Terms of Service
Effective Date: 1 May 2021
Most high, Inc. (“Most High”, “Company”, “we” or “us”) provides the website located at www.insighttimer.com (the “Site”) and our services accessible via our Site and our mobile device application (“App”). Our services and App are collectively called the “Services.” Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Services.
If you are a teacher providing classes and other content through the Services, please be sure to read our Terms for Teachers, located below and on the Teacher Dashboard.
In some instances, both these Terms and separate terms elsewhere on the Services will apply to your use of the Services (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
Please note that Section 10.0 Dispute Resolution, contains an arbitration clause and class action waiver. By agreeing to the Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions.
If you violate any of these Terms, your permission to use the Services automatically terminates, unless such violation is waived by us in writing at our sole discretion.
You must be over 16 years of age to use the Services. You are allowed to access and use the Services only if you are legally permitted to do so via the laws of your jurisdiction, including laws regarding minimum age requirements. You acknowledge that use of the Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator.
1.0 LICENSED RIGHTS TO SERVICES AND CONTENT
1.1 The Service contains: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Company; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
1.2 Subject to your strict compliance with these Terms and any Additional Terms, we grant to you a non-exclusive, non-transferable, revocable, non-assignable, personal, limited license to download, display, view, use and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”), in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
1.3 No other right or license to the Content is provided, and no other license shall be implied, by course of conduct or otherwise. We retain all right, title and interest in and to the Services, and all associated intellectual property rights. Except as expressly authorized by these Terms, you shall not use, reproduce, or distribute Content contributed by other users or by us.
1.4 You may not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Company; (iii) harvest any information from the Service or Content, including information about other users; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
1.5 You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
1.6 Company may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Company’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Company, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
1.8 All rights not expressly granted to you are reserved by Company and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
2.0 USER ACCOUNTS
2.1 In order to enjoy full access to the Service, you must register for an account. When registering an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security by visiting https://insight-timer.freshdesk.com/en/support/tickets/new. Failure to do so may result in the suspension or termination of your account. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
2.2 You may choose to access the Services through your account with certain third-party email providers or social networking services (each, a “Third-Party Account”). If you choose the Third-Party Account option, we may extract from your Third-Party Account certain personal information such as your name and email address and other personal information that your privacy settings on the Third-Party Account permit us to access.
2.3 We do not guarantee the authenticity of the identity of any user. Users are solely responsible for authenticating the identity of other users. You acknowledge that identities may be concocted and that other users may be acting under false pretenses or acting without authority.
3.0 SUBMISSIONS; USER CONDUCT
3.1 FOR INDIVIDUALS REGISTERED AS TEACHERS ON THE SERVICE: FOR TERMS RELATING TO YOUR SUBMISSION OF TEACHING CONTENT, INCLUDING WITHOUT LIMITATION, APPROVED VIDEOS, INSTRUCTIONAL INFORMATION, MENTORING INFORMATION, AND WORKSHOPS (COLLECTIVELY, ALONG WITH OTHER MATERIALS AND INFORMATION MADE AVAILABLE ON THE SERVICE, THE “CONTENT”), PLEASE REFER TO THE TERMS FOR TEACHERS BELOW.
FOR USERS OF THE SERVICE: When you submit any unsolicited ideas, feedback, opinions, techniques, images, sounds, videos, or other content to us through or relating to the Service (“Submissions”), you grant us a non-exclusive, worldwide, perpetual, transferable, sublicensable and cost-free right and license to use, reproduce, modify, distribute, create derivative works from, publicly perform and display, and otherwise exploit your Submissions in connection with the operation or promotion of the Services. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
3.2 You understand that you will not receive any fees or remuneration for any of the rights granted in this Section. You waive any and all rights and claims in connection with our consideration, use, or development of any materials similar or identical to your Submission now or in the future.
3.3 You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them. You further represent and warrant that your Submissions are accurate and not misleading, are not confidential, and are not in violation of these Terms or third-party rights.
