysis, brain damage, heart attacks, strokes, disfigurement, heat stress and/or heat strokes, dehydration, hypothermia, traumatic brain injury, hearing loss, torn or damaged muscles or ligaments, broken bones, allergic reactions, burns, sprains, bruises and scrapes; (iii) aggravation of any pre-existing injuries or medical conditions; (iv) pain and suffering; (v) loss of consortium, love, affection, comfort, companionship, or care; (vi) emotional distress, anxiety, depression, embarrassment, humiliation, or shock; (vii) lost wages or lost earning capacity; (viii) lost, stolen, misused, breached, or damaged property, data, privacy or information (including, but not limited to, Personal Information and Payment Information); and (ix) any other disability, impairment, incapacity, injury or damage.
“Participant” means the individual or individuals You identify to GF as participating in and using the Services.
“Payment Information” means and includes (i) credit card information provided by You (or if applicable Limited Guarantor) to GF, including credit card number, expiration date and security code, and cardholder’s full name, billing address and telephone number; (ii) bank account information provided by You (or if applicable Limited Guarantor) to GF, including bank account number, wire routing number, bank address, and accountholder’s full name, billing address and telephone number; and (iii) any other payment information You (or if applicable Limited Guarantor) provide to GF.
“Personal Information” means and includes (i) Your full name, postal address, telephone number and email address, or (ii) in the case of a Limited Guarantor, its full name, organization name, postal address, telephone number and email address.
“Released Parties” means (i) GF; (ii) owners, managers and lessors of any premises used to conduct the Services; (iii) any sponsors of GF or the Services; (iv) any vendor or subcontractor of GF (including, but not limited to, any coach, instructor, trainer, educator or referee, as well as any vendor relating to marketing or payments); (v) any parent, subsidiary, affiliate, predecessor, successor, or assign of the entities or individuals (as applicable) named or described in the preceding (i)-(iv); (vi) any current, former, or future officer, director, partner, owner, member, manager, agent, trustee, employee, contractor or representative of the entities named or described in the preceding (i)-(v); and (vii) any other participant or other attendee or spectator.
“Services” means any service or offering provided by GF, including but not limited to, basketball-related training sessions, clinics, camps, courses, teams, practices, events, tournaments, programs or content.
Voluntary Participation At Your Own Risk:YOU CERTIFY THAT PARTICIPATION BY PARTICIPANT IN THE SERVICES IS COMPLETELY VOLUNTARY (IN YOUR SOLE AND ABSOLUTE DISCRETION) AND THAT PARTICIPANT CAN TAKE PART IN THE SERVICES.
Legal Authority:
Your Legal Authority: You represent and warrant that You, as the Participant or as the parent or other guardian with legal responsibility for the Participant, (i) has the legal authority to enter into and be bound by this Agreement (as may be amended); (ii) will not violate any other agreement to which You or the Participant are bound by entering into this Agreement; and (iii) Your use of the Services is, and will at all times be, in compliance with all applicable laws and regulations.
Limited Guarantor's Legal Authority: Limited Guarantor represents and warrants that it (i) has the legal authority to enter into and be bound by the applicable provisions of this Agreement (as may be amended); (ii) will not violate any other agreement to which it is bound by entering into this Agreement; and (iii) will at all times that this Agreement is in effect act in compliance with all applicable laws and regulations.
Online Account:
Usernames and Passwords: Using or paying for the Services may require You (or if applicable Limited Guarantor) to create an online account with a username and a password. You (or if applicable Limited Guarantor) agree(s) to maintain the security, confidentiality, and integrity of your username, password, and any other security measures employed with regard to the Services or such online account. You (or if applicable Limited Guarantor) are responsible for (as applicable) all access to, purchase of and use of the Services under your username and password, including by any Participant or Your partner or spouse (or any other person within your organization, in the case of Limited Guarantor).
Security Measures: You (or if applicable Limited Guarantor) agree(s) to immediately notify GF of any breach of security, including unauthorized use of your username or password, and to immediately take all reasonable steps to prevent its further occurrence, including but not limited to, changing your password. You (or if applicable Limited Guarantor) further understand(s) and agree(s) that GF may take actions it deems reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your account.
