Table of Contents
Terms of Service
Effective Date: July 11, 2024
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BECAUSE THEY CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND SELLERS INTERNATIONAL LLC WHICH AFFECTS YOUR LEGAL RIGHTS. PLEASE NOTE THAT THESE TERMS OF SERVICE CONTAIN A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT. FOR MORE INFORMATION, PLEASE SEE THE “DISPUTE RESOLUTION: MANDATORY CLASS AND COLLECTIVE ACTION WAIVER” SECTION.
1. Introduction.
1.1. Agreement. Sellers International LLC doing business as Quimbee (“Quimbee,” “Company,” “us,” or “we”) recommends that you read the following terms and conditions carefully. By accessing or using the Quimbee website located at www.quimbee.com, including any programs, interfaces, features, services, software applications, and any related mobile applications owned or operated by Quimbee (together, the “Service”), however accessed or used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement”). By clicking on the “Start My FREE Trial” button, the “Sign up with Google” button, or the “Sign up with Apple” button; logging in to the Service; or otherwise making use of the Service, you also agree to be bound by this Agreement, constituting a legally binding contract between Quimbee and you concerning your use of the Service. We encourage you to print this Agreement or save it to your computer for reference. As used in these Terms of Service and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms of Service.
1.2. User Types. This Agreement may apply to you individually (“Personal User”), the business or other legal entity you represent (“Entity User”), or both. As further described in the Software as a Service; Types of Users section, either a Personal User or an Entity User may also be a Group Manager, if such individual or entity registers a Group (defined in the Software as a Service; Types of Users section), or a Group User, if such individual is receiving access to the Service as part of a Group. If you are a Personal User receiving access to the Service through a Group, you acknowledge that your rights herein may be subject to the Group remaining authorized to access and use the Service. If you are using the Service or otherwise entering into this Agreement on behalf of a company or other legal entity (i.e., an Entity User), you hereby represent and warrant that you have the authority to enter into this Agreement on behalf of the Entity User. Notwithstanding the foregoing, if you are an Entity User that has a separate agreement with us, such separate agreement shall govern in the event of a conflict between this Agreement and the other agreement. However, if an Entity User has a separate agreement with us for certain Quimbee products, features, or services but not other Quimbee products, features, or services, this Agreement shall govern such other Quimbee products and services that are not already governed by the Entity User’s existing separate agreement with Quimbee. Additionally, if you are a natural person using the Service on behalf of a company or other legal entity or as a user under an Entity User’s separate agreement with us, you (as a Personal User) are nevertheless individually bound by this Agreement despite your company’s existing separate agreement with us. As used in this Agreement and unless separately identified as applicable to either a Personal User or Entity User only, “you” and “your” refer to both you individually (Personal User) and, to the extent this Agreement applies, the company on behalf of which you are entering into this Agreement (i.e., Entity User).
1.3. Paid Software and Content. In addition to the Website, Quimbee provides paid-for software as a service, along with legal-education content. Additional terms apply to your use of this software and content. See the Software as a Service section for full details.
1.4. Separate Privacy Policy. By using the Service, you represent and warrant that you have read and understood, and agree to be bound by, this Agreement and Quimbee’s Privacy Policy (the “Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy is available at quimbee.com/about/privacy.
1.4.1. Monitoring. You acknowledge that Quimbee reserves the right to, and may from time to time, monitor any and all information (including Personal Information as defined in the “User Account” section) transmitted or received through the Service for the purposes of providing you with the Service, improving the Service, and marketing the Service to you as provided in Quimbee’s Privacy Policy.
1.5. No Permission Without Agreement. If you do not understand this Agreement, or do not agree to be bound by it or by the Privacy Policy, you may not access or use the Service, and you must immediately stop accessing or using the Service.
2. Privacy Policy.
By using the Service, you consent to the collection and use of certain information about you, as specified in the Privacy Policy discussed in the “Separate Privacy Policy” section. Please visit the Privacy Policy for changes.
3. Changes to Agreement and Privacy Policy.
Internet technology and the applicable laws, rules, and regulations change frequently. Quimbee reserves the right to change this Agreement or its Privacy Policy at any time, and your continued use of the Service after we make such changes is deemed to be acceptance of those changes. It is your responsibility to review this Agreement and the Privacy Policy periodically. If at any time you find this Agreement or the Privacy Policy unacceptable, you must immediately stop accessing the Service.
4. Eligibility.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you: (1) are at least 18 years old or the age of majority in your state or province of residence; (2) are not currently restricted from the Service and are not otherwise prohibited from having an Account (defined in the “User Account” section below) related thereto; (3) will only maintain one Account at any given time; (4) will only provide accurate information to Quimbee; (5) have full power and authority to enter into these Terms of Service and doing so will not violate any other agreement to which you are a party; and (6) will not violate any rights of Quimbee or a third party. You assume all responsibility for your use of, and access to, the Service, including any unauthorized use and access to the Service through your Account. Accounts are for a single user, company, or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a company or other legal entity, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
4.2. Entity Use. If you are entering into this Agreement on behalf of an Entity User, you represent and warrant that you are authorized to act and enter into contracts on behalf of that Entity User.
