BRACES ACADEMY CLIENT TERMS OF SERVICE

1. Your Acceptance

By accessing, using and visiting the Braces Academy™ ("Braces Academy") Website or any Braces Academy data feeds and services provided to you on, from, or through the Braces Academy Website (collectively the "Service") you signify your agreement to these terms and conditions (the "Terms of Service"). If you do not agree to the Terms of Service, please do not use the Service. Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up- to-date version on the Braces Academy website. Braces Academy may, in its sole discretion, modify or revise these Terms of Service at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.

2. Other Defined Terms

"Account" means the entirety of Your contractual rights and obligations under the Braces Academy Service Agreement, Subscription Term Agreement and the Terms of Service (referred to herein as the “Agreement”);

"Content" means any works of authorship, creative works, graphics, images, textures, photos, logos, video, audio, text, and interactive features.

"Intellectual Property Rights" means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights and other intellectual property rights or proprietary rights recognized by law.

"Braces Academy Content" is the Content provided to You in connection with the Service, including, but not limited to Content we created or licensed from third parties subject to the license set forth herein.

“ Braces Academy Marks” includes the Intellectual Property Rights in and to the Service, including but not limited to the Braces Academy Content, the Servers, and the Websites related thereto, applicable software, and in and to our trademarks, service marks, trade names, logos, domain names, taglines and trade dress.

"Braces Academy Software" is the software provided to You by Braces Academy and/or its suppliers under license in connection with the Service, including but not limited to the software for accessing the Service and any other communication software, whether facilitating text-based, chat-based, voice, audio or other communication, within or outside of the Service, and any application program interfaces (the "APIs") for use with the Service.

"Servers" are the online environments that support the Service, including without limitation: the server computation, electronic data storage, software access, messaging and protocols that simulate the Service.

“ Subscription Term” means the subscription to the Service for the specified period of time agreed to in this Agreement;

"User Content" means any Content that a user of the Service has uploaded, published, or submitted to or through the Servers, Websites or other areas of the Service.

"Websites" are the websites and services available from the domain and subdomains of Braces Academy and any related entity or successor domains from which Braces Academy may offer the Service.

  "You" means You, or authorized persons within your business organization, and is used in the form “Your” where applicable.

"Your Patients" means the persons to whom you are providing dental, orthodontic or oral hygiene services and that you have registered with Braces Academy through the Website and have obtained a release, compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)(the “HIPAA Release”) that Your Patient has agreed to the release of their private and dental, orthodontic or oral hygiene information to Braces Academy for its use in providing You the Service discussed in this Agreement.

3. Online Service

3.1 Braces Academy is providing to You and to Your Patients only general, dental, orthodontic and oral hygiene educational information. Braces Academy is not providing specific medical or dental advice to You or for any particular user or patient. Furthermore, you agree that any educational digital media that you submit as User Content is only to provide general, dental, orthodontic and oral hygiene educational information and is not providing specific medical or dental advice to any particular user or patient.

3.2 Braces Academy may display, maintain, or otherwise make use of, any of Your User Content at its discretion. Your User Content is not confidential and if displayed on the Website, may be viewed by other Users of the Website. Braces Academy may, in its sole discretion, modify, delete, or otherwise make use of User Content without notice or any liability to You or any third party. Braces Academy reserves the right to treat User Content on the Service as Content stored at the direction of Users for which Braces Academy will not exercise control except to block or remove Content that comes to Braces Academy’s attention and is offensive, obscene, abusive, illegal or otherwise objectionable to Braces Academy, or to enforce the rights of third parties or the Content restrictions set forth below ( in Section 6 ), when notice of their violation comes to Braces Academy’s attention. Such User Content submitted by You or others need not, however, be maintained on the Service by us for any period of time and You will not have the right, once submitted, to modify or revoke access of such User Content on the Service. 

You represent that Your Content is original to You. Braces Academy may now or in the future offer users of the Service the opportunity to display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) User Content. We may do this through e-mail and other functionality. Subject to the rights and license You grant in the Service Agreement, You retain whatever legally cognizable right, title and interest that You have in Your User Content.