Equipment: You are solely responsible for purchasing and providing any equipment required for Your registration for, access to, and use of the Services (including by the Participant), including but not limited to, shoes, uniforms and balls, as well as any computer hardware, software, and internet access.
Payments: This Section 6. applies to You but does not apply to Limited Guarantors.
Payment Obligations: You agree to pay the required Fees prior to receiving Services, unless agreed upon otherwise by GF and You. GF may refuse to provide Services to You or Participant if the required Fees have not been paid in full prior to the Participant’s participation in the Services (or otherwise when due). You understand that all Fees paid under this Agreement are non-refundable, unless explicitly stated otherwise in this Agreement, and that all Fees paid under this Agreement are fully earned by GF upon payment. Even if a third-person agrees to guarantee or make payment to GF on Your behalf, You are still responsible for the payment of all fees and other amounts owed to GF under this Agreement, if such third-person fails to perform any of its payment obligations for You or on Your behalf.
Special Rates: GF may, in its sole discretion, extend special discounts, rates, coupons or promotional offers from time to time (collectively, “Special Rates”). GF has no obligation to communicate such Special Rates to You, extend or provide any Special Rates to You, or adjust any Fees You have paid or committed to pay to reflect such Special Rates.
Payment Authorization: You shall provide accurate Payment Information to GF or its third party agent, subcontractor or other designee. You hereby authorize GF or its third party agent, subcontractor or other designee to charge Your credit card, bank account (or other payment source, if applicable) to collect Fees and to retain Your Personal Information and Payment Information. You represent and warrant that You are authorized to provide the Payment Information and to authorize GF and its third party agent, subcontractor or other designee to use such Payment Information for the collection of Fees.
Payment Waiver: You hereby waive presentment, protest, demand, notice of dishonor or default, notice of non-payment, notice of any billings of Your payment obligations, and all demands and notices of any other kind in connection with Your payment obligations under this Agreement. You understand that if You fail to pay Fees when due, You are responsible for all costs of collection incurred by GF, including attorneys’ fees.
Limited Guarantor’s Payment Obligations: If applicable, Limited Guarantor agrees to pay the required Fees for or on behalf of a Participant as agreed upon by GF and such Limited Guarantor. GF may refuse to provide Services to an applicable Participant if the required Fees are not paid in full as agreed upon by GF and such Limited Guarantor. If GF sends Limited Guarantor an invoice for Services, GF may do so electronically, and all invoices are due within 15 days after being sent by GF to Limited Guarantor. Limited Guarantor understands that all Fees paid under this Agreement are non-refundable, unless explicitly stated otherwise in this Agreement, and that all Fees paid under this Agreement are fully earned by GF upon payment. If applicable, Limited Guarantor shall provide accurate Payment Information to GF or its third party agent, subcontractor or other designee. If applicable, Limited Guarantor hereby authorizes GF or its third party agent, subcontractor or other designee to charge Limited Guarantor's credit card, bank account (or other payment source, if applicable) to collect Fees and to retain applicable Personal Information and Payment Information. Limited Guarantor represents and warrants that it is authorized to provide the Payment Information and to authorize GF and its third party agent, subcontractor or other designee to use such Payment Information for the collection of Fees. Limited Guarantor hereby waives presentment, protest, demand, notice of dishonor or default, or notice of non-payment of its payment obligations, and all demands and notices of any other kind in connection with its payment obligations under this Agreement. Limited Guarantor understand that if it fails to pay Fees when due, it is responsible for all costs of collection incurred by GF, including attorneys’ fees. Limited Guarantor expressly agrees it is responsible for the payment of all Fees and other amounts owed to GF under this Agreement pertaining to one or more applicable Participants for whom Limited Guarantor has agreed to guarantee or make payments to GF, even though Limited Guarantor is not the recipient of the Services under this Agreement.
Conduct: You acknowledge that the Services involve fast-paced, physical activities with physical contact, and that it is necessary that Participant be able to take direction and instruction from staff, coaches and instructors and interact appropriately with others. GF may suspend or terminate Participant’s participation in the Services if Participant’s conduct is, in GF’s sole determination, unreasonable, rude, disruptive, uncooperative, adversarial or disrespectful, or if Participant is unable to follow directions and instructions. In addition, GF may suspend or terminate Participant’s participation in the Services if GF determines that Participant’s participation in the Services may pose medical risk or harm to Participant or any other person.
