Date of Last Revision: May 4, 2011
Table of Contents:
- Proprietary Rights
- Consent to Electronic Communications/iChange Mobile Services
- User Content and Conduct
- User Disputes
- Copyright Complaints
- Herbalife Independent Distributors
- Other Third Party Websites and Content
- Medical Disclaimer
- iChange Platform
- iChange Terms of Sale
- Disclaimers of Liability
- Limitation of Liability
- Governing Law, Venue and Jurisdiction
- Definitions and Construction
- Contact Us
The iChange Services are intended solely for users eighteen (18) years of age and older. You represent and warrant either that you are eighteen (18) years of age or older. Certain iChange Services may be subject in whole or in part to heightened age and/or other eligibility requirements.
Certain iChange Services may require registration or may otherwise ask you to provide information to participate in certain features or to access certain content. The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain iChange Services. You agree that you will not provide any false personal information to an iChange Service, or create an account for anyone other than yourself without permission. You will also not create more than one personal profile, and if you select a username for your account, we reserve the right to remove or reclaim it if we believe appropriate (such as if a trademark owner complains about a username). If you register with any iChange Service, you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of any applicable iChange Service. You accept responsibility for all activities that occur under your account, email or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights. iChange may, in its sole discretion, and at any time, with or without notice, terminate your password and membership, for any reason or no reason at all. If we disable your account, you agree that you will not create another one without our permission.
You agree not to interfere (or permit the use of your membership by a third party to interfere) with the normal processes or use of the iChange Services by other members, including without limitation by attempting to access administrative areas of the iChange Services.
The iChange Services and all of the content they contain, or may in the future contain, including but not limited to text, video, pictures, graphics, designs, information, applications, software, music, audio files and other electronic files, articles, directories, guides, photographs as well as the trademarks, trade names, trade dress, service marks, copyrights, logos, domain names, code, business methods, patents and/or any other form of intellectual property (collectively, the "Material") that relates to the iChange Services (other than and except for "User Content", as defined herein), are owned or licensed by iChange or other third parties and are protected from any unauthorized use, copying and dissemination by copyright, trademark, and other intellectual property and non-intellectual property laws and international treaties.
Without limiting the generality of the foregoing, ICHANGE and other graphics, logos, designs, page headers, buttons, icons, scripts and service names of the iChange Services are registered trademarks, trademarks or trade dress of iChange in the U.S. and/or other countries.
Unless expressly permitted in writing by iChange, you shall not capture, reproduce, perform, transfer, sell, license, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit in whole or in part any of the Material. Nothing contained in this Agreement or on any iChange Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Material in any manner without the prior written consent of iChange or such third party that may own the Material or intellectual property displayed on the applicable iChange Service. UNAUTHORIZED USE, COPYING, REPRODUCTION, MODIFICATION, PUBLICATION, REPUBLICATION, UPLOADING, FRAMING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING OR ANY OTHER MISUSE OF ANY OF THE MATERIAL IS STRICTLY PROHIBITED. Any use of the Material other than as permitted by this Agreement will violate this Agreement and may infringe upon our rights or the rights of the third party that owns the affected Material. You agree to report any violation of this Agreement by others that you become aware of. You are advised that iChange will aggressively enforce its rights to the fullest extent of the law. iChange may add, change, discontinue, remove or suspend any of the Material at any time, without notice and without liability.
Consent to Electronic Communications/iChange Mobile Services
By registering with the iChange Services, you understand that we may send you communications or data from iChange regarding the iChange Services, via electronic mail, SMS, MMS, instant messaging, electronic chat, or other electronic delivery, including but not limited to (i) tasks, notices, assignments, videos, record keeping, progress tracking, audio files, suggestions, encouragement, and (ii) promotional information regarding and the iChange Services, (iii) updates, and (iv) notices about your use of the iChange Services. By registering with iChange you consent to such communications and understand that standard text and data charges may apply.