4.3. No Use of Service for the Benefit of a Competitor. By using or accessing the Service, you represent and warrant that you are utilizing the Service solely to prepare for a bar examination (to be taken in pursuit of professional licensure as an attorney at law), for study in an academic program administered by an institution of higher learning (e.g., law school or a paralegal program), or for personal enrichment, and not for the benefit of any Competitor of Quimbee. For purposes of this section, a “Competitor” is a person or organization engaged or seeking to engage in a similar line of business to any in which Quimbee regularly engages, such as, but not limited to, BarBri, Kaplan, Themis, BarMax, Ameribar, Adaptibar, Crushendo, casebriefs.com, Emanuel Law Outlines, Gilbert Law Outlines, and similar enterprises.
5. No Attorney-Client Relationship.
While Company provides training materials and software for legal education, Company is not a law firm. You agree that neither this Agreement nor any other forms provided on the Service constitute an attorney-client relationship between you, on the one hand, and Company or its staff on the other. You also agree that no aspect of your relationship with Quimbee, nor your use of the Service, will give rise to any such attorney-client relationship between you and Quimbee.
6. License.
Subject to your compliance with these Terms of Service, as well as any separate agreement you enter into with Company, Company grants Personal User and Group Users (defined in the Software as a Service; Types of Users section below) a limited, non-exclusive, non-transferable license to access the Service: (a) in the case of Personal Users, for your own personal use only; and (b) for Group Users, for your own personal use and to administer the Group. This license is revocable, and you may not sub-license it. Except for the foregoing limited license, all rights in the Service are reserved by Company. Except as expressly authorized herein, no part of the Service may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, performed, displayed, stored, or exploited for any purpose without the prior express written consent of Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company, any licensor of Company, or any other third party, except as expressly stated in this Agreement. The license granted in this Section is conditioned on your compliance with this Agreement. Your rights under this Section will immediately terminate if, in the sole judgment of Company, you have breached or violated any provision of this Agreement.
7. Software as a Service; Types of Users.
Company provides software as a service and legal-education content (together, the “SaaS”) as part of the “Service”). The SaaS includes, but is not limited to: case briefs, case brief videos, multiple-choice questions, essay practice exams, subject-matter outlines, online courses comprised of related video lessons, flashcards, various materials to prepare for various states’ bar examinations, continuing legal education (CLE) courses, and similar content.
7.1. Individual Users. Personal Users may sign up for the SaaS through the Website. Personal Users agree to be bound by this Agreement, Company’s Privacy Policy, and any additional terms displayed during the SaaS signup process (“SaaS Terms”). Except as set forth in the “Entity Users” section below, in the case of any conflict between the SaaS Terms and this Agreement, the SaaS Terms shall control.
7.2. Entity Users. Entity Users, such as law firms and law schools, may agree to a separate contract governing their and their users access and use of the SaaS (to the extent applicable, an “Institutional Agreement”). The Institutional Agreement, if applicable, complements this Agreement, the Company’s Privacy Policy, and the SaaS Terms, but if there is any conflict between agreements, the terms of the Institutional Agreement shall prevail. Personal Users who access the SaaS or other parts of the Service pursuant to an Institutional Agreement are also bound individually by this Agreement and Company’s Privacy Policy. Entity Users will also be deemed to be Group Managers, as further described below.
7.2.1. Personal Users’ Access to Other Quimbee Products. Entity Users understand and agree that Personal Users with access to the SaaS under an Institutional Agreement may choose to access Quimbee products, features, and services other than those specifically included in the SaaS under the Institutional Agreement, such as by purchasing Quimbee products not included under the Institutional Agreement (e.g., Quimbee Bar Review or Quimbee CLE products) or making use of free features such as “Questions and Answers” or “Class Pages” (if available). Entity Users may not prohibit Personal Users from purchasing additional Quimbee products at their own expense or making use of additional Quimbee products, features, or services not included under the Institutional Agreement. Entity Users agree that if they choose to cancel their Institutional Agreement, Quimbee may communicate the cancellation to Personal Users with access under the Institutional Agreement. Further, Entity Users agree that Personal Users who had access under an Institutional Agreement may retain their data and reactivate their Accounts on individual Subscription (defined in the “Fees” section below) plans after the Entity User’s access terminates.
7.3. Groups.
7.3.1. Groups. The Service enables you to sign-up or register for the Service as a group (“Group”), where your registration provides access to the Service to more than one Personal User (“Group Users”). Groups will be named after the Group Manager (e.g., John Smith’s Group). A single Group Manager may create only one Group; Group Managers seeking to create additional Groups must contact Company for prior approval at [email protected]. Groups may be created only for Group Users at the same law school, organization, or entity, and must share a .edu email domain. Groups may not be created for Group Users from different law schools, organizations, or entities; Group Users with different email domains; or Group Users without a .edu email domain, without prior written approval from Company at Company’s sole discretion. If you are creating a Group on behalf of a law school or other organization or entity, please contact support at [email protected] to verify and have the Group’s name updated to that of your school, organization, or entity. Any reduction in the number of authorized Group Users shall not take effect until the subsequent Subscription billing cycle. A Group must have at least two (2) Group Users.
7.3.2. Group Managers. Either Personal Users or Entity Users are able to register a Group, and such Personal User or User Entity shall be deemed a “Group Manager” under these Terms of Service, in addition to being a Personal User or Entity User, as applicable. Group Managers are responsible for the fees owed by the Group. The Group Manager is responsible for administering the Group, which means managing billing and payment methods, selecting the Group’s Subscription plan, and adding or removing Group Users within the Group. A Group can only have one Group Manager, and the Group Manager is counted as a Group User with respect to counting the total number of Group Users within the Group. Other than the Group Manager, Group Users cannot administer the Group and only have access to content and features on the Service that the Group Manager has selected for the Group. Device limits apply to all Group Users.