Accuracy of Information: You (or if applicable Limited Guarantor) represent(s) and warrant(s) that all information You (or if applicable Limited Guarantor) provide(s), through or relating to the Services or this Agreement, is at all times current, accurate, complete and truthful, including but not limited to, Personal Information, Payment Information, and any information regarding Participant.
No HIPPA Protection: In Your sole discretion, You may provide to GF information regarding the health of Participant, including but not limited to, Participant’s abilities, injuries, medical conditions, medications, prior surgeries and treatments. You are hereby notified that GF is not required to comply with, and does not comply with, HIPPA, and GF has no express or implied duty of confidentiality or privacy to You, Participant, or any other party regarding any such information.
Electronic Communications:
Consent: You (or if applicable Limited Guarantor) hereby expressly consent(s) to receiving informational, financial, operational or other transactional communications, including any confirmation, update, disclosure, notice, agreement, statement, term, condition, or any other information (collectively, “Transactional Communication”) from GF and any third party agent, subcontractor or other designee of GF, to any email address or phone number, including any cellular telephone number, provided by You (or if applicable Limited Guarantor). You (or if applicable Limited Guarantor) further expressly consent(s) to receiving promotional, advertising or other marketing communications, including communications regarding GF and third-party products and services (collectively, “Marketing Communications”) from GF and any third party agent, subcontractor or other designee of GF, to any email address or phone number, including any cellular telephone number, provided by You (or if applicable Limited Guarantor). All agreements, notices, disclosures, authorizations, verifications, confirmations, or other electronic communications GF provides according to this paragraph shall satisfy any legal requirement for written communication or the providing of notice.
Opt-Out: With respect to Marketing Communications, You (or if applicable Limited Guarantor) may opt-out of such communications by following the opt-out instructions contained within the applicable communication from GF or any third party agent, subcontractor or other designee of GF. You may also opt-out at any time by emailing GF at info@theguardfactory.com. You understand that You (or if applicable Limited Guarantor) may receive additional emails, calls and/or texts before GF can process such opt-out request.
Claims:
Release of Claims by You: YOU, ON YOUR BEHALF AND ON BEHALF OF THE PARTICIPANT, THE PARTICIPANT’S PARENTS AND IMMEDIATE AND EXTENDED FAMILY MEMBERS, AND ITS OR THEIR AGENTS, PERSONAL REPRESENTATIVES, EXECUTORS, TRUSTEES, NEXT OF KIN, HEIRS, SUCCESSORS, CUSTODIANS, AFFILIATES AND ASSIGNS (COLLECTIVELY THE “WAIVING PARTIES”) AGREE TO ACCESS AND USE THE SERVICES AT YOUR OWN RISK AND ACKNOWLEDGE THE POSSIBILITY OF INJURIES BY PARTICIPATING IN THE SERVICES. THE WAIVING PARTIES DO HEREBY (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) VOLUNTARILY AND FOREVER RELEASE AND WAIVE, AND COVENANT NOT TO SUE REGARDING, ANY AND ALL CLAIMS, DEMANDS, CASES, DISPUTES, CONTROVERSIES, ACTIONS, CAUSES OF ACTION, DEBTS, DAMAGES, LOSSES, COSTS, FEES, EXPENSES, PENALTIES, AWARDS, JUDGMENTS OR ANY OTHER LIABILITIES OR OBLIGATIONS OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, STATUTE, REGULATION, EQUITY, ORDINACE OR OTHERWISE (AND WHETHER ARISING OUT OF OR RELATING TO PAST, PRESENT OR FUTURE ACTS OR OMISSIONS), AND INCLUDING, WITHOUT LIMITATION, FOR NEGLIGENCE OR GROSS NEGLIGENCE, PERSONAL INJURY, LOSS OR THEFT OF PERSONAL INFORMATION OR PAYMENT INFORMATION, ACCIDENT, DISFIGUREMENT, PARALYSIS, EMOTIONAL DISTRESS, VIOLATION OF PRIVACY, DEFAMATION OR SLANDER, AND MISAPPROPRIATION OF ANY TYPE OF INTELLECTUAL PROPERTY (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) THAT WAIVING PARTIES MAY HAVE AGAINST THE RELEASED PARTIES.