In addition, some of the iChange Services may include certain services that are available via your mobile phone, including (i) the ability to upload data and content to the iChange Services via your mobile phone (Mobile Uploads), (ii) the ability to receive and reply to iChange Service messages, notices, task, and prompts (iii) the ability to browse the iChange Services from your mobile phone (Mobile Web), and (iv) the ability to access features of certain iChange Services through a mobile application you may have downloaded and installed on your mobile phone or tablet (Mobile Client) (collectively the "Mobile Services"). We do not charge for these Mobile Services. However, your carrier's normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. It is your responsibility to check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding iChange and other entities by SMS, MMS, text message or other electronic means to your mobile device.
User Content and Conduct
Forums, bulletin boards, chat rooms or other interactive areas that are or may be offered as part of the iChange Services ("User Forums") give users a forum to express their opinions and share their ideas and information and otherwise communicate with each other about their experiences. The individual who posts messages, content or other information in the User Forums (collectively, "User Content") is responsible for the reliability, accuracy, and truthfulness of such content, and iChange has no control over the same. Additionally, iChange has no control over whether any such User Content is of a nature that users will find offensive, distasteful or otherwise unacceptable and expressly disclaims any responsibility for such material.
iChange does not endorse the User Content in the User Forums and specifically disclaims any responsibility or liability to any person or entity (including, without limitation, persons who may use or rely on such material) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character based upon or resulting from any User Content provided through a User Forum. Without limiting the generality of the foregoing, people who give product or business opportunity testimonials on the iChange Services may reflect atypical experiences or results. The average results and your own results and experience with any advertised product or service may vary.
iChange does not and cannot review every message posted by users in the User Forums, and is not responsible for the content of these messages or the views or opinions expressed by the users of the User Forums. Information disclosed in the User Forums is revealed to the public by design. iChange reserves the right, but not the obligation, to delete, move or edit User Content, in whole or in part for any reason in iChange's sole discretion. In addition, iChange may delete, move, edit or disclose User Content when it is required to do so by law or in a good faith belief that such action is necessary to protect and defend the rights and property of iChange or to protect the safety of our users or the public. In no event does iChange assume any obligation to monitor the User Forums or remove any specific material.
You understand that the uploading to and/or posting of any User Content in any User Forum shall not be subject to any obligation of confidence on the part of iChange, and iChange shall not be liable for any use or disclosure of any User Content. In consideration for your use of the User Forums and functionality, you agree to comply with the "Community Guidelines" set forth below. Without limiting iChange's other rights and remedies, individuals who violate the following Community Guidelines may, at iChange's sole discretion, be banned from using the User Forums and/or the iChange Services entirely. The Community Guidelines consist of your commitment to not do any of the following:
- register for more than one User account;
- misrepresent yourself, your age or your affiliation with any person or entity, impersonate any person or entity, or make false or misleading statements;
- use the iChange Services in any manner that could damage, impair, disable, overburden, or harm the iChange Services or circumvent the intended functionality of the iChange Services;
- collect contact identifying information of users of the iChange Services by electronic or other means without authorization from the person(s) affected;
- upload, post, transmit, send, share, store, distribute or otherwise make available on any iChange Service any information or content that we deem to be harmful, hateful, discriminatory, inflammatory, intimidating, abusive, threatening, unlawful, defamatory, libelous disparaging (including disparaging of iChange), harassing, obscene, fraudulent, vulgar, or otherwise objectionable;
- upload, post, transmit, send, share, store, distribute or otherwise make available on the iChange Services any private or sensitive information or content about any third party, including, addresses, phone numbers, e-mail addresses, Social Security numbers and credit card numbers;
- upload, post, transmit, send, share, store, distribute, or otherwise make available any information or content that is unlawful or infringes, violates or misappropriates any patent, trademark, trade identity right, trade secret, publicity right, privacy right, copyright or any other intellectual property or any other rights of any third party;
- upload, post, transmit, send, share, store, distribute, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, or any other form of unauthorized solicitation;
- solicit personal information, passwords or personally identifying information for unlawful purposes;
- upload, post, transmit, send, share, store, distribute, or otherwise make available any information or content that would constitute, encourage or provide instructions for a criminal offense, violate any applicable law, violate or infringe upon the rights of any party, or otherwise expose the iChange Services or its users to harm or legal liability; and/or
- upload, post, transmit, send, share, store, distribute, or otherwise make available any viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or other electronic or telecommunications equipment.