7.3.3. Personal Users Access to Other Quimbee Products. Group Managers understand and agree that Personal Users with access to the SaaS under a Group subscription plan may choose to access Quimbee products, features, and services other than those specifically included in Group subscription plan, such as by purchasing Quimbee products not included under the Institutional Agreement (e.g., Quimbee Bar Review or Quimbee CLE products) or making use of free Quimbee features such as “Questions and Answers” or “Class Pages.” Group Managers may not prohibit Personal Users from purchasing additional Quimbee products at their own expense or making use of additional Quimbee products, features, or services not included under the Group Subscription plan.
7.3.4 Prohibition on Resale. You may not sell, resell, sublease, assign, license, sublicense, or share Group seats. By “sell” or “resell,” we mean that you may not purchase Group seats and then offer those group seats for sale. A seat is the right of an individual Group User to utilize the Service under a Group Plan. For example, a Group Manager may not purchase seats for $77 per user per year and then offer to sell those seats to Group Users for $100 per user per year. This prohibition on resale is not intended to prohibit a Group Manager from collecting payments from the Group Users for the sole purpose of reimbursement. For purposes of this Section, “reimbursement” means repayment of the actual per-seat cost, plus sales tax and processing fees. Any payment above actual cost constitutes resale and is prohibited.
7.4. Software Updates. One major benefit of SaaS is that Company’s software is continually updated. To deliver this benefit, Company reserves the right, in its sole discretion, to update, modify, or remove features, functionality, or other aspects of its SaaS at any time. You must accept all software updates to ensure the benefit of the SaaS.
7.5. Downtime. While Company takes commercially reasonable measures to keep its SaaS continuously available, the SaaS may be subject to unscheduled downtime. This Agreement does not include a Service Level Agreement; see also the “No Warranties” section. In addition, Company may take the SaaS offline briefly for occasional maintenance. When possible, Company will reasonably notify subscribers of these scheduled downtimes in advance.
8. No Reliance on Third Party Content.
8.1. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will Company be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
8.2. Some users who post content to the Service are members of legal and other licensed professions (collectively, “Professional Contributors”). Content posted by Professional Contributors should not be relied on as a substitute for advice from a professional that is appropriate for your specific situation. Ethics rules differ by state or location, and it is the responsibility of Professional Contributors to determine and provide disclaimers appropriate for their profession and the content provided. COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATING TO OR IN CONNECTION WITH CONTENT POSTED TO THE SERVICE BY PROFESSIONAL CONTRIBUTORS.
9. ASSUMPTION OF RISK; RELEASE.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICE. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY QUIMBEE AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUB-LICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “COMPANY PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, LOSS OF DATA, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR ACCESS OR USE OF THE SERVICE, INCLUDING BY THIRD PARTIES ACCESSING OR USING THE SERVICE THROUGH YOUR ACCOUNT.
10. User Account, Accuracy, and Security.
10.1. User Account. To use the Service, you must register and create a user account (“Account”). An individual is permitted to create only one Account. During the Account-creation process, you will be asked to provide information that personally identifies you (“Personal Information”). If you are entering into this Agreement on behalf of an Entity User, you may also be required to provide information about such entity.
10.2. Account Information Accuracy. You represent and warrant that all user information you provide in connection with your Account and your use of the Service is current, complete, and accurate, and you agree that you will update that information as necessary to maintain its completeness and accuracy by updating your personal profile settings in your Account, or by submitting a message through the following webpage quimbee.com/contact or contact by email at [email protected]. It is your responsibility to keep your Account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us, including information provided through your Account. You agree that you will not submit any content that is untrue or incorrect, or which you do not lawfully own or control (including without limitation any Account, username, likeness, or profile) such as, without limitation, to willfully and credibly impersonate another person, whether actual or fictitious. As a non-exhaustive example, you agree that you will not upload a profile image that is another person’s likeness. If Company believes in its sole discretion that the information you provide is not current, complete, or accurate, Company has the right to refuse you access to the Service, or to terminate or suspend your access at any time, or both. For additional information on the requirement to provide complete and accurate information, please see the “Consent to Receive Electronic Communications from Company and Feedback” section of Company’s Privacy Policy titled “User Ability to Access, Update, and Correct Personal Information.”
10.3. No Pseudonyms. You must use your real name on Quimbee; pseudonyms are not allowed. Any use of a pseudonym violates the “Account Information Accuracy” section and is cause for suspension or deletion of your Account. No refunds will be issued in such cases.
10.4. Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You may access your Account on up to two (2) devices (e.g., a laptop and a tablet). Should you attempt to access your Account on a third device, you will be asked to provide a phone number. We will send you a security code via SMS message to the phone number you provided to us, which you must enter to verify your identity. You must then deauthorize one of your previous devices before you may access your Account on a third device. (Please note that if you access your Account from two (2) different web browsers, each web browser will be treated as a separate device.) You are entirely responsible for maintaining the confidentiality of your Account’s security information, including your username and password. You may not use the username or password of any other person or any other Account, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify Company immediately of any unauthorized use of your Account. Company shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your Account, regardless of knowledge.
10.5. Free Trial. Only one free trial of a Quimbee product, feature, or service is permitted per person. You may not create additional Accounts (such as through the use of pseudonyms and alternate email accounts) for purposes of claiming additional free trials. Company reserves the right to terminate service to anyone who violates this policy. During the free trial, you may access up to 10 case briefs. With respect to free trials for a Group, only the Group Manager shall have access to the Quimbee product, feature, or service during the trial period.