Release of Claims by Limited Guarantor: IF APPLICABLE, LIMITED GUARANTOR HEREBY (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) VOLUNTARILY AND FOREVER RELEASES AND WAIVES THE RELEASED PARTIES, AND COVENANTS NOT TO SUE ANY OF THE RELEASED PARTIES REGARDING ANY AND ALL CLAIMS, DEMANDS, CASES, DISPUTES, CONTROVERSIES, ACTIONS, CAUSES OF ACTION, DEBTS, DAMAGES, LOSSES, COSTS, FEES, EXPENSES, PENALTIES, AWARDS, JUDGMENTS OR ANY OTHER LIABILITIES OR OBLIGATIONS OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, STATUTE, REGULATION, EQUITY, ORDINACE OR OTHERWISE (AND WHETHER ARISING OUT OF OR RELATING TO PAST, PRESENT OR FUTURE ACTS OR OMISSIONS), AND INCLUDING, WITHOUT LIMITATION, FOR NEGLIGENCE OR GROSS NEGLIGENCE, LOSS OR THEFT OF PERSONAL INFORMATION OR PAYMENT INFORMATION, EMOTIONAL DISTRESS, VIOLATION OF PRIVACY, DEFAMATION OR SLANDER, AND MISAPPROPRIATION OF ANY TYPE OF INTELLECTUAL PROPERTY (COLLECTIVELY, “GUARANTOR CLAIMS”) THAT LIMITED GUARANTOR MAY HAVE AGAINST THE RELEASED PARTIES.
Meaning of Negligence: YOU (OR IF APPLICABLE, LIMITED GUARANTOR) UNDERSTAND(S) AND ACKNOWLEDGE(S) THAT “NEGLIGENCE”, AS USED IN THIS AGREEMENT, MAY INCLUDE, WITHOUT LIMITATION, GF’S NEGLIGENT OR GROSSLY NEGLIGENT (I) DESIGN, OPERATION, SUPERVISION, MONITORING OR PROVISION OF THE SERVICES; (II) RECRUITING, HIRING, TRAINING AND SUPERVISION OF ANY STAFF, VENDOR OR CONTRACTOR; (III) FAILURE TO PROVIDE OR COORDINATE ANY NECESSARY MEDICAL CARE; (IV) FAILURE TO PROVIDE A SAFE, COMFORTABLE OR INCLUSIVE ENVIRONMENT; (V) COLLECTION, USE, DISCLOSURE OR STORAGE OF PERSONAL INFORMATION OR PAYMENT INFORMATION (INCLUDING NEGLIGENT FAILURE TO IMPLEMENT OR MAINTAIN CYBER SECURITY CONTROLS TO PROTECT SUCH INFORMATION); OR ANY OTHER NEGLIGENT ACT OR OMISSION.
Unauthorized Claims: You (or if applicable Limited Guarantor) agree(s) that if You (on Your own behalf or on behalf of another entity or individual) (or if applicable Limited Guarantor) assert any Claim (or, in the case of Limited Guarantor, any Guarantor Claim) against any of the Released Parties and/or breach Your (or if applicable Limited Guarantor’s) covenant not to sue any of the Released Parties, You (or if applicable Limited Guarantor) will pay all reasonable fees (including attorneys’ fees), costs and expenses incurred by the Released Parties to defend such Claim (or Guarantor Claim, if applicable).
California Residents: ALL PARTIES TO THIS AGREEMENT AGREE THAT ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY OF THE UNITED STATES ARE HEREBY EXPRESSLY WAIVED. SUCH SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Medical Treatment: You hereby authorize the Released Parties to obtain emergency medical treatment for Participant, including, if necessary, ambulatory transport and surgical procedures, if Participant is injured or becomes ill during participation in the Services, even if the Released Parties are unable to contact You. You further agree that any expenses for medical treatment received by Participant (including, but not limited to, any medical transport) as a result of any injury or illness during participation in the Services is Your sole and exclusive responsibility.
