LELAND TERMS OF SERVICE
These Terms were last updated on August 16, 2023
Welcome, and thank you for your interest in Leland Inc. (“Leland,” “we,” or “us”) and our website at www.joinleland.com, along with our related websites, content, mobile or downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Leland regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF LELAND AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE OPERATIONAL COMMUNICATIONS ABOUT YOUR USE OF THE SERVICE AND MARKETING COMMUNICATIONS. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND LELAND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Leland Services Overview
Leland provides an online platform that provides features and functionality to enable coaches (“Coaches”) to connect and interact with clients (“Clients”) for the purposes of enabling Clients to receive, and allowing Coaches to provide, certain training, coaching, mentoring, and other advisory services (“Coaching”).
- 1.1Disclaimer. WE DO NOT HAVE ANY OVERSIGHT OR CONTROL OVER THE COACHING PROVIDED BY COACHES TO CLIENTS. COACHES ARE NOT EMPLOYEES, REPRESENTATIVES, OR AGENTS OF LELAND. IF YOU ARE A COACH, COACHES MUST NOT REPRESENT, OR IN ANY WAY INDICATE, SUGGEST, OR IMPLY, THAT THEY ARE CREDENTIALED, ENDORSED, RECOMMENDED, OR EVALUATED BY US IN ANY MANNER. LELAND IS NOT A PROVIDER OF ANY COACHING, AND COACHES ARE SOLELY RESPONSIBLE FOR ALL COACHING PROVIDED TO CLIENTS THROUGH, OR FACILITATED BY, THE SERVICE AND FOR THEIR INTERACTIONS AND RELATIONSHIPS WITH CLIENTS. IF YOU ARE A COACH, COACHES ARE SOLELY RESPONSIBLE FOR ENSURING THAT THE COACHING THEY PROVIDE THROUGH OR IN CONNECTION WITH THE SERVICE AT ALL TIMES MEETS APPLICABLE STANDARDS OF CARE AND THAT YOU WILL EXERCISE YOUR BEST PROFESSIONAL JUDGMENT IN PROVIDING ANY SUCH COACHING. IF YOU ARE A CLIENT, FOLLOWING ANY RECOMMENDATIONS, SUGGESTIONS, FEEDBACK, GUIDANCE, ADVICE, OR OTHER INFORMATION PROVIDED BY A COACH THROUGH COACHING IS SOLELY AT CLIENTS’ OWN RISK AND DISCRETION, AND CLIENTS ARE SOLELY LIABLE AND RESPONSIBLE FOR ANY RELIANCE PLACED THEREON AND FOR EXERCISING THEIR BEST DISCRETION IN DETERMINING WHETHER ANY SUCH INFORMATION IS PROPER, ADVISABLE, NECESSARY, USEFUL, BENEFICIAL, OR OTHERWISE APPROPRIATE FOR CLIENTS.
- 1.2Agreements with Coaches. Any terms and conditions of any agreement with a Coach relating to the Coaching, including the fees to be paid by Clients for Coaching and the nature of the Coaching to be provided, is solely between the Coach and the Client. Coaches may require that a Client agree to terms and conditions of a separate agreement (including those relating to the Coach’s refund and cancellation policy) before providing Coaching to Clients, and any such separate terms and conditions must be mutually agreed. You acknowledge and agree that (i) Leland is not a party to any such agreement between Coaches and Clients, and (ii) any dispute between Clients and Coaches is solely between Clients and Coaches.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations; (d) you have the full right, power and authority to enter into these Terms, to grant the rights and licenses set forth herein, and to perform your obligations under these Terms; and (e) your use of the Service, your agreement to these Terms, and your performance of your obligations under these Terms does not, and will not, conflict with, result in a breach of, or otherwise be inconsistent with any agreement with a third party that you are bound by. If you are not at least 18 years old, you represent and warrant that you have your parent’s or guardian’s permission to use the Service and to agree to these Terms. If you are a parent or legal guardian of a user under the age of 18, by allowing such underage user to use the Service, you are subject to the terms and conditions of these Terms and are solely responsible for their activity on the Service.
3. Accounts and Registration
- 3.1General. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at email@example.com.
4. General Payment Terms
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms. Leland or its third-party payment processor will bill installment payments for the Subscription Fee and, if you are a Client, the Coaching Fee (as such terms are defined below) to the payment method associated with your account or that you otherwise provide to us.
- 4.1Price. Other than the Coaching Fee, Leland reserves the right to determine pricing for the Service. Leland will make reasonable efforts to keep pricing information (other than the Coaching Fee) published on the Service up to date. Leland may change the fees for any feature of the Service, including additional fees or charges, if Leland gives you advance notice of changes before they apply. Leland, at its sole discretion, may make promotional offers with different features and different pricing to any of Leland’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- 4.2Coaching Fee. The fees charged by a Coach for Coaching (“Coaching Fee”) is determined at the Coach’s sole discretion and will be in U.S. Dollars.