11. Consent to Receive Electronic Communications from Company and Feedback.
11.1 By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you expressly consent to receive electronic and other communications from Company, over the short term and periodically over the long term, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to [email protected]. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
11.2. By sending Company or submitting to the Service any ideas, comments, suggestions, questions, information, ideas, concepts, know-how, or techniques, or other material (collectively, “Feedback”), you grant Company an unrestricted, royalty-free, worldwide, irrevocable license to use, copy, reproduce, display, archive, store, publish, perform, modify, transmit, create derivative works from, and distribute such Feedback (including your name and any other information in connection with Feedback) in any manner, form, media, software, or technology of any kind now existing or developed in the future, including, but not limited to, in connection with Company’s business, and you also agree that Company shall be free to use the Feedback for any purpose and without any obligation, credit, or remuneration to you. You agree that no Feedback submitted by you to Company will violate any personal or proprietary right of any third party anywhere in the world (including, without limitation, copyright, trademark, patent, or trade secret rights). You agree that you shall remain solely liable for the Feedback submitted by you to Company. You also agree that Company is under no obligations of confidentiality, whether express or implied, with respect to any Feedback you send to Company or submit to the Service.
12. Fees.
12.1. Subscription Fees. As discussed in the “Software as a Service” section, Quimbee offers a paid subscription service (“Subscription”) as part of the Service.
12.2. Automatic Billing. Subscriptions consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. When you purchase a Subscription, you expressly acknowledge and agree that: (i) Company’s third party payment processor is authorized to automatically charge your payment method at regular intervals as described for the Subscription during the checkout process until you cancel the Subscription, and (b) the Subscription is continuous until you cancel it, or we suspend or stop offering the Subscription or the underlying product(s), feature(s), or service(s).You must keep a valid payment method on file in your Account to automatically pay for all recurring charges and fees. You will continue to be charged the payment method on file in your Account for applicable recurring payments until the Subscription is canceled, and any and all outstanding payments have been paid in full.
12.3. Automatic Renewal. Unless you cancel your Subscription (see the “Cancellation” section), your Subscription will renew automatically at the end of its term. Please see the “Cancellation” section and, if applicable, your Institutional Agreement.
12.4. Cancellation.
12.4.1. How to Cancel. To cancel your Subscription, go to your Account, click on quimbee.com/settings, and then click the “Cancel” link. Alternatively, you may cancel your Subscription by contacting Company by emailing [email protected]; clicking on the Contact widget at the lower-right of any page on the Service; or using the contact form in Quimbee’s iPhone, iPad, and Android apps. Your Subscription cancellation is not effective until a Company representative confirms it via e-mail to your e-mail address on file in your Account. For more information on how to cancel your Subscription, please visit our knowledge-base article.
12.4.2. Effect of Cancellation. Once your Subscription (or Account) cancellation is confirmed by Company via e-mail, then Company will not bill you further, but Company will not refund your payment method on file in your Account for any remainder of that term. Company will terminate your access to the SaaS at the end of your billing term.
12.4.3. Additional Termination Terms. As set forth in the “Personal Users’ Access to Other Quimbee Products” section, an Institutional Agreement, if applicable, may contain additional termination terms, which shall govern in the event of a conflict with this Agreement.
12.4.4. Terms of Service Still Apply. These Terms of Service and the Privacy Policy still apply, in full, after your Subscription ends.
12.5. Quimbee Bar Review Money-Back Guarantee. If you purchase an eligible Quimbee Bar Review product (currently, Quimbee Bar Review Premium or Quimbee Bar Review+), Company guarantees that you will pass the bar on your first try after completing the Quimbee Bar Review+ or Premium program, or Company will issue a refund of your actual purchase price for Quimbee Bar Review+ or Premium. To be eligible for the money-back guarantee, you must: (1) take the bar exam in a covered jurisdiction (currently, this includes all Uniform Bar Examination (UBE) jurisdictions, California, and Florida); and (2) complete at least 75% of your Quimbee Bar Review+ or Premium course by the first day of bar-exam administration for your selected exam date. Please note that attempts to fraudulently increase your completion percentage without making a bona fide effort to complete the coursework shall void this guarantee at Quimbee’s sole discretion. To claim the money-back guarantee, you must submit to Company valid proof of failure (e.g., a copy of the official notification email or a scanned or photocopied image of your official physical letter) to [email protected] within thirty (30) days of receiving Quimbee’s results survey email. If you are eligible for the money-back guarantee and fail the bar exam, Company will refund 100% of your actual purchase price (less any applicable discounts or credits) for the digital Quimbee Bar Review+ or Premium course back onto your original payment method. If Company is unable to refund your purchase price back to the original payment method, Company may, in its sole discretion, issue a refund by paper check mailed to your mailing address on file in your Account. Please note that if request that Quimbee delete your account, and Quimbee does so (under any legal or contractual requirement), you waive your right to claim the money-back guarantee in the future.
12.5.1. Retakes of Quimbee Bar Review or Quimbee MBE Review. If you do not pass the relevant bar examination (be it the Uniform Bar Examination (UBE) or a covered state-specific bar examination, currently Florida or California) after taking Quimbee Bar Review or Quimbee MBE Review, you may retake the course as many times as it takes you to pass the bar exam in the same jurisdiction as that in which you initially sat for the bar exam after taking Quimbee bar review.