3.4 All Submissions, whether publicly posted on or privately transmitted via the Services, are the sole responsibility of the user from which such Submissions originated. You agree not to upload, display, or distribute any Submissions or otherwise engage in any activity in connection with the Service, including through the 1:1, group and/or workplace functionalities, that:
(a) is hateful, offensive, libelous, defamatory, obscene, pornographic, lewd, abusive, erroneous, or threatening;
(b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil or criminal liability, or otherwise violate any applicable local, state, national, or foreign law or regulation;
(c) promotes illegal or harmful activities or substances;
(d) constitutes infringement of the intellectual property rights of any party;
(e) violates any contractual agreements you are party to, like confidentiality or non-disclosure agreements that you may have with an employer;
(f) creates an impression that is incorrect, misleading, or deceptive, including by impersonating others or otherwise misrepresenting your identity or affiliation with a person or entity;
(g) is for the purpose of soliciting other users to join commercial organizations or groups other than groups established pursuant to the Services; and
(h) reveals other people’s private or personal information without their express authorization and permission.
3.5 In addition to these Terms, you agree to abide by our Community Guidelines and the following requirements when engaging with Live, any livestream features on the platform, and any 1:1, group, and/or workplace functionalities:
(i) Be respectful of our community of teachers, users, and guests in both your public and private interactions on the platform;
(j) Do not post any content that is insensitive to or inappropriate for the community, including any content that depicts or promotes self-harm, eating disorders, or targets victims or survivors of the same;
(k) Help support a positive community by reporting violations of our Terms or Community Guidelines.
3.6 Although we are not obligated to monitor access to, or use of, the Services or Content or to review or edit any Submissions, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may, in our sole discretion, terminate the accounts of any users whose Submissions are, in our sole judgment, not in compliance with these Terms. We may remove or disable access to any Submissions at any time, without notice, and for any reason, including (but not limited to) if we, at our sole discretion, consider any Submissions to be objectionable or in violation of these Terms.
3.7 We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may preserve and disclose such Submissions if required to do so by law or judicial or governmental mandate or as reasonably determined useful by us to protect the rights, property or safety of Most High, users and/or the public.
4.0 GROUP FUNCTIONALITIES
4.1 When you access, join, or create a group through the group functionalities on the Services, you agree to be bound by these Terms and our Community Guidelines. The user who creates the group will be given administrative control over the group (“Group Administrator”). The workplace group functionalities allow any employee with a workplace-designated email address to create a workplace group for other employees of the employer, workplace, or affiliated organization (the “Designated Enterprise”). This permits multiple employees to create one or more workplace groups.
4.2 The Group Administrator’s control includes the ability to make the group public or private, admit new users, and remove users who do not comply with these Terms, the Community Guidelines, any additional guidelines as set out in the welcome message of the group, and as otherwise determined by the Group Administrator in their discretion, provided such discretion is in accordance with these Terms and our Community Guidelines. For workplace groups, the Group Administrator will be responsible for permitting only Designated Enterprise employees to join, use, and access the workplace group(s).
4.3 It is the Group Administrator’s responsibility to confirm the employment status of each user for the applicable workplace group. Notwithstanding the above, Most High reserves the right, to the extent the Designated Enterprise wishes to assume control over workplace group(s) associated with its employees, to provide all administrative rights, functionality, and control directly to the Designated Enterprise’s assigned administrator (“Designated Enterprise Administrator”). In such instances, the Group Administrator will immediately provide the Designated Enterprise and Designated Enterprise Administrator control over the workplace group.
4.4 For Group Administrators and Designated Enterprise Administrators, you agree to be bound by the Additional Terms for Group and Designated Enterprise Administrators at the end of these Terms of Service.
5.0 US DMCA
5.1 If you believe that your work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following in writing:
a) identification of the copyrighted work that you claim has been infringed;
b) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
c) your name, address, telephone number, and email address;
d) 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;
e) a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
5.2 The above writing must be electronically or physically signed by you. If we receive such a claim, we may refuse or delete Content as described under this section hereto, or terminate a user’s account in accordance with these Terms.
5.3 Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 can be contacted via [email protected] and is located at Insight Network Inc, 101 The Embarcadero, Suite 200, San Francisco CA 94105, phone: +1 (628) 227-6866.
5.4 In addition to forwarding your notice to the person who provided the allegedly illegal content, we may send a copy of your notice (with your personal information removed) to Chilling Effects (www.chillingeffects.org) for publication and/or annotation. We reserve the right to remove Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, we will also terminate a user’s account if the member is determined to be a repeat infringer.
5.5 If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
ii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iii) your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification or an agent of such person.
5.6 The above writing must be electronically or physically signed by you. We will respond to counter notifications in accordance with the DMCA.