Authorization for Recordings: You (or if applicable Limited Guarantor) hereby authorize(s) and grant(s) to GF and any third party agent, subcontractor or designee thereof the right to: (a) record You and the Participant (or if applicable Limited Guarantor) (including, without limitation, Your and his/her/their/its appearance, image, movement, actions and voice and the appearance of any other family member or representative of Participant) by still photography, video, audio and all other means of recording (the results of which shall be deemed the “Recordings”); (b) edit the Recordings in GF’s sole discretion; (c) use the Recordings, along with Your and Participant’s (or if applicable Limited Guarantor’s) full name, photograph, likeness and voice, in connection with the Services, and all ancillary, derivative, future and subsidiary uses thereof and all advertising, marketing, promotions, communications, content and publicity in connection with GF; and (d) exploit the Recordings for the benefit of GF in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity. You (or if applicable Limited Guarantor) hereby represent(s) and warrant(s) that You (or if applicable Limited Guarantor) are authorized to grant to GF the rights granted in this paragraph. The Recordings and any derivatives thereof shall be the sole and exclusive property of GF, and to the extent required by law, You (or if applicable Limited Guarantor) hereby grant(s) to GF a worldwide, perpetual, irrevocable and non-terminable, unlimited, royalty-free license (with unlimited rights of sublicense) to the Recordings and any photograph, likeness and voice contained in the Recordings.
Indemnification: YOU (OR IF APPLICABLE LIMITED GUARANTOR) AGREE(S) TO INDEMNIFY AND HOLD HARMLESS THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY CLAIM ASSERTED BY ANY OTHER THIRD PARTY AND ANY GUARANTOR CLAIM IF APPLICABLE), LOSSES, EXPENSES, DAMAGES, AND COSTS, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES, RESULTING, WHETHER DIRECTLY OR INDIRECTLY, FROM YOUR (OR IF APPLICABLE LIMITED GUARANTOR’S) BREACH OF THIS AGREEMENT OR VIOLATION OF LAW.
Disclaimer of Warranties: YOU (OR IF APPLICABLE LIMITED GUARANTOR) ACKNOWLEDGE(S) AND AGREE(S) THAT GF DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW. AT ALL TIMES YOU (OR IF APPLICABLE LIMITED GUARANTOR) ARE ACCESSING, PURCHASING AND USING THE SERVICES ON AN “AS IS, WHERE IS, AND IF AND AS AVAILABLE” BASIS. NEITHER GF NOR ANY OTHER THIRD PARTY SHALL BE RESPONSIBLE FOR PROBLEMS ARISING FROM OR INADEQUACIES IN THE SERVICES. GF DOES NOT REPRESENT OR WARRANT THE ACCURACY, SAFETY, ADEQUACY, QUALITY, EFFECTIVENESS, IMPACT, AVAILABILITY, SUITABILITY, RESULTS OR COMPLETENESS OF THE SERVICES. NEITHER GF NOR ANY OTHER THIRD PARTY IS RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY COMPUTERIZED DEVICE (INCLUDING, BUT NOT LIMITED TO, ANY COMPUTER, MOBILE DEVICE, SERVER OR NETWORK EQUIPMENT, OR COMPUTERIZED OR ONLINE NETWORK) OR ANY SECURITY BREACH (INCLUDING, BUT NOT LIMITED TO, ANY VIRUS, MALWARE OR TROJAN HORSE, OR THEFT OR LOSS OF PERSONAL INFORMATION OR PAYMENT INFORMATION), RELATED TO OR RESULTING FROM, IN ANY WAY, ACCESS TO, USE OF, OR PAYMENT FOR THE SERVICES OR ANY PROVISION OF THIS AGREEMENT. GF IS PROVIDING THE SERVICES AND ENTERING INTO THIS AGREEMENT WITHOUT THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING, AND FREEDOM FROM COMPUTER VIRUS OR DATA THEFT. THE FOREGOING LIMITATION OF RELIEF IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN GF AND YOU (OR IF APPLICABLE LIMITED GUARANTOR) UNDER THIS AGREEMENT.