For example, if you initially sit for the Florida bar exam, after taking Quimbee bar review, and fail it, your free repeat of the course applies only to a future administration of the Florida bar exam. If you try to sit for the bar exam in another jurisdiction (for instance, Nevada) after failing, then you must pay the full price to retake Quimbee bar review with respect to the bar exam in that other jurisdiction.
For the free retake of Quimbee Bar Review to apply, you must provide proof of failure (e.g., a copy of the official notification email or a scanned or photocopied image of your official physical letter) within thirty (30) days of receiving Quimbee’s results survey email in order to retake the course. You may retake the course even if you are not eligible for Quimbee’s money-back guarantee (e.g., you may retake the course even if you did not complete at least 75% of your Quimbee Bar Review course). Please note that if request that Quimbee delete your account, and Quimbee does so (under any legal or contractual requirement), you waive your right to claim a free retake in the future.
12.5.2. Deferrals of Quimbee Bar Review or Quimbee MBE Review. You may defer your Quimbee Bar Review or Quimbee MBE Review course at any time up until your exam date. You will lose access to the current course at that time and may not begin studying until the unlock date for your new exam date. The unlock date is typically thirty (30) days before the start date for the course. Please note that access to your Quimbee course is provided to you and you alone. Company reserves the right to require documentation that you are registered for a future exam date or refuse deferrals on suspicion of Account sharing.
12.5.3. Quimbee Bar Review and Quimbee MBE Review Print Packages. Please note that Quimbee’s money-back guarantee does not apply to the print package. Likewise, all purchasers eligible for a deferral or retake of the digital course will receive only one print package. You may purchase an additional print package for your new exam date by contacting customer support at [email protected].
12.6. Reserved Rights for Company’s Fees. Company reserves the right, in its sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used Subscription periods.
12.6.1. Company’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including collecting regularly recurring fees from you, shall not affect Company’s later ability to exercise those rights or to require performance at any later time. Company’s waiver of your breach shall not constitute a waiver of any later breach by you, or by any other user of the Service. By signing up for a Subscription or otherwise submitting a payment method on the Service, you authorize Company or its payment processor to charge Company’s fees to the payment method you provide, in addition to applicable sales, taxes, and fees as itemized to you at, or prior to, checkout.
13. Third Party Websites.
The Service may include links to the websites of third parties (“Third Party Websites”), some of whom may have established relationships with Company and some of whom may not. Company does not have control over the content and performance of Third Party Websites. Company has not reviewed, and cannot review or control, all of the material, including computer software, or other goods or services, made available on or via Third Party Websites. Accordingly, Company does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. COMPANY DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR ACCESS OR USE OF THIRD PARTY WEBSITES.
14. Your Responsibility for Defamatory Comments.
14.1. If you post defamatory statements to the Service, persons harmed by those statements may sue you and seek damages. Under Section 230 of the Communications Decency Act of 1996, Company will not be held liable for your statements that are defamatory or otherwise legally actionable.
14.2. If you raise or file any claim against Company for conduct that a court of competent jurisdiction later finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent, you agree to fully and immediately compensate Company for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate Company for any such claim, you agree and authorize Company to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
15. Objectionable Content.
You agree that you shall not use the Service to upload, post, transmit, display, perform, or distribute any content, information, or materials that: (a) are libelous, defamatory, abusive, threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit Personal Information from or exploit in a sexual or violent manner anyone under the age of 18; (d) incite, encourage, or threaten physical harm against another; (e) promote or glorify racial intolerance, use hateful and/or racist terms, or signify hate toward any person or group of people; (f) glamorize the use of illegal substances and/or drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other Company agreement or policy, including without limitation Company’s Privacy Policy; (i) disclose another’s personal, confidential, or proprietary information; (j) are false or fraudulent; (k) contain images or videos of individuals captured or posted without their consent; (l) promote self-destructive behavior (including without limitation eating disorders or suicide); or (m) are generally offensive, rude, mean-spirited, or in bad taste, as determined by Company in its sole discretion (collectively, “Objectionable Content”). Company disclaims any perceived, implied, or actual duty to monitor any and all content made available through the Service, and specifically disclaims any responsibility or liability for information provided on the Service. Without limiting any of its other remedies, Company reserves the right to terminate your use of the Service or your uploading, posting, transmission, display, performance, or distribution of Objectionable Content. Company, in its sole discretion, may delete any Objectionable Content from its servers. You agree and acknowledge that Company will cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws, including in connection with Objectionable Content.