3.3 Each time You submit any User Content, You represent and warrant that You are at least the age of majority in the state in which You reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content You submit, and that, as to that User Content, (a) You are the sole author and owner of the intellectual property and other rights to the User Content, or You have a lawful right to submit the User Content and grant Braces Academy the rights to it that You are granting by this Agreement, all without any Braces Academy obligation to obtain consent of any third party and without creating any obligation or liability of Braces Academy; (b) the User Content is accurate; (c) the User Content does not and, as to Braces Academy’s permitted uses and exploitation set forth herein, will not infringe any intellectual property or other right of any third party; (d) the User Content will not violate the Service Agreement, or cause injury or harm to any person; and (e) if applicable, HIPAA compliant.

3.4 Please remember that User Content that You submit will be accessible to and viewable by other users. You agree that (i) Your User Content will be treated as non-confidential and non-proprietary and will not be returned, and (ii) Braces Academy does not assume any obligation of any kind to You or any third party with respect to Your User Content. Upon Braces Academy’s request, You will furnish us with any documentation necessary to substantiate these rights and verify Your compliance with this Agreement.

3.5 The Service may contain links to or otherwise allow connections to third-party websites, servers, and online services or environments that are not owned or controlled by Braces Academy. You agree that Braces Academy is not responsible or liable for the Content, policies or practices of any third-party websites, servers or online services or environments. Please consult any applicable terms of use and privacy policies provided by the third party for such websites, servers or online services or environments.

 

3.6 The Service is subject to scheduled and unscheduled service interruptions and loss of server data, which You do not own and for which You will not hold us liable. Braces Academy may on occasion need to interrupt the Service with or without prior notice. You agree that Braces Academy will not be liable for any interruption of the Service (whether intentional or not), and You understand that except as may otherwise be specifically provided in the Service Agreement, You will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, You agree that in the event of data loss, we will not be liable for any purported damage or harm arising therefrom. Braces Academy owns the bits and bytes of electronic data stored on its Servers, and accordingly will not be liable for any deletion, corruption or data loss that occurs in connection with the Service. Braces Academy will solely determine any disposition of the electronic data stored on its Servers and will have no obligation to reproduce, process, transfer, extract or recreate any data from its Servers.

4. Content Licenses and Intellectual Property Rights

 

4.1 Braces Academy owns Intellectual Property Rights in the Service and the Braces Academy Marks. You acknowledge and agree that Braces Academy and its’ licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Content. You understand and agree that without a written license agreement with Braces Academy, we do not authorize You to make any use of the Braces Academy Marks. Except as expressly granted in this Agreement, all rights, title and interest in and to the Service, and in and to the Braces Academy Marks are reserved by Braces Academy. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Braces Academy Marks.

 

4.2 Braces Academy grants You certain licenses to access and use the Service while You are in compliance with the Terms of Service; Additional terms may apply. Braces Academy hereby grants You a non-exclusive, non-transferable, non-sublicenseable, limited, personal, revocable license to access and use the Service on a personal computer, mobile phone or other wireless or internet-enabled device (each an “Internet Device”) as set forth in these Terms of Service and expressly conditioned upon You and each of Your Accounts remaining active, in good standing, and in compliance with these Terms of Service.

4.3 You grant Braces Academy certain licenses to Your User Content. You retain any and all Intellectual Property Rights You already hold under applicable law in Content You upload, publish, and submit to or through the Servers, Websites, and other areas of the Service, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of other users or Braces Academy in Content that You may use or modify. In connection with Content You upload, publish, or submit to any part of the Service, You affirm, represent, and warrant that You own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Braces Academy to use the Content in the manner contemplated by the Service and these Terms of Service. Because the law may or may not recognize certain Intellectual Property Rights in any particular Content, You should consult a lawyer if You want legal advice regarding Your legal rights in a specific situation. You acknowledge and agree that You are responsible for knowing, protecting, and enforcing any Intellectual Property Rights You hold, and that Braces Academy cannot do so on Your behalf.

4.4 Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User Content, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that You will not receive any fees, sums, consideration or remuneration for any of the rights granted in this Section.

4.5 You hereby grant to Braces Academy, and You agree to grant to Braces Academy, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and sell, re-sell or sublicense (through multiple levels, and otherwise exploit in any manner whatsoever, all or any portion of Your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of Your Content as Braces Academy may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 4.5 is referred to as the "Service Content License."

4.6 You also acknowledge that the Service Content License granted to Braces Academy with respect to Your Content will survive any such termination solely as follows to permit Braces Academy: (i) to retain server copies of particular instances of Your Content, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section 4 for any other copies or instances of the same Content that You have not specifically deleted from the Service, including those that may be displayed elsewhere or exist in other users' Account inventories.