By posting or uploading User Content to any User Forum or submitting any other User Content to iChange, you automatically grant (or warrant that the owner of such rights has expressly granted) iChange a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to reproduce, modify, adapt, publish, publicly perform, translate, sub-license, create derivative works from, exploit, distribute and otherwise use such materials or incorporate such User Content in or in connection with the iChange Services or by or in any other media or technology now known hereafter devised throughout the universe in perpetuity. In addition, you represent and warrant that any and all User Content you upload, post, transmit, send, share, store, distribute, or otherwise make available on the iChange Services complies with each of the foregoing Community Guidelines.
You agree to indemnify iChange and its parent, subsidiary and affiliated companies and each of their respective present and former officers, directors and employees, from and against any and all claims, damages, liabilities, costs and expenses, including but not limited to reasonable attorney's fees and expenses, arising from or relating to any breach of your representations, warranties, covenants or obligations hereunder. iChange reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the written consent of iChange. You will cooperate as fully and as reasonably required in iChange's defense of any claim.
You are solely responsible for your interactions with other iChange users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
iChange respects the intellectual property of others and we ask our users to do the same. In accordance with the Digital Millennium Copyright Act, iChange has designated a Copyright Agent to receive notice of claims of copyright infringement on the iChange Services. iChange's Copyright Agent may be reached at:
c/o Herbalife International of America, Inc.
800 W. Olympic Boulevard, Suite 406
Los Angeles, California 90015
If you believe that any User Content infringes the copyright in a work that is owned or controlled by you or if you believe that your work has been copied in a way that constitutes copyright infringement, please promptly provide iChange's Copyright Agent the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
- The exact URL or a description reasonably sufficient to permit iChange to locate where the alleged infringing material is located on the iChange Services;
- Your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are either the copyright owner or authorized to act on the copyright owner's behalf.
iChange is pleased to hear from its users and welcomes your comments regarding iChange's services and products. Nevertheless, iChange's long-standing company policy does not allow it to accept or consider creative ideas, suggestions, or materials other than those it has specifically requested (see below). While we value your feedback on our services and products, we request that you be specific in your comments on those services and products, and that you not submit any creative ideas, suggestions, or materials. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by iChange's or its affiliates' professional staff might seem to others to be similar to their own creative work. Accordingly, we ask that you do not send us any original creative materials such as show designs, photographs, drawings, or original artwork that you expect to be compensated for or that you would like to keep private.
If you send or post certain specific submissions at our request (e.g., via message boards or in connection with contests) or if you send us creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (each, a "Submission" and collectively, the "Submissions") despite our request that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. For purposes of this Paragraph, all User Content shall be deemed included in the definition of Submissions. None of the Submissions shall be subject to any obligation of confidence on the part of iChange, and iChange shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by iChange without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. iChange shall have and is hereby irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, exploit, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit. By submitting a Submission to the iChange Services or iChange, you represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. Submissions to the iChange Services and/or iChange will not be acknowledged or returned. You agree and understand that iChange is not obligated to use any Submission you make to the iChange Services or iChange and you have no right to compel such use. You hereby acknowledge and agree that your relationship with iChange is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to iChange does not place iChange in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that iChange has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by iChange's own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in structure, purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of iChange's use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of a iChange's actual or alleged exploitation or use of any material you submit to the iChange Services and/or iChange, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the exploitation or other use of any platform, product or service based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
From time to time, the iChange Services may offer sweepstakes, contests or other promotions that require you to send material or information about yourself. Please note that sweepstakes, contests or promotions offered via the iChange Services may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and supplemental disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to comply with abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.
