Find Your Grind Curriculum Terms of Service
These Terms of Service (the “Terms”) govern your use of the “Curriculum” (as defined below) created by FYG Productions, LLC. (“FYG,” “we” or “us”) and offered by FYG for download on the FYG website. Please read these Terms carefully. By using the Curriculum, you affirm that you have read and understand, and agree to be bound by, these Terms as well as our General Terms of Service. If you do not agree to these Terms, you may not use the Curriculum.
1.1 “Curriculum” means the educational program created by FYG in connection with the FYG website.
1.2 “Authorized User” means an employee you authorized to access or use the Curriculum.
1.3 “Fees” has the meaning given in Section 3.1.
1.4 “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the Laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
1.5 “Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality.
1.6 “Term” has the meaning given in Section 5.1.
1.7 “Territory” means the United States of America and Canada.
1.8 “Usage Requirements” means FYG’s requirements for accessing and using the Curriculum, as applicable, as such usage requirements may be specified by FYG (including via email or electronic notification) from time to time.
2.1 Provision of Curriculum. During the Term in the Territory and subject to the terms and conditions of the Agreement, you agree to use, and FYG agrees to make available, the Curriculum solely as contemplated by the Agreement and in accordance with FYG’s Usage Requirements.
2.2 Restrictions. Except as set forth in the Agreement, you agree not to (a) interfere with or disrupt the Curriculum or attempt to gain access to any systems or networks that connect to the Curriculum (except as required to access and use the Curriculum, and then only in accordance with FYG’s Usage Requirements) (b) reproduce or distribute information obtained via the Curriculum; (c) use or authorize use of the Curriculum, or any information obtained via the Curriculum, for any purpose not specified in the Agreement, including, without limitation, the use of information obtained via the Curriculum for the purpose of offering services to third parties that are competitive to the Curriculum provided by FYG hereunder; (d) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Curriculum or access thereto or information obtained therefrom, including, without limitation, the systematic downloading and copying of any database you obtain access to pursuant to the Curriculum hereunder; or (e) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble any of the Curriculum or any portion thereof, or attempt to do any of the foregoing.
2.3 Ownership; No Implied Licenses. You acknowledge that, as between the parties, FYG owns all right, title, and interest in and to the Curriculum. Except to the extent set forth herein, (a) FYG does not grant to you any license, express or implied, to FYG’s Intellectual Property Rights and (b) nothing in the Agreement or the performance thereof, or that might otherwise be implied by Law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other party. FYG, on behalf of itself and its licensors, expressly reserves all Intellectual Property Rights not expressly granted hereunder. The Curriculum may include materials that are or may be found to be in the public domain under applicable Laws. FYG makes no representation or claim of copyright ownership to any such materials. The Curriculum may contain links to third-party websites and other Internet resources that are not owned or controlled by FYG (“Third-Party Materials”). FYG’s provision of a link to any Third-Party Materials is for your convenience only and does not signify FYG’s endorsement of such other website or resource or its contents. FYG shall have no responsibility or liability for any content, information, software, materials or practices of any third-party materials including any product or service advertised or offered by a third party through the curriculum or any linked website or featured in any advertising.
3. Fees and Payments
3.1 Fees and Payment. For the Curriculum, you shall pay all applicable then-current fees and charges as indicated by FYG (“Fees”). Except as provided in Section 5.3 and Section 9.1.1, all payments are non-refundable. Any amounts remaining unpaid following the payment due date, and all disputed payments that are paid following the resolution of such dispute, shall, automatically and without any formal notice, give rise to the payment of interest accruing from the original payment due date through the date that such amounts are paid at the interest rate equal to the lesser of (i) one and one-half percent per month (each month commenced being considered as a complete month) and (ii) the highest interest rate permitted by Law. If any undisputed amount is more than 60 days past due and without limitation of FYG’s other rights and remedies, FYG may suspend your access to the Curriculum and the provision of services under the Agreement, in whole or in part, until such amounts are paid in full, including compensation and interest on overdue amounts. You will reimburse FYG for all costs incurred by FYG (including reasonable attorneys’ fees, collection fees and court costs, if any) in connection with any collection efforts in connection with or arising out of the Agreement.
3.2 Taxes. You will be responsible for and will pay when due all sales, use, VAT and other taxes and similar charges based on or arising from the Agreement or its performance, other than taxes based on FYG’s net income.
4. Your Duties and Responsibilities
4.1 Access to Curriculum. You are responsible for acquiring and maintaining, at its sole cost and expense, all telecommunications and Internet services and other hardware and software required to access and use the Curriculum. In order to access and use the Curriculum, you will register with FYG and create a unique, password-protected account. In addition, you must notify FYG in writing of all your Authorized Users and will promptly notify FYG in writing of any changes to your list of Authorized Users. You will take reasonable measures to safeguard its account passwords and log-in information.
4.2 Responsibility for Account Activity. As between the parties, you shall be solely responsible for any use of the Curriculum under its account, whether authorized by you or not.