4.7 You acknowledge that Braces Academy has no obligation to monitor or enforce Your intellectual property rights to Your User Content, but You grant us the right to protect and enforce our rights to Your User Content, including by bringing and controlling actions in Your name and on Your behalf (at Braces Academy’s cost and expense, to which You hereby consent and irrevocably appoint Braces Academy as Your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

 

4.8 You agree to respect the Intellectual Property Rights of other users, Braces Academy, and third parties. You agree that You will not publish, or submit to any part of the Service, any Content that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless You are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant Braces Academy and users of the Service all of the license rights granted in these Terms of Service. You acknowledge that the Content of the Service is provided or made available to You under license from Braces Academy and independent Content providers, including other users of the Service ("Content Providers"). You acknowledge and agree that except as expressly provided in the Services Agreement, the Intellectual Property Rights of Braces Academy and other Content Providers in their respective Content are not licensed to You by Your mere use of the Service. You must obtain from the applicable Content Providers any necessary license rights in Content that You desire to use or access.

4.9 You agree that You will not copy, transfer, or distribute outside the Service any Content, other than your own, in whole or in part or in modified or unmodified form, or that infringes or violates any Intellectual Property Rights of Braces Academy, other Content Providers, or any third parties. Braces Academy reserves the right, but is not obligated to use technological measures designed to prohibit the copying, transfer, or distribution of Content outside the Service when we in good faith believe that such copying, transfer, or distribution would or might violate the Intellectual Property Rights of our users, Braces Academy, or third parties.

4.10 You are solely responsible and liable for Your use, reproduction, distribution, modification, display, or performance of any Content in violation of the Agreement or in violation of any Intellectual Property Rights. You agree that Braces Academy will have no liability for, and You agree to defend, indemnify, and hold Braces Academy harmless for, any claims, losses or damages arising out of or in connection with Your use, reproduction, distribution, modification, display, or performance of any Content in violation of the Agreement or in violation of any Intellectual Property Rights.

5. Your Account and Termination

5.1 You are solely responsible for all activities conducted through Your Account whether or not You authorize the activity (except to the extent that activities occur because someone gains access to our system without using Your identifiers and password). In the event that fraud, illegality or other conduct that violates this Agreement is discovered or reported (whether by You or someone else) that is connected with Your Account, we may terminate Your Account (or Accounts) as described in Section 5.

5.2 You are solely responsible for maintaining the confidentiality of Your password and for restricting access to Your Internet Device. You are solely responsible for any harm resulting from Your disclosure, or authorization of the disclosure, of Your password or from any person's use of Your password to gain access to Your Account or Account Name. You will immediately notify us of any unauthorized use of Your Account, password or username, or any other breach of security related to the Service. At no time should You respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of Your password to any other person is at Your own risk. We will not be liable for any loss or damage (of any kind and under any legal theory) to You or any third party arising from Your inability or failure for any reason to comply with any of the foregoing obligations. 

5.3 We may collect and retain any information that You provide to us, including any information provided during registration, including transaction information that you provide to us with the purchase of the Service, including Your business address, telephone number and payment information. We may share information about You and the Service provided to You only for business purposes and will not share Your information for marketing purposes to any third-party without your express consent, except to the extent Your information, except for payment information, is necessary to facilitate advertisements or sponsors to support our Service or Website.

5.4 You may not terminate Your Account(s) at any time. You may not terminate this Agreement by closing Your Account(s). In such event, You are still under the obligation or liability of this Agreement. You shall not be entitled to any compensation or other payment, remedy, recourse or refund.

 

5.5 We may terminate Your Accounts as follows:

• For violation of this Agreement. Braces Academy may suspend or terminate Your Account if You violate this Agreement, along with any or all other Accounts held by You or otherwise related to You, as determined by Braces Academy in its discretion, and Your violation of this Agreement shall be deemed to apply to all such Accounts. Upon termination of Your Accounts, this Agreement between us will be automatically terminated and You may not re-subscribe or return to the Service through other or future Accounts You or others may set up;

• To protect the best interests of the Service and the community or if we believe You pose an unacceptable risk to the community. We may terminate Your Account if we determine in our discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of Braces Academy, the Service community or any third party; and

• Upon a general suspension or discontinuation of the Service. If Braces Academy elects to generally suspend or discontinue the Service, in whole or in part, for any reason, Braces Academy may terminate Your Accounts. In such event, You will not be entitled to compensation for such suspension or termination, and You acknowledge that Braces Academy will have no liability to You in connection with such suspension or termination. If the service is paid in advance You will be returned a prorated amount.