16. Prohibited Uses.
Company imposes certain restrictions on your use of the Service. Any violation of this Section may subject you to civil and/or criminal liability. Company reserves the right to take preventative or mitigating measures if it believes, in its sole discretion, that you may be engaging in prohibited uses of the Service. Such measures include, but are not limited to: throttling your account or limiting access if you exceed daily thresholds of content accessed (e.g., Company may block you from accessing further case briefs for a time if you access more than 50 briefs in a single day), cancelling your account, or pursuing all available legal recourse. Please note that if your account is cancelled based on this provision, no full or partial refunds will be given. The following are expressly prohibited:
16.1. harassing or stalking any person, or contacting any person who has requested not to be contacted;
16.2. providing false, misleading, or inaccurate information to Company or to any other person in connection with the Service;
16.3. impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity;
16.4. modifying any advertisement posted through the Service;
16.5. harvesting or otherwise collecting information about users, including email addresses and phone numbers;
16.6. without express written permission from Company, using or attempting to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information or content from the Service for any use, including without limitation use on Third Party Websites;
16.7. accessing content or data not intended for you, or logging into a server or Account that you are not authorized to access;
16.8. attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization;
16.9. interfering or attempting to interfere with the use of the Service by any other user, computer, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities;
16.10. using the Service to send unsolicited email, including without limitation promotions or advertisements for products, features, or services;
16.11. forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers);
16.12. while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising;
16.13. attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties (defined in the “Assumption of Risk; Release” section above) in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable;
16.14. creating additional Accounts to promote your (or another’s) business, or causing others to do so;
16.15. paying anyone for interactions on the Service;
16.16. selling, sublicensing, distributing, displaying, storing, or transferring content and/or other materials available through the Service, including, without limitation, case briefs, in bulk or in any way that could be used to replace or substitute for the Service, in whole or in part or as any component of any material offered for sale, license, or distribution to third parties;
16.17 accessing, using, or attempting to access or use the Service to do anything that might harm Quimbee or a third party (examples include: (i) using the Service to violate any applicable law, including export controls and sanctions, or Quimbee’s or anyone else’s proprietary or legal rights, including intellectual property rights; or (ii) attempting, encouraging, or supporting anyone else’s attempt to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Service, or any content of the Service, or otherwise make any unauthorized use of the Service);
16.18 without Quimbee’s prior written consent, using robots, spiders, scripts, service, software, or any manual or automatic device, tool, or process designed to data mine or scrape any content or information on the Service, or otherwise using, accessing, or collecting any content, data, or information from the Service using automated means;
16.19 without Quimbee’s prior written consent, using the Service or any content on the Service to develop any software program, and for this purpose, developing any software program includes (but is not limited to) training any machine learning or artificial intelligence system, refining outputs (such as by manually comparing to Quimbee content), and the like;
16.20 caching or archiving any content on the Service, except in the case of a public search engine using spiders to create search indices; and
16.21 otherwise using the Service for any reason for which the Service is not intended.
17. Intellectual Property.
Quimbee may enable you to add posts, texts, photos, links, ratings, reviews, survey responses, and other files and information to share with Quimbee and others subject to any applicable Community Rules. All material that you share, upload, publish, or display to others, including your likeness, via the Quimbee platform will be referred to collectively as “Your Content.” By submitting, posting, or displaying Your Content on Quimbee, you grant Quimbee a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, display and distribute, translate, communicate and make available to the public, and otherwise use Your Content in connection with the operation or use of Quimbee or the promotion, advertising or marketing of Quimbee or our business partners, in any and all media or distribution methods (now known or later developed), including via means of automated distribution, such as through an application programming interface (also known as an “API”). You agree that this license includes the right for Quimbee to make Your Content available to other companies, organizations, business partners, or individuals who collaborate with Quimbee for the syndication, broadcast, communication and making available to the public, distribution or publication of Your Content on Quimbee or through other media or distribution methods. This license also includes the right for other users of Quimbee to use, copy, reproduce, adapt, modify, create derivative works from, publish, transmit, display, and distribute, translate, communicate and make available to the public Your Content, subject to the Terms of Service. Furthermore, Company may disclose Your Content if: (a) Company determines that disclosure is necessary to enforce these Terms of Service, respond to claims that any of Your Content violates the rights of third parties, or protect the rights, property, or personal safety of Company, its users, and the public; or (b) Company’s legal counsel determines that appropriate legal process requires disclosure. You also acknowledge and agree that you are not guaranteed access to Your Content at any time. Without limiting the generality of the foregoing, you authorize Company to include Your Content in a searchable format that may be accessed by users of the Service and Third Party Websites, provided, however, that Company shall have no liability for Your Content that can be public and visible on the Service, Third Party Websites, or search engines, including after deletion of Your Content by you or Company.
Please note that if you provide your bar exam results to Quimbee as part of a post-bar survey or otherwise, Quimbee may anonymize and aggregate your results with those of other users for purposes of sharing pass rates on the Service, in promotional materials, and in advertising and marketing efforts. However, Quimbee will not make public your name or individual results, provided, however, that if you share those results in the text or body copy of a review of Quimbee you share or publish on the Service, such results (in addition to your rating, text review, first name, and last initial) will be Your Content and subject to this Section. Except as expressly provided in these Terms of Service, the license in this Section will not confer the right for you to use automated technology to copy or post questions and answers or to aggregate questions and answers for the purpose of making derivative works. If you do not wish to allow your answers to be translated by other users, you can globally opt out of translation in your Account profile settings or you can designate certain answers not for translation.
17.1. Intellectual Property of Group or Institutional Users. Entity Users and Group Managers agree and understand that Personal Users with Quimbee access via their Entity or Group may add Your Content to share with others. All Your Content that a Personal User uploads, publishes, or displays to others via the Quimbee platform belongs to that Personal User and is subject to the terms of this Section. Intellectual Property above. You agree as an Entity User or Group Manager that you have no claim of ownership or right in any such Your Content posted by a Personal User on your Group plan or Institutional Agreement. You agree that you have no right to demand deletion of such Your Content and that, to be honored, any request for deletion of Your Content must originate with the Personal User. Similarly, you agree that any exercise of privacy rights (as explained further in the Privacy Policy) must, to be honored, originate with the Personal User.
17.2. Compliance with Law. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others or violation of laws and regulations in connection with any content, information, or other materials that you post or share on the Service.
17.3. Trademarks. Quimbee and the Quimbee logo (collectively, the “Company Marks”) are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Company.