6.0 SUBSCRIPTIONS AND PRODUCTS
6.1 Most High offers certain enhanced features of the Services which you can purchase as a monthly or yearly subscription (the “Subscriptions”). A description of features associated with Subscriptions is available via the Services. You may also purchase additional services, like mentoring and workshops, that are offered for sale (the “Products”), or make a donation to a teacher. When you purchase a Subscription or a Product, or make a donation, (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction, such as your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. The amounts due and payable by you for a Transaction through the Services will be presented to you before you place your order. If you choose to initiate a Transaction via the Services, you authorize us to provide your Payment Information to third-party service providers so we can complete your Transaction and agree (a) to pay the applicable fees and any taxes; (b) that Most High may charge your credit card or third-party payment processing account, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store or the Google Play Store) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and (c) to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. For help with Transactions made via App Providers, contact the App Provider; their terms, conditions and policies, and not ours, apply and we do not handle returns or refund requests for purchases through App Providers. For Transactions made on our Site, you will receive a confirmation email after we confirm the payment for your order. Your order is not binding until accepted and confirmed by Most High. All payments made are non-refundable and non-transferable except as expressly provided in these Terms.
6.2 We reserve the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances we deem appropriate in our sole discretion. We also reserve the right, in our sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). We will either not charge you or refund the charges for orders that we do not process or cancel.
6.3 ALTHOUGH YOU MAY TERMINATE YOUR SUBSCRIPTION AT ANY TIME, COMPANY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. Your subscription will automatically renew at the end of the subscription period, and the payment method you provided at sign-up will be automatically charged, unless you cancel your Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period. Company may change the price for the Subscriptions, from time to time, by posting the new price on its Service. Price changes for Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully. Additional Terms may apply.
6.4 From time to time, we may offer trials of Subscriptions for a specified period without payment or at a reduced rate (a “Trial”). We will require you to provide your payment information to start the Trial. UNLESS YOU CANCEL YOUR TRIAL THROUGH YOUR SUBSCRIPTION PAGE BEFORE THE END OF THE TRIAL, WE WILL AUTOMATICALLY CHARGE YOU FOR A SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RE-OCCURRING MONTHLY OR YEARLY BASIS. Your Subscription will be subject to the terms set forth in this Section.
6.5 We do our best to describe every product or service offered on our Service as accurately as possible. However, we do not warrant that product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Company shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancellation, we will issue a credit to your account in the amount of the charge. Additional Terms may apply. If a product or service you purchased from Company is not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
7.0 THIRD-PARTY SERVICES
7.1 Our Service contains content from and hyperlinks to websites, locations, platforms, and services operated and owned by third parties (“Third-Party Services”). We may also integrate third-party technologies into our Service and host our content on Third Party Services.
8.0 WIRELESS FEATURES; COMMUNICATIONS
8.2 You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us here with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Company’s ongoing business relations. You can opt-out of receiving push notifications from us at any time by adjusting the permissions in your Device or uninstalling our app. Please note that any opt-out by you is limited to the e-mail address or device used and will not affect subsequent subscriptions.
9.0 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 IMPORTANT PROVISION CONCERNING HEALTH-RELATED CONTENT. The Services do not constitute medical or other professional advice. The Services are not intended as a substitute for professional medical advice, diagnosis, or treatment. Unless otherwise clearly stated in the Services, any Content concerning or related to physical or mental health that you may find in the Services is broad in nature and in scope, describes only general principles, is not specific to you as an individual and does not take into account your personal circumstances, and may not be appropriate or relevant to your personal situation. Content in the Services is not intended to be used to diagnose, treat, cure, or prevent any medical conditions and is not a substitute for consulting with your own healthcare professionals. If you have any concerns or questions about your physical or mental health, you should consult your own healthcare professionals. Reliance on any information provided through the Services is solely at your own risk. Never disregard professional medical advice or delay in seeking it because of something that you have read, seen, or heard on our Services.
9.2 IMPORTANT PROVISION CONCERNING PHYSICAL ACTIVITY. Most High is not a health care or medical provider. The Service and Content made available herein (including, without limitation, any advice, information, exercises, or regiments) are provided for general informational purposes only and do not constitute medical advice. As with any physical activity, there is the possibility of injury. We recommend that you consult your own healthcare professional before starting this or any other physical activity to determine if it is right for your needs. By participating in physical activity through the Services, you acknowledge and agree that you do so at your own risk, are voluntarily participating, and assume all risk of injury whether physical or mental. By participating in our online classes, you are responsible for listening to your body, participating at your own pace and modifying any instructions or instructor-suggested physical adjustments to your level of ability and physical and mental condition. Stop using the Services and seek immediate medical attention if you experience any pain, illness, or discomfort. YOU EXPRESSLY WAIVE AND RELEASE MOST HIGH, INC. AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, REPRESENTATIVES, INSTRUCTORS, INDEPENDENT CONTRACTORS, AND AFFILIATES (COLLECTIVELY, THE “COMPANY PARTIES”) FROM AND AGAINST ANY CLAIMS, DAMAGES OR LOSSES, INCLUDING PERSONAL INJURY OR AND DEATH, THAT RESULT FROM YOUR USE OF THE SERVICES.