Herbalife Independent Distributors
Some iChange Services may reference Herbalife products and services. Herbalife products and services are sold through Herbalife's network of Independent Distributors. You must be or contact an Herbalife Independent Distributor in order to purchase Herbalife products and services. To purchase Herbalife goods or services, you do not have to become an Independent Distributor. If, however, you are interested in starting your own home-based business as an Herbalife Independent Distributor, please go to www.herbalife.com for more information.
Herbalife Independent Distributors may have their own Internet web sites (each, a "Distributor Website"). It is the sole responsibility of each Independent Distributor to ensure that its Distributor Website content is accurate and that it fully complies with all Herbalife rules, policies and procedures, including without limitation, Herbalife's Rules of Conduct & Distributor Policies, United States Supplemental Rules, and all applicable federal and state laws, rules and regulations. iChange is not responsible for the content or performance of any portion of the Distributor Websites, including any Distributor Websites that link to any iChange Services or to which the iChange Services may be linked and iChange EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR, OR LIABILITY TO, ANY PERSON OR ENTITY ARISING OUT OF OR RELATED IN ANY WAY TO DISTRIBUTOR WEBSITES.
Herbalife Distributors who use the iChange Services understand that they continue to be bound by all of their existing agreements with Herbalife (including the Agreement of Distributorship), and that they must continue to comply with such agreements and with all of Herbalife's rules, regulations, policies and procedures as amended from time to time.
Other Third Party Websites and Content
The iChange Services may contain links to third party web sites or resources, which may or may not be obvious ("Third Party Sites"), as well as software, text, graphics, articles, photographs, pictures, designs, sound, video, music, information, software applications, and other content originating from third parties (the "Third Party Applications, Software or Content"). Our provision of links to Third Party Sites or Third Party Applications, Software or Content is not an endorsement of any information, product or service that is offered on or reached through such Third Party Site or Third Party Application, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any Third Party Sites accessed through the iChange Services or any Third Party Applications, Software or Content posted on, available through or installed from the iChange Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. If you decide to leave the iChange Services and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern.
Some parts of the iChange Services are tied to weight loss and nutrition. The iChange Services are for personalized nutrition and diet information purposes only, and in no way is any of the content to be construed as medical advice or instruction. You should not rely on this information as a substitute for professional medical advice, diagnosis, or treatment. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THIS WEB SITE.
You should consult your physician or other health care professional before starting any diet or nutrition program to determine if it is right for your needs. This is particularly true if you or your family have a history of serious medical conditions. Specific conditions for which you should receive medical advice before participating in a diet or nutrition program include: high blood pressure or heart disease; chest pain; high cholesterol; obesity; a history of smoking or alcohol use; a bone or joint problem; faintness or dizziness; or any problem that could be made worse by change in diet or physical activity. Do not participate in any program if your physician or health care provider advises against it. Seek the advice of your physician before taking supplements of any kind.
iChange does not endorse or make any representation about the efficacy, appropriateness or suitability of any specific products, procedures, treatments, services, or other material or information that may be contained on or available through the iChange Services. ICHANGE IS NOT RESPONSIBLE NOR LIABLE AND EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR, OR LIABILITY TO, ANY PERSON OR ENTITY ARISING OUT OF OR RELATED TO IN ANY WAY ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU OBTAIN THROUGH THE ICHANGE SERVICES.