17.4. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Quimbee logo, design, text, graphics, and other files, along with their selection, arrangement, and organization, are either owned by Company or are the property of Company’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials. You may not remove or obscure any copyright notices or other notices utilized in any content and other materials available through the Service. You, or your licensors, as applicable, retain ownership of the copyright and other intellectual property in Your Content, subject to the non-exclusive rights granted above.
17.5. DMCA Policy.
17.5.1. As Company asks others to respect its intellectual property rights, Company respects the intellectual property rights of others. Company follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).
17.5.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify Company by email regarding DMCA takedown notice (“Infringement Notice”), providing the information described below. If Company takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to Company.
17.5.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. If you are not sure whether content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
17.5.4. The DMCA requires that all Infringement Notices must include the following:
17.5.4.1. A signature, electronic or physical, of the copyright owner or a person authorized to act on the owner’s behalf;
17.5.4.2. An identification of the copyright claimed to have been infringed;
17.5.4.3. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Company to find and positively identify that material;
17.5.4.4. Your name, address, telephone number, and email address; and
17.5.4.5. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and (ii) under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on the owner’s behalf.
17.5.5. Infringement Notices should be sent to [email protected] with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.
17.5.6. Company will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
17.5.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen Database (lumendatabase.org), previously known as the Chilling Effects Clearinghouse.
17.6. Notification of Infringement. You shall immediately notify Company if you discover or are informed of any infringements or potential infringements of Company’s intellectual property rights including, without limitation, any unauthorized use of the Service, or respective portions of content and materials thereof, by third parties.
18. Disclaimers; Limitation of Liability.
18.1. No Warranties. Company, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Company nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free.
18.1.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL CONTENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY, OR ACCURACY OF INFORMATION. QUIMBEE DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER, OR THAT ERRORS OR DEFECTS, WHETHER KNOWN OR UNKNOWN, WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT QUIMBEE IS NOT LIABLE FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY OF YOUR CONTENT OR PERSONALIZATION SETTINGS RELATED TO THE SERVICE. QUIMBEE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
18.2. Your Responsibility for Loss or Damage; Backup of Data.
18.2.1. You agree that your use of the Service is at your sole risk. You will not hold Company or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
18.2.2. Furthermore, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your Account. You agree and understand that it is your responsibility to back up your data to your personal computer or external storage device and to ensure such backups are secure.
18.3. LIMITATION OF LIABILITY. YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY (INCLUDING ITS LICENSORS AND SUPPLIERS) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INDIRECT OR DIRECT LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT COMPANY AND ITS LICENSORS AND SUPPLIERS SHALL BE IN NO WAY RESPONSIBLE FOR ANY ACTION TAKEN AGAINST YOU BY ANY THIRD PARTY RELATED TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, CURRENT OR POTENTIAL EMPLOYERS TAKING ADVERSE ACTIONS AGAINST YOU, INSTITUTIONS OF HIGHER EDUCATION PURSUING CLAIMS FOR VIOLATIONS OF HONOR CODES OR OTHER SCHOOL POLICIES, ETC. IN NO EVENT SHALL COMPANY OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF COMPANY, COMPANY’S LICENSORS OR SUPPLIERS, COMPANY PARTIES, OR QUIMBEE USERS, OR THEIR AGENTS OR REPRESENTATIVES, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO COMPANY OR ITS LICENSORS OR SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE. FURTHERMORE, IN NO EVENT SHALL COMPANY’S OR ITS LICENSORS’ OR SUPPLIERS’ TOTAL CUMULATIVE LIABILITY EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID COMPANY FOR YOUR ACCESS OR USE OF THE SPECIFIC PRODUCT, FEATURE, OR SERVICE WITHIN THE SERVICE IN THE PRIOR THREE (3) MONTHS, AND (B) THE SUM OF ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY REPRESENT A REASONABLE ALLOCATION OF RISK AND ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
18.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Company or between you and any of Company’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Company’s licensors, suppliers, and third-party vendors are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this Section.
19. Your Representations and Warranties.
You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Company policies as amended from time to time, and with any applicable laws or regulations.
20. Indemnity by You.
20.1. Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless Company and the Company Parties (defined in the “Assumption of Risk; Release” section above) (collectively, the “Indemnitees”) from and against any and all Claims (defined as any claim, demand, loss, or assertion of liability, by any third party, in any form or forum), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Company, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Company or Company Parties, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company, the Company Parties, or the Service of any information or data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
20.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Indemnitees.
20.3. Without limitation, the Indemnitor also agrees to compensate Company for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of the “Prohibited Uses” section, including, without limitation, any suspension of affiliate accounts or affiliate payments attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company or Company Parties under any affiliate advertising agreement.
21. Dispute Resolution: Mandatory Class and Collective Action Waiver.
Important: This Section limits certain legal rights and includes a waiver of the right to participate in any form of class or representative action, and limits your ability to obtain certain remedies and forms of relief. Please review carefully.
21.1. You agree that you will not sue Quimbee as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class action lawsuit against Quimbee. Nothing in this Section, however, limits your rights to bring a lawsuit as an individual plaintiff.
21.2. If Company takes legal action against you in connection with any actual or suspected breach of this Agreement, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys’ fees.
21.3. You understand, acknowledge, and agree that any legal proceeding arising out of or relating to these Terms of Service, your use of the Service, or your relationship with Quimbee shall have, as its forum, a state or federal court of competent jurisdiction in the State of Florida. You hereby waive any objection to personal jurisdiction or venue in the state or federal courts of the State of Florida.