5. Term, Termination, and Suspension
5.1 Term. Unless terminated earlier or extended in accordance with this Section 5.1, the Curriculum shall be provided and the Agreement shall continue for a period of one year following the Effective Date (the “Initial Term”). The Agreement shall automatically renew for successive one-year periods at FYG’s then-current Fees (each, a “Renewal Term”) unless (a) You fails to pay invoiced amounts for the Renewal Term prior to the expiration of the then-current Term or (b) either party elects not to renew by providing written notice to the other party no fewer than 30 days prior to the expiration of the then-current Term. “Term” means the Initial Term and any Renewal Terms.
5.2 Termination for Breach. Either party may terminate the Agreement, at any time, if the other party breaches any material term of the Agreement and fails to cure that breach within 15 days after notice thereof from the non-breaching party.
5.3 Termination for Convenience. Either party may terminate the Agreement in its sole discretion by providing 30 days written notice to the other party.
5.4 Effect of Termination. Upon termination or expiration of the Agreement, FYG will cease providing the Curriculum. Sections 1, 2.2, 2.3, 3 (until all payments are made), 6, 7.1, 8, 9, 10, 11 and this Section 5.4 will survive any termination or expiration of the Agreement. Any payment obligations as of the termination or expiration of the Agreement (or that relate to activity during the term) shall remain in effect.
5.5 Suspension Rights. FYG may suspend your use of the Curriculum, in its sole discretion, in the event (a) that FYG reasonably believes that you or anyone using the Curriculum through your account is engaged in (i) any activity that may harm FYG, FYG’s Curriculum or FYG’s ability to operate and maintain its Curriculum; (ii) any fraudulent or illegal activity or any activity that could result in legal liability to FYG; or (b) as provided in Section 3.1. Any such suspension may continue until the event causing such suspension has been cured or until FYG has received satisfactory assurances that such event will not recur.
6. Representations, Warranties and Covenants; Disclaimer
6.1 Mutual Warranty. Each party hereto represents, warrants and covenants to the other party that: (a) it has the full right, power and authority to enter into the Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of the Agreement by it, and the performance of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by it, the Agreement will constitute a legal, valid and binding obligation, enforceable against it in accordance with the terms hereof.
6.2 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CURRICULUM IS MADE AVAILABLE TO YOU "AS IS". TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITATION OF THE FOREGOING, FYG WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF ANY INFORMATION OR DATA; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF THE CURRICULUM; (C) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE CURRICULUM; (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE CURRICULUM BY ANY THIRD PARTY; OR (E) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY INFORMATION OR DATA POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE CURRICULUM.
6.3 NO LEGAL ADVICE. YOU ACKNOWLEDGE AND AGREE THAT FYG DOES NOT PROVIDE, AND THE CURRICULUM SHALL NOT BE CONSTRUED AS THE PROVISION OF, LEGAL ADVICE. ALL MATERIALS AND INFORMATION MADE AVAILABLE THROUGH CURRICULUM ARE FOR REFERENCE PURPOSES ONLY AND ARE SUBJECT TO LEGAL REVIEW AND INTERPRETATION. YOU ARE SOLELY RESPONSIBLE FOR ITS USE OF SUCH MATERIALS.
7. Privacy and Data
7.1 Privacy. FYG recognizes the importance of consumer privacy and will use commercially reasonable efforts to adhere to industry standards. FYG will use commercially reasonable efforts to comply with all applicable Laws regarding the collection, use and disclosure of personal information. You shall reasonably cooperate with FYG’s specific requests as necessary to facilitate such compliance.
7.2 Data Rights. FYG may use and disclose data derived from your use of the Curriculum, (a) as part of your business operations, on an aggregate basis (absent your prior consent) such that any use or disclosure does not permit a third party to associate any particular data with you and (b) if required by court order, Law or governmental agency. In addition, FYG may use data derived from your use of the Curriculum for FYG’s internal purposes, including to operate, manage, maintain and improve FYG’s products and services.
8.1 Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, user manuals, data, pricing, financial information, end user information, user interfaces, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of the Agreement also constitute the Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Receiving Party will use at least the same level of care to maintain the Confidential Information of the Disclosing Party as it uses to maintain the confidentiality of its own non-public information and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of the Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.
9.1 By FYG. FYG shall indemnify, defend and hold harmless you and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, “Your Parties”) against any liability, damage, loss or expense (including reasonable outside attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Your Parties or any of them in connection with any third-party claim, suit, action, demand or judgment (each, a “Claim”) (a) that the Curriculum, including any documents, opinions, information or other content obtained from the Curriculum (“Content”), as made available by FYG and to the extent used in accordance with the Agreement and all applicable Usage Requirements, infringe or violate the Intellectual Property Rights of any third party or (b) alleging any fact that, if true, would constitute a breach by FYG of any representation, warranty or covenant made by it under Section 6. You will (i) provide FYG with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve FYG of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit FYG to assume and control the defense of such action upon FYG’s written notice to you of FYG’s intention to indemnify; and (iii) upon FYG’s written request, and at no expense to you, provide to FYG all available information and assistance reasonably necessary for FYG to defend such claim. FYG will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any of Your Parties, without your prior written consent.