From time to time, iChange may enable third-party developers ("Platform Partners") to create plug-ins and other applications ("Applications") that interact with the iChange Services by, among other things, retrieving data and other information that has been made available on the iChange Services. The "iChange Platform" refers to the set of APIs and services provided to Platform Partners to facilitate their creations. Platform Partners may use the iChange Platform and create Applications only in accordance with the terms and conditions set forth in an agreement entered into between iChange and the Platform Partner ("Partner Terms"). We may from time to time enter into separate agreements with certain third party Platform Partners that contain different or additional terms. At iChange's sole discretion, the standard Partner Terms are subject to change without prior notice at any time. THE ICHANGE PLATFORM IS PROVIDED TO PLATFORM PARTNERS AND OUR USERS "AS IS" AND AT YOUR OWN RISK, and iChange expressly disclaims any and all responsibility for or liability to, any person or entity arising out of or related in any way to any Platform Partner Applications. ALL USE OR PLATFORM PARTNER APPLICATIONS IS AT YOUR OWN RISK.
If you, your friends or members of your network use any Applications, such Applications may access and share certain information about you. Platform Developers are required to agree to restrictions on access, storage and use of such information. However, while we seek to restrict possible misuse of such information by such Platform Partners, we do not guarantee that all Platform Partners will abide by such restrictions.
iChange Terms of Sale
Certain products and services may from time to time be made available to you through the iChange Services. The products and services that are offered for sale by iChange or its corporate affiliates are each referred to as an "Offering". Offerings are different from Listings by third parties. Terms related to a specific product or service will accompany the Offering. In addition, these Terms of Sale apply to all Offerings. To make a purchase on iChange, you must be a registered iChange user. iChange sells its products only to those users who can legally make purchases with a credit card. You must be eighteen years of age to make a purchase on the iChange Services. iChange reserves the right to refuse or cancel orders or terminate accounts, at any time in its sole discretion. We may accept various credit cards at any different times. However, by submitting an order through iChange, you authorize iChange, or its designated payment processor, to charge the account you specify for the purchase amount using your credit card if we accept it. All payments are to be made in United States Dollars. PLEASE NOTE THAT SOME PRODUCTS LISTED ON THE SERVICE REPRESENT LINKS TO THIRD PARTY E-COMMERCE WEB SITES, AND ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE THIRD PARTY SERVICE.
Disclaimers of Liability
The iChange Services may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons. iChange assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications. iChange is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or in connection with any iChange Service or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Service, including any Mobile Client software.
YOU UNDERSTAND AND AGREE THAT THE ICHANGE SERVICES AND ALL MATERIAL AND INTELLECTUAL PROPERTY CONTAINED ON THE ICHANGE SERVICES ARE PROVIDED "AS-IS" "AS AVAILABLE" "WITH ALL FAULTS" AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER IMPLIED OR EXPRESS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. ICHANGE DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE ICHANGE SERVICES OR PRODUCTS SOLD THROUGH THE ICHANGE SERVICES. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE ICHANGE SERVICES SOFTWARE, CONTENT OR MATERIALS ARE CURRENT OR ERROR-FREE COMPLETE, ACCURATE, RELIABLE, OR THAT THE ICHANGE SERVICES OR THEIR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
YOU SHOULD EXERCISE CAUTION IN THE DOWNLOADING AND USE OF ANY SOFTWARE, CONTENT OR MATERIALS OFFERED AS PART OF THE ICHANGE SERVICES AND USE EFFECTIVE SOFTWARE TO DETECT AND DISINFECT VIRUSES. WITHOUT IN ANY WAY LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU OBTAIN CONTENT BY DOWNLOAD OR OTHERWISE, AND MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE ICHANGE SERVICES AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
Limitation of Liability
YOU AGREE THAT ICHANGE AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE "RELEASED PARTIES") ARE NOT LIABLE TO YOU OR ANY THIRD PERSON FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE ICHANGE SERVICES, THE MATERIAL, THE USER FORUMS, ANY LISTING OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE ICHANGE SERVICES, EVEN IF THE ICHANGE IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGILIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE ICHANGE SERVICES (COLLECTIVELY, THE "RELEASED MATTERS"). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ICHANGE'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ICHANGE FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL ICHANGE'S LIABILITY TO YOU EXCEED $1000. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, AND/OR THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MIGHT NOT APPLY TO YOU.