Limitation of Liability: IN NO EVENT WILL ANY OF THE RELEASED PARTIES BE LIABLE TO YOU, ANY OTHER WAIVING PARTIES, OR ANY OTHER THIRD PERSON (OR IF APPLICABLE LIMITED GUARANTOR) FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RESULTING FROM THE SERVICES OR ANY PROVISION OF THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF THE RELEASED PARTIES (TAKEN TOGETHER) TO YOU, ANY OTHER WAIVING PARTIES, OR ANY OTHER THIRD PARTY (OR IF APPLICABLE LIMITED GUARANTOR) FOR ALL CLAIMS (OR GUARANTOR CLAIMS IF APPLICABLE) (ALL CASES TAKEN TOGETHER) IS LIMITED TO THE GREATER OF (A) THE AMOUNT YOU (OR IF APPLICABLE LIMITED GUARANTOR) HAVE PAID TO GF FOR ACCESS TO AND USE OF THE SERVICES BY ONE OR MORE PARTICIPANTS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIMS (OR GUARANTOR CLAIMS IF APPLICABLE); OR (B) $500 IN THE AGGREGATE. THE FOREGOING LIMITATION OF RELIEF IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN GF AND YOU (OR IF APPLICABLE LIMITED GUARANTOR) UNDER THIS AGREEMENT.
Intellectual Property:
Ownership of IP; No Reverse Engineering: You (or if applicable Limited Guarantor) acknowledge(s) and agree(s) that the Services incorporate and reflect GF’s unique and proprietary methods, knowledge, know-how, ideas, practices, processes, content, programming, innovations, and any other intellectual property (including, but not limited to, copyrights and trade secrets), all of which shall be owned and remain the property of GF (collectively, the “GF IP”). You (or if applicable Limited Guarantor) agree(s) not to, directly or indirectly (including encouraging or assisting any other person to), reverse engineer, copy, misappropriate or duplicate the Services or any GF IP for any purpose whatsoever, including but not limited to, to develop and/or commercialize products or services similar to the Services.
Feedback: You (or if applicable Limited Guarantor) may submit to GF input, ideas, suggestions or other feedback regarding the Services (“Feedback”). Feedback is nonconfidential and shall be owned by and become the sole property of GF.
Alternative Dispute Resolution:
Arbitration: Except as expressly provided in this Agreement, GF and You (or if applicable, Limited Guarantor) agree(s) that any Claim (or Guarantor Claim, if applicable) shall be exclusively resolved by binding arbitration, rather than in court. WITH RESPECT TO ANY AND ALL CLAIMS (OR GUARANTOR CLAIMS IN THE CASE OF LIMITED GUARANTOR), EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO BINDING ARBITRATION AND WAIVES ITS CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY.
Arbitration Procedures: Any party to this Agreement may initiate an arbitration proceeding, which will be conducted by a single neutral arbitrator. All parties to this Agreement agree as follows: (i) any arbitration shall be initiated before JAMS and conducted under the JAMS Streamlined Arbitration Rules and Procedures (available at www.jamsadr.com) (“Arbitration Rules”); (ii) the rules of JAMS will govern all aspects of the arbitration, except to the extent such rules are in conflict with this Agreement, in which case this Agreement shall control; (iii) the JAMS arbitrator shall be located in Collin County in Texas, with the arbitration hearing held at the arbitrator’s location; and (iv) payment of all filing, administrative, and arbitrator fees will be governed by the Arbitration Rules.
Arbitrator’s Authority and Award: The arbitrator will decide the rights and liabilities, if any, of the parties to this Agreement with respect to any Claim (or Guarantor Claim in the case of a Limited Guarantor), and the dispute will not be consolidated with any other matters or joined with any other cases or parties (including, but not limited to, any class or class action matter). The arbitrator will have the authority to grant motions dispositive of all or part of any Claim (or Guarantor Claim in the case of a Limited Guarantor). The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available under applicable law, the Arbitration Rules, and this Agreement. The arbitrator will issue a written award and reasoned statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief that a judge in an applicable court of law would have. Any award will be subject to judicial confirmation or entry in any court having jurisdiction pursuant to this Agreement. The arbitration provisions in this Agreement shall be governed by the Federal Arbitration Act and federal arbitration law.