 

5.6 Upon Account termination, You will lose access to Your Account and all licenses, Content, and data, and You understand this is a risk of participating in the Service. Upon termination of Your Account, You will no longer be able to access Your Account or access (or transfer or direct the transfer to any other Account) any Content or data You have stored on the Servers. All licenses granted by Braces Academy to use the Service. You should ensure that You have only stored Content on the Servers to which You are willing to permanently lose access. You acknowledge and assume the risk of the possibility of termination of Your Account as provided in this Agreement, and You represent that You will make Your decisions to participate in the Service, contribute Content, spend Your money and dispose of transferable licenses at all times knowingly based upon these risks. Upon termination, You will remain liable for any unpaid amounts owed by You to Braces Academy.

 

5.7 Some terms of this Agreement will survive and continue after termination. The provisions of this Agreement which by their nature should survive Your suspension or termination will survive, including the rights and licenses You grant to Braces Academy in this Agreement, as well as to the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.

6. Conduct by Users of the Service

6.1 You agree to abide by applicable Federal and State law, rules and regulations and any other applicable rules of conduct and applicable community standards when using the Service. You are solely responsible for Your interaction with Your Patients. We are not responsible or liable for the conduct or content of any user. We reserve the right, but not the obligation, to monitor or become involved in disputes between You and Your Patient concerning any aspects of the Service.

6.2 You will not post or transmit prohibited Content, including any Content that is illegal, harassing or violates any person's rights. You agree that You will not: (a) Post, display, or transmit Content that violates any law or the rights of any third party, including without limitation Intellectual Property Rights. We reserve the right to request at any time proof of permissions in a form acceptable to us. Failure to provide such proof may lead to, among other things, removal of such Content from the Service; and (b) Impersonate any person or entity without their consent, or otherwise misrepresent Your affiliation, or if You are an adult, use the image of a minor in any media images you submit without the consent of the person with the legal authority to authorize such use and in compliance with HIPAA rules and regulations. Any violation by You of the terms of this Section may result in immediate termination of Your Accounts without any refund or other compensation.

 

6.3 You agree that You will not post or transmit Content or code that may be harmful, impede other users' functionality, invade other users' privacy, or surreptitiously or negatively impact any system or network. You agree to respect both the integrity of the Service and the privacy of other users. You will not: (a) Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or information about other users without their consent; (b) Post or transmit unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that Braces Academy considers to be of such nature; (c) Engage in malicious or disruptive conduct that impedes or interferes with other users' normal use of or enjoyment of the Service; (d) Use any cheats, mods, hacks, or any other unauthorized techniques or unauthorized third-party software to cheat in any competition or game that may be offered on the Service, or to otherwise disrupt or modify the Service or the experience of any users on the Service; or (e) Attempt to gain unauthorized access to any other user's Account, password or Content.

 

7.     Infringement Notification

 

We operate an intellectual property complaint process for complaints that User Content infringes another’s Intellectual Property Rights, the details of which are described below as follows:

 

7.1    DMCA Notice: Braces Academy will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If You own a copyright in a work (or represent such a copyright owner) and believe that Your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Website, then You may send us a written notice that includes all of the following: (i)  A legend or subject line that says: "DMCA Copyright Infringement Notice"; (ii) 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; (iii) a description of where the material that You claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears); (iv) your full name, address, telephone number, and e-mail address; (v) a statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (vi) a statement by You, made under penalty of perjury, that all the information in Your notice is accurate, and that You are the copyright owner (or, if You are not the copyright owner, then Your statement must indicate that You are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and, (vii) your physical signature.

Braces Academy will only respond to DMCA Notices that it receives by registered mail to Braces Academy, 230 Carroll Street, Shreveport, Louisiana 71105. It is often difficult to determine if Your copyright has been infringed. Braces Academy may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Braces Academy may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA. Please note that the DMCA provides that any person who knowingly, materially misrepresents that material or activity is infringing may be subject to liability. We may send the information that You provide in Your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification (as described below). Without limiting Braces Academy’s other rights, Braces Academy may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other property owned or operated by Braces Academy.