BY ACCESSING THE ICHANGE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
You hereby waive any and all rights you have or may have under California Civil Code Section 1542, and/or any similar provision of law or successor statute to it, with respect to the Released Matters. In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement. In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.
iChange makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the iChange Services and/or the Material. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by iChange. Views and opinions of users of the iChange Services do not necessarily state or reflect those of iChange. Users are responsible for seeking the advice of professionals, as appropriate, regarding the information, opinions, advice or content available as part of the iChange Services.
The Internet may be subject to breaches of security. iChange is not responsible for any resulting damage to any user's computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that email submissions over the Internet may not be secure, and you should consider this before submitting any information to anyone over the internet. iChange makes no representation or warranty whatsoever regarding the suitability, functionality, availability or operation of the iChange Services.
iChange may delete your profile and any User Content or other information that you have posted on the iChange Services and/or prohibit you from using or accessing the iChanges Services, in whole or in part, for ANY reason, or no reason at all, at any time in its sole discretion, with or without notice. iChange may terminate your iChange Services membership at any time with or without cause. iChange will determine your compliance with this Agreement in its sole discretion and its decision shall be final and binding and not subject to challenge or appeal. Any violation of this Agreement may result in restrictions on your access to all or part of the iChange Services and may be referred to law enforcement authorities. No changes to or waiver of any part of this Agreement shall be of any force or effect unless formally posted or made in writing and signed by a duly authorized officer of iChange. iChange reserves the right to modify or discontinue the iChange Services, or any portion thereof, without notice. Upon termination of your membership or access to the iChange Services, or upon demand by iChange, you must destroy all materials obtained from this iChange Services and all related documentation and all copies and installations thereof. You are advised that iChange will aggressively enforce its rights to the fullest extent of the law.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. The section titles in this Agreement are for your convenience only and do not have any legal or contractual effect.
Governing Law, Venue and Jurisdiction
By visiting or using the iChange Services, you agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and the iChange or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of California.
iChange operates the iChange Services in the United States. Information contained on the iChange Services may not be appropriate or available for use in other locations, and access to the iChange Services from territories where the content of the iChange Services may be illegal is prohibited. If you choose to access the iChange Services from locations outside of the United States, you are responsible for compliance with local laws if, and to the extent that, such local laws are applicable.
All software used on the iChange Services is subject to U.S. export controls. No such software may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Burma, Democratic Republic of the Congo, Ivory Coast, Iraq, Libya, North Korea, Iran, Syria, Sudan, Venezuela or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any such software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
We reserve the right, in our sole discretion, to limit the availability of the iChange Services to any person, geographic area or jurisdiction at any time.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the iChange will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. The arbitration shall be a confidential proceeding, closed to the general public. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator's award is based. Each party hereby waives any and all rights and benefits which it might otherwise have or be entitled to under federal law or the laws of California or any other state to litigate any such dispute in court, it being the intention of the parties to arbitrate all such disputes. Each party expressly waives any right to a jury. The arbitrator's decision shall be controlled by this Agreement and any other agreements the applicable user may have entered into with iChange in connection with the applicable iChange Service. In no event shall you be entitled to injunctive or other equitable relief.
Definitions and Constructions
Unless otherwise specified, the terms "includes", "including", "e.g.,", "for example", and other similar terms are deemed to include the term "without limitation" immediately thereafter. Terms used in these Terms with the initial letter(s) capitalized will have the meaning attributed to them in these Terms.
This Agreement and the agreements and policies expressly referenced herein constitute the entire agreement between you and iChange pertaining to the subject matter hereof and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.
If you have any questions, comments or concerns about the iChange Services or this Agreement, you may contact us at email@example.com.
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