Confidentiality: All aspects of the arbitration proceeding, including but not limited to, the award of the arbitrator and compliance therewith, will be strictly confidential among the parties to this Agreement. Such parties agree to maintain confidentiality of the arbitration proceedings unless otherwise required by law. This paragraph will not prevent any party to this Agreement from submitting to a court of law (of competent jurisdiction) any information necessary to enforce the arbitration provisions of this Agreement or any arbitration award.
Exceptions to Arbitration: Notwithstanding the agreement among the parties to this Agreement to arbitrate Claims (or Guarantor Claims in the case of a Limited Guarantor), GF may bring a claim in small claims court relating to any non-payment of any amount owed by You (or a Limited Guarantor if applicable). Further, any party to this Agreement may seek temporary injunctive relief or other equitable relief in a court of competent jurisdiction pending arbitration; provided a request for such temporary measures will not be deemed a waiver of any other rights or obligations under this Agreement.
Term and Termination:
Term: This Agreement shall continue until terminated as provided for herein.
Voluntary Termination; Refunds: GF may terminate this Agreement at any time, for any reason, with written notice to You (or if applicable Limited Guarantor). You may terminate this Agreement at any time, for any reason, by discontinuing use of the Services. If You have prepaid for any Services at the time of termination as described in this paragraph, then GF shall refund to You the amount of any prepayment for Services not yet used by You within sixty (60) days following Your written request for a refund.
Termination for Breach: If You (or if applicable Limited Guarantor) breach(es) this Agreement, GF may promptly terminate this Agreement upon written notice to You (or if applicable Limited Guarantor); no refunds shall be provided for a termination pursuant to this paragraph.
Miscellaneous Provisions:
Non-Waiver: The failure by any party to this Agreement to exercise or enforce a legal right, remedy, obligation or benefit in this Agreement or pursuant to any applicable law, for any reason, does not constitute waiver of such party’s right to do so in the future.
Assignability: You (or if applicable Limited Guarantor) cannot assign, delegate or transfer this Agreement, but You may change the Participant or Participants by using Your GF account or otherwise notifying GF of such change. This Agreement, or any specific obligations or rights of GF hereunder (including, but not limited to, GF’s right to collect, hold and process Payment Information), may be assigned by GF in its sole discretion and without notice.
Subcontractors: GF may freely subcontract (i) the design, development, delivery, supervision and premises of the Services, in or whole or in part (with GF permitted to provide any information about the Participant to such subcontractor); or (ii) any of GF’s other rights under this Agreement, including, but not limited to, GF’s rights to communicate with You (or if applicable Limited Guarantor) and collect and use Your (or if applicable Limited Guarantor's) Payment Information and Personal Information.
Severability: The parties to this Agreement agree that this Agreement is intended to be as broad as permitted under applicable law. To the extent that a court of competent jurisdiction determines any part of this Agreement to be invalid, illegal, void or unenforceable, that part will be modified by such court solely to the extent necessary to cause that part to be enforceable (or if such part cannot be so modified, then such part shall be deemed stricken from this Agreement), and the remainder of this Agreement will remain fully binding and enforceable to the maximum extent permitted by law.
Modification: GF may modify, suspend or terminate the Services, including but not limited to, the nature, pricing, length, frequency, scheduling, location, staffing or programming of the Services, at any time and for any reason in GF’s sole discretion, without any liability to You (or if applicable Limited Guarantor), other than Your right to discontinue use of the Services and request a refund as set forth in this Agreement (if applicable). Additionally, GF may modify this Agreement at any time in GF’s sole discretion; such modification will become effective immediately upon either GF’s posting of the modified agreement on GF’s website, or notification to You (or if applicable Limited Guarantor) at the email address or postal address You (or if applicable Limited Guarantor) provide(s) to GF. Your continued use of the Services (or, if applicable in the case of Limited Guarantor, payment for the Services) after any modification to the Services or this Agreement constitutes Your (or if applicable Limited Guarantor’s) conclusive acceptance of such modification. If You do not agree to this Agreement, including as amended from time to time, You must not use any portion of the Services and Your sole remedy is to discontinue Your use of the Services and request a refund as set forth in this Agreement (if applicable). Neither the course of conduct between the parties to this Agreement nor trade practice shall act to modify this Agreement.