- 4.3Leland Fee. We will be entitled to a certain percentage of the Coaching Fee paid by a Client to a Coach (“Leland Fee”), we will notify the Coach of such percentage prior to the Leland Fee being automatically deducted from the Client’s payment of such Coaching Fees and the remaining balance being remitted to the Coach. If you are a Coach, Coaches will not be entitled to any refund of the Leland Fee and the Leland Fee is non-refundable.
- 4.4Refunds. Please read our Refund Policy at www.joinleland.com/legal/refund-policy carefully for information relating to how we process and determine whether to provide refunds for the Services or the Coaching Fee. We may update our Refund Policy from time to time pursuant to the same procedure set forth below for modifying these Terms.
- 4.5Authorization. Each Client hereby authorize Leland to charge all sums for purchases of Coaching, including all applicable taxes, to the payment method specified in the Client’s account. If a Client pays any fees with a credit card, then Leland may seek pre-authorization of such credit card account prior to the Client’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase.
- 4.6Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges for Coaching or otherwise (“Subscription Service”). The “Subscription Billing Date” is the date when you first purchase a subscription to the Subscription Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Leland or its third-party payment processors to regularly charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on subscription fees (“Subscription Fee”), please see the Subscription Fee pricing information published on the Service. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. If you are paying for pre-purchased Coaching amounts in installments, those amounts are not considered a Subscription Fee. You must cancel your Subscription Service at least 7 days before it renews in order to avoid billing of the next periodic Subscription Fee to your account. You may cancel the Subscription Service by cancelling the Subscription Service through the Service or by contacting us at firstname.lastname@example.org. YOUR CANCELLATION MUST BE RECEIVED AT LEAST 7 DAYS BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
- 4.7Delinquent Accounts. Leland may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service or the Coaching Fees, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee or any amounts due in connection with the Service are due, then Leland reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
- 4.8Failure to Complete Coaching; Forfeiture of Coaching Fee. Each Coaching engagement includes an expiration term. Within the Service, Coaches have the ability to, and are responsible for, designating an expiration term in accordance with our Refund Policy referred to above (and as may be updated by us from time to time), extending an expiration term (if requested and agreed to by the Coach), and marking a Coaching engagement complete. If a Coach fails to mark a Coaching engagement complete and the expiration term has been expired for six (6) months, the Coach forfeits the Coaching Fee.
- 5.1Limited License. Subject to your complete and ongoing compliance with these Terms, Leland grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service.
- 5.2License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
- 5.3Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Leland an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6. Ownership; Proprietary Rights
The Service is owned and operated by Leland. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Leland (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Leland or its third-party licensors. Except as expressly authorized by Leland, you may not make use of the Materials. There are no implied licenses in these Terms and Leland reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
- 7.2Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
- 8.1User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
- 8.2Limited License Grant to Leland. By Posting User Content to or via the Service, you grant Leland a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Leland’s exercise of the license set forth in this Section.
- 8.3Collaborative Content. If you are a Coach, to the extent that any User Content qualifies or is otherwise recognized as a work of joint authorship under the U.S. Copyright Act of 1976 (or its international equivalents) (“Collaborative Content”): (1) you and Leland (each, as a “Collaborator”) will have no duty to account to the other Collaborator for any profits, royalties, revenue, proceeds, or other forms of consideration earned or otherwise obtained by a Collaborator from a Collaborator’s use or other exploitation of such Collaborative Content; and (2) each Collaborator waives its right to require attribution for any such Collaborative Content. Without limiting Leland’s exercise of the rights granted by you, as a Coach, to User Content as set forth in Section 8.2, Leland will remove any attributions to you and any other references identifying you as a co-author of such Collaborative Content upon your written request.
- 8.4You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Leland disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Leland and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Leland, the Service, and these Terms;
- your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Leland to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- 8.5User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Leland may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Leland with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Leland does not permit infringing activities on the Service.
- 8.7AI Training & Development. You acknowledge and agree that Leland may use, reproduce, and analyze your Submitted Content for the purpose of training, refining, and developing artificial intelligence prompts, models, algorithms, and related technologies (“AI Technologies”). This includes, but is not limited to, machine learning, natural language processing, and data analytics.
Anonymization and Aggregation: Leland may anonymize and aggregate your Submitted Content with other content for the purposes of AI training. Once anonymized, the content will not be personally identifiable.
Retention for AI Purposes: Notwithstanding any other provision in this Agreement, Leland may retain copies of your Submitted Content for the sole purpose of ongoing AI training, development, and research, even after the content has been removed from public view or deleted from our Services.
No Compensation for AI Training: You understand and agree that your Submitted Content’s use for AI training and development purposes will not entitle you to any compensation, whether the AI Technologies are commercialized or not.
Intellectual Property: Any AI Technologies, insights, or developments that arise from or are related to the use of your Submitted Content will be the exclusive property of Leland. You waive any claims to ownership or rights to these AI Technologies, insights, or developments.
Transparency and Ethics: Leland commits to using your Submitted Content for AI training and development in a manner that is ethical, transparent, and in compliance with applicable laws and regulations. Leland will not use the Submitted Content to train AI Technologies for purposes that promote discrimination, harm, or violate the rights of individuals or groups.
Feedback on AI Technologies: Should you interact with any AI Technologies developed using your Submitted Content, you grant Leland the right to collect and use feedback regarding your interactions for the purpose of further refining and improving the AI Technologies.