 

7.2    DMCA Counter-Notification: If access on the Service to a work that You submitted to Braces Academy is disabled or the work is removed as a result of a DMCA Notice, and if You believe that the disabled access or removal is the result of mistake or misidentification, then You may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information: (i) A subject line that says: "DMCA Counter-Notification"; (ii) a description 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 (please include the URL of the Website from which the material was removed or access to it disabled); (iii) 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; (iv) your full name, address, telephone number, e-mail address, and the username of Your Account; (v) a statement that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located (or, if the address is located outside the United States, to the jurisdiction of the United States District Court for the Northern District of California), and that You will accept service of process from the person who provided DMCA notification to us or an agent of such person; and (vi) your physical signature.

Please note that the DMCA provides that any person who knowingly, materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

 

7.3    Procedure for Alleging Infringement of Other Intellectual Property: If You own intellectual property other than copyrights and believe that Your intellectual property has been infringed by an improper posting or distribution of it via the Service, then You may send us a written notice to the address set forth in Section 7.1 above that includes all of the following: (i) A legend or subject line that says: “Intellectual Property Infringement Notice”; (ii) a description of the intellectual property that You claim has been infringed; (iii) a description of where the material that You claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears); (iv) your full name, address, telephone number, and e-mail address; (v) a statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law; (vi) a statement by You, made under penalty of perjury, that all the information in Your notice is accurate, and that You are the owner of the intellectual property at issue (or, if You are not the owner, then Your statement must indicate that You are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and (vii) your physical signature.

We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Braces Academy with regard to any such notice is subject to suspension or termination. We may send the information that You provide in Your notice to the person who provided the allegedly infringing material.

 

7.4    In Your communications with Braces Academy, please keep in mind that Braces Academy does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, (collectively, “Unsolicited Ideas and Materials”). Therefore, You must not send to Braces Academy (even within any of Your User Content that we may request), in any form and by any means, any Unsolicited Ideas and Materials. Any Unsolicited Ideas and Materials You post on or send to us via the Service are deemed User Content and licensed to us as set forth above. Except as otherwise specifically described in the Service Agreement, Your relationship with Braces Academy is not a confidential, fiduciary, or other type of special relationship and Your Unsolicited Ideas and Materials, and anything else submitted by You will be treated as non-confidential and non-proprietary User Content – regardless of whether You mark them “confidential”, “proprietary”, or the like. Braces Academy will not assume any responsibility, obligation, or liability for the receipt or non-receipt of any of the foregoing. Therefore, Your decision to submit any Unsolicited Ideas and Materials to Braces Academy  does not place Braces Academy  in a position that is any different from the position held by members of the general public with regard to Your Unsolicited Ideas and Materials. Braces Academy’s receipt of Your Unsolicited Ideas and Materials is not an admission by Braces Academy of their novelty, priority, or originality, and it does not impair Braces Academy’s right to contest existing or future intellectual property rights relating to Your Unsolicited Ideas and Materials.

8. Releases, Disclaimers, Liability Limits and Indemnification

 

8.1 Braces Academy is NOT liable for its users' actions, and You release Braces Academy from any claims relating to other users. You agree not to hold Braces Academy liable for the Content, actions, or inactions of other users. As a condition of access to the Service, You release Braces Academy (and its officers, directors, shareholders, agents, subsidiaries and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute You have or claim to have with one or more users, including whether or not Braces Academy becomes involved in any resolution or attempted resolution of the dispute.

If You are a California resident, You waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If You are a resident of another jurisdiction, You waive any comparable statute or doctrine.

You agree and understand that Braces Academy does not control and is not responsible for information You provide to parties other than Braces Academy.

8.2 Braces Academy provides the Service on an "as is" basis, without express or implied warranties.

BRACES ACADEMY PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE BRACES ACADEMY SOFTWARE, THE WEBSITES, THE SERVERS, THE CONTENT, THE VIRTUAL GOODS AND SERVICES, AND YOUR ACCOUNT, STRICTLY ON AN "AS IS" BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR CONTENT OR ANY EXPENDITURE ON YOUR PART, BRACES ACADEMY AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON BRACES ACADEMY'S SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS.

Braces Academy does not ensure continuous, error-free, secure or virus-free operation of the Service, the Websites, the Servers, or Your Account, and You understand that You shall not be entitled to refunds or other compensation based on Braces Academy's failure to provide any of the foregoing other than as explicitly provided in the Service Agreement. Some jurisdictions do not allow the disclaimer of implied warranties and, to that extent, the foregoing disclaimers may not apply to You.