9.3 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WE ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE OF THE SERVICES OR TO STORE OR DISPLAY ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICES. THE COMPANY PARTIES EXPRESSLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND FREEDOM FROM COMPUTER VIRUS. NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE. Specifically, we make no warranty that: (a) the Services will meet your requirements, goals or needs; (b) Services access will be uninterrupted, timely, secure or error-free; or (c) any errors or deficiencies will be corrected.
9.4 We do not represent or warrant that Content available on or from the Services are accurate, complete, reliable, current or error-free or that the Services are free of viruses or other harmful components and, accordingly, you should exercise caution in the use of the Services. You download, access or otherwise obtain Content from the Service at your own discretion and risk and you are solely responsible for your use thereof, and any damages to your computing device, and any loss of data, and any other damage or harm of any kind, that may result therefrom.
9.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OR INABILITY TO USE THE CONTENT OR ANY SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF A USER’S CONTENT; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR ANY OTHER MATTER RELATING TO MOST HIGH, CONTENT OR THE SERVICES. ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO US$50 IN THE AGGREGATE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
9.6 You agree to defend, indemnify, release and hold harmless the Company Parties from and against any and all claims (including third-party claims), losses, liability, damages, costs and expenses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including reasonable attorneys’ fees and costs), arising out of or in any way connected with: (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. Further, in the event you have a dispute with one or more other users, you hereby release the Company Parties from claims, demands and damages (actual, direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of or in any way connected with such disputes. Company reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Company’s defense of any claim. You will not in any event settle any claim without the prior written consent of Company.
9.7 TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
10.0 DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
10.1 Any disputes between or claims brought by you or us arising out of or related to these Terms, the Services, the Content or your Submissions (including tort, privacy as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) shall be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) in effect at the time of arbitration except as inconsistent with this section. The arbitration shall be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings shall be held in San Francisco, California. All awards may if necessary be enforced by any court having jurisdiction.
10.2 The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce the same.
10.3 THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
10.4 All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.
10.5 You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
11.0 CALIFORNIA CONSUMER RIGHTS NOTICES
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
12.0. TERMS APPLICABLE FOR APPLE iOS
If you are using the Services through an Apple device, the following terms apply:
(a) To the extent that you are accessing the Services through an Apple device, you acknowledge that these Terms are entered into between you and Most High, and that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(b) The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Services. You acknowledge that Most High, and not Apple, is responsible for providing the Services and Content thereof.
(c) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Services.
(d) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services.
(e) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Most High, Most High, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Services fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(f) Further, you agree that if the Services, or your possession and use of the Services, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(g) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(h) When using the Services, you agree to comply with any and all third party terms that are applicable to any platform, website, technology or service that interacts with the Services.
13.0 UPDATES TO THE TERMS
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Services so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Services.
14.0 GENERAL PROVISIONS
14.1 These Terms, the Services, the Content, and the Submissions, and any disputes related to or concerning any of the foregoing (including tort, contract and privacy claims, and whether pre-contractual or extra-contractual) shall be governed by the laws of the State of California, USA. The choice of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, and the American Law Institute’s Principles of the Law of Software Contracts shall not apply and neither party shall invoke any of the foregoing in any proceeding between the parties. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms, the Services, or Content, must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
14.2 These Terms shall not be assigned, delegated, or transferred by you, in whole or in part, whether voluntary, involuntary, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent shall be void. We may at any time assign these Terms without prior consent or notice. These Terms shall be binding on, and inures to the benefit of, the parties and their respective and permitted successors and assigns.
14.3 You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Content, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we shall be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
14.4 The Terms constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements. You may be subject to additional terms and conditions that may apply when you use affiliate or third party content or services. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms shall be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company. The provisions of these Terms and any applicable Additional Terms which by their nature should survive termination of your use of the Service will survive.