9.1.1 Right to Ameliorate Damages. If any of Your Parties seeks indemnity under Section 9.1 for a Claim of infringement of Intellectual Property Rights, or if, in FYG’s reasonable opinion, such a Claim is likely to be asserted against you and/or FYG, FYG may, in its sole discretion and at its sole expense and without limiting any of its obligations under Section 9.1: (a) obtain the right for you to continue to use the Curriculum; (b) render the Curriculum non-infringing; (c) provide a non-infringing substitute with substantially the same features, functions and performance or (d) if (a)-(c) are not reasonably obtainable in the exercise of commercially reasonable efforts, FYG may terminate this Agreement upon notice to you without further liability or obligation hereunder except that FYG shall provide a refund of any pre-paid but unused fees calculated on a pro-rata basis as of the effective date of termination.
9.2 By You. You shall indemnify, defend and hold harmless FYG, its affiliates and its and their directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “FYG Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the FYG Parties or any of them in connection with any third-party claim, suit, action, demand or judgment (each, a “Claim”) (a) arising from or relating to your or any Authorized User’s use of any Content in violation of the Agreement, including any applicable Usage Requirements, or in violation of any Law; (b) arising from or relating to your or any Authorized User’s use of the Curriculum other than as permitted under the Agreement; or (c) alleging any fact, which, if true, would constitute a breach by you of any representation, warranty or covenant made by it under Section 6. FYG will (x) provide you with prompt notice of any such Claim (provided that the failure to provide prompt notice shall only relieve you of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (y) permit you to assume and control the defense of such action upon your written notice to FYG of your intention to indemnify; and (z) upon your written request, and at no expense to FYG, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any liability to any FYG Party, without FYG’s prior written consent.
10. Limitations of Liability
10.1 NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FYG WILL HAVE NO LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FYG’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH FYG’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE FEES PAID TO FYG BY YOU IN THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
11.1 Independent Contractors. It is the intention of FYG and you that FYG and you are, and will be deemed to be, independent contractors with respect to the subject matter of the Agreement, and nothing contained in the Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between FYG and You.
11.2 Use of Your Name. FYG may use your name during the Term in FYG’s promotional material and as a reference account with your prior written consent.
11.3 Notice. All notices in accordance with the Terms shall be given in writing, in the English language, and shall be deemed given when personally delivered, when sent by email or confirmed fax, or three days after being sent by prepaid certified or registered FedEx to the address last provided to the other by written notice given in accordance with this Section 11.3.
11.4 Assignment. You may not assign, transfer, delegate, sell or otherwise dispose of the Agreement, whether in whole or in part (including, without limitation, by operation of law), without FYG’s prior written consent. Any purported assignment, transfer, delegation, sale or other disposition in contravention of the foregoing is void. FYG, in its discretion, may (a) assign the Agreement in connection with the sale of all or substantially all its assets, equity interests or business or to any affiliated entity, and (b) in whole or in part, delegate its performance to, or exercise its rights through, one or more affiliated entities. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and assigns.
11.5 Governing Law. The Agreement will be governed by and interpreted in accordance with the Laws of the State of Delaware without regard to any conflict of laws principles.
11.6 Arbitration. In the event of any dispute concerning the validity, interpretation, enforcement or breach of the Agreement, the parties unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly they hereby consent to personal jurisdiction over them) in Los Angeles in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. Without limiting the foregoing, the parties agree that any such arbitrator’s decision may be enforced in, and accordingly submit to the nonexclusive jurisdiction and venue of, any court of competent jurisdiction sitting in Los Angeles. The arbitrator shall have the discretion to award the prevailing party its reasonable attorneys’ fees and arbitration costs from the other party.
11.7 Amendment and Waiver. Except as otherwise provided herein, no amendment to, or waiver of, any provision of the Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. Notwithstanding the foregoing, FYG reserves the right to modify and amend any provision contained in the Agreement by providing you with 15-days written notice of any such modification or amendment. If you raise no objections within such 15-day period, then your subsequent use of the Curriculum will be deemed an acceptance of such modifications or amendments.
11.8 Severability. Each provision of the Agreement shall be viewed as separate and distinct, and in the event that any provision shall be deemed by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, the court or arbitrator finding such illegality, invalidity or un-enforceability shall modify or reform the Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of the Agreement shall continue in full force and effect.
11.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, acts of God, or outages caused by the failure of public network or communications components.
11.10 Miscellaneous. These Terms, any Usage Requirements and any additional terms that may apply to a particular Service, constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter of the Agreement and supersedes all prior or contemporaneous agreements or understandings relating to their subject matter. FYG may, in its sole and absolute discretion, change these Terms from time to time. Headings are for convenience only and are not deemed to be part of the Agreement.