8.3 Braces Academy's liability to You is expressly limited, to the extent allowable under applicable law.

IN NO EVENT SHALL BRACES ACADEMY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AGENTS OR LICENSORS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, OR PUNITIVE LOSSES OR DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT BRACES ACADEMY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRACES ACADEMY'S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF (i) ONE HUNDRED DOLLARS (U.S. $100.00); OR (ii) THE FEES, IF ANY, PAID BY YOU FOR USE OF THE SERVICE; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.

Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to You. In such jurisdictions, the liability of the Braces Academy parties to You is limited to the lowest amount permitted by applicable law. 

 

8.4 At Braces Academy's request, You agree to defend, indemnify and hold harmless Braces Academy, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from: (i) Your User Content; (ii) Your acts, omissions, or use of the Service, including without limitation Your negligent, willful or illegal conduct; (iii) Your breach or alleged breach by You of this Agreement, including without limitation Your representations and warranties relating to Your Content; (iv) Your violation or anticipatory violation of any applicable law, rule or order in connection with Your use of or activities in the Service; (v) information or material transmitted through Your Internet Device that infringes or misappropriates any Intellectual Property Right; (vi) any misrepresentation made by You; (vii) Braces Academy’s use of the information that You submit to us; (viii) Your purported “ownership of any Usage Subscriptions or virtual items; or (ix) the increase or decrease in “value” or loss of Usage Subscriptions or virtual items if Braces Academy deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”) . We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with our defense of such claim. You will not settle any Claims and Losses without, in each instance, the prior, written consent of an officer of Braces Academy.

8.5 You are not our employee, and You have no rights to compensation. You acknowledge that Your participation in the Service, including Your creation or uploading of Content in the Service, does not make You a Braces Academy employee and that You do not expect to be, and will not be, compensated by Braces Academy for such activities, and You will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture or franchise relationship is intended or created by the Service Agreement.

9. Dispute Resolution and Arbitration

9.1 Governing Law and Venue: The terms and conditions set out herein are governed and construed in accordance with the laws of the State of Louisiana, without giving effect to its conflict of law rules. Venue for any proceeding at law or in equity related to the conditions and terms set out herein shall be the State courts of Caddo Parish, Louisiana, and You hereby waive any right to object to this exclusive venue. You further consent to the personal jurisdiction by said courts over it and hereby expressly waive, in the case of any such action, any defenses thereto based on jurisdiction, venue or forum non conveniens. The prevailing party in any dispute arising out of the terms and conditions set out herein and in the Agreement will be entitled to reasonable attorney fees.

9.2 Arbitration:
The parties acknowledge and agree that the Agreement and the transactions contemplated hereby evidence transactions which involve a substantial nexus with interstate commerce. Accordingly, except as otherwise specifically set forth herein, any controversy or claim between the parties arising out of or related to the terms and provisions of the Agreement or the performance of the Development Services must be settled by binding arbitration in Shreveport, Louisiana, by the American Arbitration Association in accordance with its then-prevailing rules, by a panel of three neutral arbitrators (or, in the event that the aggregate amount in dispute does not exceed $100,000, by a single neutral arbitrator), in lieu of judicial proceedings. The arbitrators shall have no power to change the provisions of the Agreement, the determination of the arbitrators shall be conclusive and binding upon the parties thereto, and the judgment upon the award rendered may be entered in accordance with applicable law in any court having jurisdiction thereof. The prevailing party in any arbitration proceeding shall be entitled, in addition to such other relief as it may obtain as a result of such proceeding, to the payment of all costs and expenses incurred in connection therewith, including reasonable attorneys’ fees. The American Arbitration Association shall have the power to select which of its regional offices shall have the authority to administer any arbitration proceeding commenced in connection with a dispute arising under this Agreement.

You can obtain AAA and JAMS procedures, rules, and fee information as follows:

AAA: 1.800.778.7879 or www.adr.org/ JAMS: 1.800.352.5267 or www.jamsadr.com

9.3
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES OR DAMAGES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES AND DAMAGES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, USER CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY BRACES ACADEMY (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF BRACES ACADEMY.

9.4
All claims You bring against Braces Academy must be resolved in accordance with this Dispute Resolution and Arbitration Section. All claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed and a breach of these Terms of Service. Should You file a claim contrary to Section 9 of this Agreement, Braces Academy may recover reasonable attorneys' fees and costs, provided that notice is provided to you in writing of the improperly filed Claim, and You have failed to promptly withdraw the Claim.