14.5 Most High reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Most High may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
14.6 Company controls and operates the Service from the U.S., and Company makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
14.7 If you have any questions or comments, please send an email to us here. You acknowledge that the provision of support is at Company’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: Insight Network Inc, 101 The Embarcadero, Suite 200, San Francisco CA 94105. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Terms for Teachers:
To submit Content on the Service for public viewing, you must first register on the sitehere for teachers on the Service. All pre-recorded Content you submit will be reviewed by us prior to publication on the Service and we reserve the right to accept or reject Content in our sole discretion. Our review and publication of your Content is not an endorsement by us of your Content or a guarantee that your Content will earn revenue on the Service or attract viewers, and we make no guarantee regarding the success of your Content in attracting viewers or earning revenue. Information about appropriate formats for your Content and instructions for how to upload it are available here.
We reserve the right to determine and change the categories in which your Content appears, and the location of your Content, on the Service, at our sole discretion.
All Content, whether pre-recorded or live-stream, must comply with the Terms and our Content Guidelines and Policies. You will be solely responsible for all Content you submit in any format, and the form, content, and accuracy of your Content. We may offer live-stream capabilities for Content as part of the Services, but do not guarantee the availability or quality of live-stream Services. Your use of live-stream Services or any other features or tools we make available to Teachers is subject to the Terms and the Disclaimer of Warranties, Limitation of Liability and Indemnification provisions therein.
We reserve the right to remove any Content that we, in our sole discretion, determine does not comply with the Terms or Content Guidelines and Policies or that we otherwise determine is inappropriate for the Service. We have the right but not the obligation to monitor live-stream Content you submit, and to remove or disable access to any Content at any time and without notice. You agree that you shall not have any claim against us in connection with our rejection or removal of Content, or the unavailability of the Services. In addition, we reserve the right to terminate your access to the Service and disable any account you have established on the Service in the event that we determine that you or your Content has triggered serious or multiple user complaints, or you are in violation of these Terms for Teachers, the Terms, or the Content Guidelines and Policies. In such an event, we shall pay you the revenue your Content has earned (if any) prior to its or your removal from the Service in accordance with our then-current Earn Structure.
Content you submit on the Service can earn revenue through various avenues (our “Earn Structure”), described in our Earn FAQs. Our Earn Structure is subject to change, in our sole and absolute discretion. Please be sure to review our Earn FAQs regularly for updates.
Additional Terms for Group Administrators and Designated Enterprise Administrators:
As a Group Administrator or Designated Enterprise Administrator, you represent and warrant that you have the necessary rights, licenses, and permissions to any Content, including any intellectual property of a Designated Enterprise, used in connection with your role as Group Administrator or Designated Enterprise Administrator in any workplace group(s) or Workplace Admin Dashboard. As Group Administrator or Designated Enterprise Administrator, you agree to cooperate with Most High in provisioning Most High with any rights, licenses, and permissions needed to the Content you make available in workplace group(s) and to enforce the Terms and Policies in such workplace group(s), including violations of the Terms and Policies by users of such workplace group(s).
For Group Administrators: In the event a Designated Enterprise takes over your administrative role in any workplace group, you agree to relinquish your role as the Group Administrator in a professional and expedient manner, including in accordance with Section 4.0 of the Terms of Service above. You further agree that you will have no claim against Most High for any loss of access to or control over such workplace group, or any Content within such workplace group.
For Designated Enterprise Administrators: The Designated Enterprise Administrator will have access to a web-based interface for accessing and managing all of the workplace groups assigned under a Designated Enterprise (“Workplace Admin Dashboard”). If you register as the Designated Enterprise Administrator you represent and warrant that you have all rights, licenses, and permission from the Designated Enterprise to have access and control over the Workplace Admin Dashboard as the Designated Enterprise Administrator. You further represent and warrant that you will not use the Workplace Admin Dashboard data available to you as Designated Enterprise Administrator to do any of the following:
- Publicly display, share, or change the contact information of any user of the workplace place groups assigned to the Workplace Admin Dashboard, including their name, avatar, and email addresses, without explicit permission from the user in writing or by email.
- Share Workplace Admin Dashboard data outside the Designated Enterprise without prior written permission from each affected user.
- Use user information for any commercial purpose without express written consent from the user.
- Use user information or email address to send any correspondence unrelated to the user’s workplace groups.
- Otherwise use the Workplace Admin Dashboard and Workplace Admin Dashboard data in violation of the Terms and Policies.