- 9.1Text Messaging & Phone Calls. You agree that Leland and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM LELAND, YOU CAN EMAIL email@example.com OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM LELAND, YOU CAN EMAIL firstname.lastname@example.org OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
- 9.2Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
- 10.1use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- 10.2harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
- 10.3violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
- 10.4access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Leland;
- 10.5interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- 10.6interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- 10.7perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
- 10.8sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials;
- 10.9if you are a Client, use or disclose any non-public, proprietary information, “know how,” or material (a) disclosed or made available by, or otherwise received from, a Coach, or (b) otherwise learned by, you (directly or indirectly) through Coaching, in each case, in a manner that the Coach has not authorized in advance;
- 10.10if you are a Coach, use or disclose any non-public, personal information or material (a) disclosed or made available by, or otherwise received from, a Client, or (b) otherwise learned by, you (directly or indirectly) through Coaching, in each case, in a manner that the Client has not authorized in advance;
- 10.11if you are a Coach, perform any act or omission that, in any way, is intended to circumvent, avoid, or reduce the payment of the Leland Fee;
- 10.12if you are a Coach, directly contact any Client or third party that you are introduced to through the Service or solicit, induce, or encourage any of them to directly engage or transact business with you in your capacity as a Coach, in each case, through means other than through the Service (except at such Client’s or third party’s request); or
- 10.13attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Intellectual Property Rights Protection
- 11.1Respect of Third Party Rights. Leland respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
- 11.2DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Attn: Legal Department (IP Notification)
2701 N Thanksgiving Way #100, Lehi, Utah 84043
- 11.3Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
- 11.4Repeat Infringers. Leland’s policy is to: (a) remove or disable access to material that Leland believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Leland will terminate the accounts of users that are determined by Leland to be repeat infringers. Leland reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
- 11.5Counter Notification. If you receive a notification from Leland that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Leland with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Leland’s Designated Agent through one of the methods identified in Section 11.2, and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Leland may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of that person.
- 11.6Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Leland in response to a Notification of Claimed Infringement, then Leland will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Leland will replace the removed User Content or cease disabling access to it in 10 business days, and Leland will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Leland’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Leland’s system or network.
- 11.7False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Leland] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Leland reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service
- 13.1Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
- 13.2Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Leland may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by deleting your account on the Service or contacting customer service at email@example.com. If we terminate these Terms or your account for convenience, we will provide you with a pro-rata refund of any prepaid Subscription Fees paid by you for the terminated portion of the Subscription Period.
- 13.3Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Leland any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8.2, 13.3, 14, 15, 16, 17, and 18 will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
- 13.4Modification of the Service. Leland reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Leland will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service (provided that, if any such change materially limits or reduces the Subscription Service purchased by you, you may terminate the Subscription Service and request a refund for any prepaid Subscription Fees paid by you by contacting us at firstname.lastname@example.org, which will be pro-rated based on the terminated portion of the Subscription Period). You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Leland, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Leland Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties by Leland
- 15.1THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. LELAND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LELAND DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND LELAND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- 15.2NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE LELAND ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE LELAND ENTITIES 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 SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
- 15.3THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Leland does not disclaim any warranty or other right that Leland is prohibited from disclaiming under applicable law.
16. Limitation of Liability
- 16.1TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE LELAND ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY LELAND ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- 16.2EXCEPT AS PROVIDED IN SECTIONS 17.5 AND 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE LELAND ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO LELAND FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
- 16.3EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. 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 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
- 17.1Generally. Except as described in Section 17.2 and 17.3, you and Leland agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims 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. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Leland ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 17.2Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- 17.3Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Leland Inc., Attention: Legal Department — Arbitration Opt-Out, 2701 N Thanksgiving Way #100, Lehi, Utah 84043 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Leland receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- 17.4Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 Leland.
- 17.5Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Leland’s address for Notice is: Leland Inc., 2701 N Thanksgiving Way #100, Lehi, Utah 84043. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“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 30 days after the Notice of Arbitration is received, you or Leland may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Leland will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the 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 and the other party may seek reimbursement for any fees paid to AAA.
- 17.6Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Leland must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. 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.
- 17.7Arbitration Relief. Except as provided in Section 17.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Leland before an arbitrator was selected, Leland will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
- 17.8No Class Actions. YOU AND LELAND 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. Further, unless both you and Leland 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.
- 17.9Modifications to this Arbitration Provision. If Leland makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Leland’s address for Notice of Arbitration, in which case your account with Leland will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- 17.10Enforceability. If Section 17.8 or the entirety of this Section 17 is found to be unenforceable, or if Leland receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
- 18.2Governing Law. These Terms are governed by the laws of the State of Utah without regard to conflict of law principles. You and Leland submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Utah County, Utah for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Utah, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- 18.4Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- 18.6Contact Information. The Service is offered by Leland Inc., located at 2701 N Thanksgiving Way #100, Lehi, Utah 84043. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- 18.7Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- 18.8No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- 18.9International Use. The Service is intended for visitors 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.
19. Notice Regarding Apple
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Leland only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.