Governing Law: This Agreement and the use of and/or payment for the Services shall be governed by and construed and enforced in accordance with the laws of the State of Texas without regard to conflict of law principles. For any Claim (or Guarantor Claim if applicable) that is not subject to arbitration or small claims court, the parties to this Agreement hereby submit to the personal and exclusive jurisdiction of the state and federal courts of the State of Texas and the United States, respectively, located within Collin County, Texas.
Electronic Consent: An electronic consent to this Agreement, including but not limited to, Your (or if applicable Limited Guarantor’s) selecting or clicking I agree, I consent, I acknowledge, orI accept, shall constitute Your (or if applicable Limited Guarantor’s) complete acceptance of this Agreement (as may be amended) and be comparable to Your (or if applicable Limited Guarantor’s) hand-written or other signature to this Agreement (as may be amended).
No Third Party Beneficiaries: Except as expressly set forth herein, this Agreement is not intended to benefit any third party.
Postings: You (or if applicable Limited Guarantor) agree(s) not to post or communicate any information about the Released Parties, whether publicly or to any individual third party, which is deceptive, misleading, defamatory, inaccurate, untruthful or otherwise intended to harm the reputation and goodwill of any of the Released Parties.
Survival: Without limitation, (i) all of Your (or if applicable Limited Guarantor’s) obligations under this Agreement (including Your [or if applicable Limited Guarantor’s] payment obligations due at the time this Agreement is terminated and Your [or if applicable Limited Guarantor’s] indemnification obligations); (ii) Your (or if applicable Limited Guarantor’s) authorizations under this Agreement regarding Recordings and receipt of communications; (iii) the release of Claims (or Guarantor Claims, if applicable), limitations on liability, disclaimer of warranties, and the arbitration provisions in this Agreement; and (iv) all of GF’s and any other Released Parties’ rights under this Agreement will survive and continue after the term of this Agreement or any suspension or cessation of the Services.
Force Majeure: GF will not be liable for any delay in delivery of the Services or Your inability to use the Services due to an event beyond GF’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, weather, epidemic, pandemic, governmental action, uprising, earthquake, flood or any other natural or man-made condition outside of GF’s control.
Notices to GF: In addition to any email address or electronic communication means that GF may provide to You (or if applicable Limited Guarantor), You (or if applicable Limited Guarantor) may also send any notice required under or contemplated by this Agreement to Guard Factory LLC, 4324 Mapleshade Lane, Suite 150, Plano, TX 75093.
Headings: Section and paragraph headings in this Agreement are for convenience only, and not intended to affect the interpretation, terms or conditions of this Agreement.
Website Terms of Use: The GF website terms of use are available on the GF website. By entering into this Agreement, You (or if applicable Limited Guarantor), reaffirm agreement with the GF website terms of use, which shall continue to be in full force and effect. In the event of any conflict between this Agreement and the GF website terms of use, this Agreement shall control.
Privacy Policy: The GF Privacy Policy is available on the GF website. By entering into this Agreement, You (or if applicable Limited Guarantor), agree(s) to the GF Privacy Policy, as may be amended from time to time, and the Privacy Policy is incorporated into this Agreement by reference.
Entire Agreement: This Agreement, including any amendment to this Agreement and any additional terms, policies, rules or guidelines applicable to the Services that GF may communicate to You (or if applicable Limited Guarantor), each of which are incorporated herein by reference, are the entire and exclusive understanding and agreement between You (or if applicable, Limited Guarantor) and GF regarding the Services and all other terms and conditions. You are not relying on any oral or written promises, representations, statements, covenants or warranties, other than those set forth herein, to induce You (or if applicable, Limited Guarantor) to agree to and accept this Agreement. This Agreement replaces any prior oral or written agreements or other communication between the parties to this Agreement with respect to the subject matter of this Agreement. Any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to this Agreement.