21.4. In any legal proceeding arising out of or relating to these Terms of Service, your use of the Service, or your relationship with Quimbee, the governing law (including substantive and procedural laws) shall be that of the State of Florida, without regard to Florida’s choice-of-law provisions.
21.5. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY LAWSUIT AGAINST QUIMBEE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
22. Termination.
22.1. By Company. Without limiting any other provision of this Agreement, Company reserves the right to, in Company’s sole discretion and without notice or liability, deny or terminate use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
22.2. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Company notice of your intention to do so, in the manner required by the “Notices” section.
22.3. Effect of Termination.
22.3.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to access or use the Service. Upon termination, Company may, but has no obligation to, in Company’s sole discretion, rescind any services and/or delete from Company’s systems all your Personal Information (defined in the “User Account” section above) and any other files or information that you made available to Company or that otherwise relate to your use of the Service. Upon termination, you shall stop any and all access and use of the Service.
22.3.2. After termination, Company reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
22.4. Legal Action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
22.5. Survival. Upon termination, all rights and obligations created by this Agreement will terminate, except that the following Sections will survive any termination of this Agreement: Section 1.1 (Agreement), Section 2 (Privacy Policy), Section 4 (Eligibility), Section 6 (License), Section 8 (No Reliance on Third Party Content), Section 9 (Assumption of Risk; Release), Section 10 (User Account, Accuracy, and Security), Section 11 (Consent to Receive Electronic Communications from Company and Feedback), Section 13 (Third Party Websites), Section 14 (Your Responsibility for Defamatory Comments), Section 15 (Objectionable Content), Section 16 (Prohibited Uses), Section 17 (Intellectual Property), Section 18 (Disclaimers; Limitation of Liability), Section 19 (Your Representations and Warranties), Section 20 (Indemnity by You), Section 21 (Dispute Resolution; Mandatory Class and Collective Action Waiver), Section 22 (Termination), Section 23 (Notices), and Section 25 (General), as well as any other provisions contained in any Section which by their terms impose continuing obligations.
23. Notices.
All notices required or permitted to be given under this Agreement must be in writing.
23.1. Company shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Company, e.g., via an Account on the Service. Subject to the “Consent to Receive Electronic Communications from Company and Feedback” section, you agree that any notice received from Company electronically satisfies any legal requirement that such notice be in writing.
23.2. You bear the sole responsibility of ensuring that your email address in your Account is accurate and current, and notice to you shall be deemed effective upon the sending by Company of an email to that address.
23.3. You shall give any notice to Company by email to [email protected].
24. App users.
If you are accessing the Service through a mobile application from a third-party mobile application store (i.e., the Apple App Store or the Google Play Store) (“App Store”), you and Company agree to the following additional terms:
24.1. Company and you acknowledge that this Agreement is concluded between you and Company only, and not with the provider of the App Store (“Provider”), and Company, not Provider, is solely responsible for the Service. Company and you agree to be bound by the relevant App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the relevant App Store Terms of Service) (capitalized terms in this section have the definitions given to them in the relevant App Store Terms of Service unless otherwise defined herein).
24.2. You may only access the Service on a device that you own or control and only as permitted by the Usage Rules set forth in the relevant App Store Terms of Service.
24.3. To the extent set forth in this Agreement or required by applicable law, Company is solely responsible for providing any maintenance and support services with respect to the Service. You acknowledge and agree that Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
24.4. Company, not Provider, is solely responsible for any Quimbee product warranties set forth in this Agreement, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Service application to conform to any applicable warranty in this Agreement, you may notify Provider, and Provider will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Provider will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, if any, will be Company’s sole responsibility, to the extent not disclaimed herein.
24.5. Company and you acknowledge that Company, not Provider, is responsible for addressing any claims by you or any third party relating to the Service or your use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
24.6. Provider shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Service or your use of the Service infringes any third party’s intellectual property rights.
24.7. If you send SMS messages through Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
24.8. If you authorize Company to access your Address Book on your mobile device, you acknowledge and agree that Company may access and use such Address Book data as provided in the Privacy Policy.
25. General.
25.1. Entire Agreement. This Agreement constitutes the entire agreement between Company and you concerning your use of the Service.
25.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a court of competent jurisdiction, that decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a court of competent jurisdiction to be invalid, void, or unenforceable.
25.3. Amendments. This Agreement may be modified only by a written amendment signed by an authorized executive of Company, or by the unilateral amendment of this Agreement by Company along with the posting by Company of that amended version. Any changes to this Agreement will be effective upon Company’s posting of the notice; provided that these changes will be prospective only and not retroactive. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE, YOU ARE ENTERING INTO A NEW AGREEMENT WITH COMPANY ON THE THEN APPLICABLE AGREEMENT AND YOU AGREE THAT COMPANY MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM, OR A LINK TO THEM, ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH COMPANY ELECTS), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NEW AGREEMENT HAS BEEN POSTED CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. If you do not agree to the changes, you should not use the Service or any services offered through the Service after the effective date of the changes. Company suggests that you revisit this Agreement regularly to ensure that you stay informed of any changes.
25.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
25.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Company. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
25.6. Independent Contractors. You and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
25.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Company’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 8 (No Reliance on Third Party Content), Section 13 (Third Party Websites), Section 18.4 (Application of Disclaimers).
25.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Company and Company’s licensors and suppliers, and would therefore entitle Company or Company’s licensors or suppliers, as the case may be, to injunctive relief.
25.9. Interpretation. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
25.10. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.