Effective Date: July 7, 2021
TheseTerms of Service (the “Terms”) and our Privacy Policy set forth the rights and responsibilities of users and customers that use the website, services, reports, products and platform (collectively, the “Services”) made available by The Holding Co. (“The Holding Co.”,“we,” “our” or “us”). Please read these Terms carefully. If you do not agree to theseTerms, please do not use the Services. If you are using the Services on behalf of an organization, you are agreeing to be bound to these Terms as a user or customer on behalf of that organization, and you represent and warrant that you have the authority to agree to these Terms on the organization's behalf. In that case, “you”or “your” will refer to that organization in these Terms.
YOUR ACCOUNT
Before using the Services, you may be required to register with us or create an account, either by way our registration process or through a third party service such as Google. If you register by way of a third party service, personal information you provided to that third party, such as your name, email address and other information your account and privacy settings on that service allow us to access, will be used to create your account with us.
COMPLIANCE
You may only use the Services in compliance with applicable federal, state, local and international laws, rules and regulations and our Acceptable Use Policy (“AUP”) described below. You agree that we have the right to investigate violations of these Terms and may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
You are solely responsible for your registration and account information and any data that you provide to us or via the Services (“Account Data”), and agree that you own or have the necessary rights, permissions and consents to all of your Account Data and that use of the Account Data does not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law, rule or regulation. You will own all of your Account Data. You agree to grant us a worldwide, non-exclusive license to access, use, export, process, copy, distribute, perform and display the Account Data, to provide, maintain and support the Services, to prevent or respond to security issues, to provide support or respond to technical issues, as required by law, as permitted by these Terms, and as permitted by your instructions.
You are responsible for safeguarding your account credentials. You are also responsible for all of the activity within your account, whether or not you authorized that activity. We will not be responsible for any damages, losses or liability if credentials or any account is not kept confidential by you, or information provided by an unauthorized third party logging into and accessing the Services. You should immediately notify us of any unauthorized access to or use of your account. We may review activity in connection with the Services for compliance purposes, but we have no obligation to do so. We aren't responsible for the content of any Account Data or the way you or your users use theServices to transmit, store or process any Account Data. If we believe, however, that there is a violation of these Terms, we may suspend or block theServices or take any steps that we determine necessary, including with respect to Account Data, if we believe there is or may be a violation of any laws, rules or regulations or a risk of harm to us, the Services, other users or any third party.
By accessing or using the Services, you consent to the use of your Account Data in accordance with these Terms and the Privacy Policy, including being contacted via email or other electronic means in connection with the provision of the Services.
We may use our employees or contractors or those of our affiliates, or independent contractors, to perform our obligations under these Terms and to provide theServices, and we agree to remain responsible for their compliance with our obligations under these Terms.
If we use a third party video service processor, such as Zoom, to host an event, for instance, their terms and conditions (including their use of your personal information) is subject to their applicable terms of service and privacy policy. For Zoom, those terms are available at https://zoom.us/terms/.
You are under no obligation to use other services, however, without these third party services, we may not be able to provide all of the features or functionality of the Services.
Use of Services
TheServices may be made available via registration, a signed agreement, an order form or via account sign-up and it may be for a fee or made available at no fee. If you enter into a signed agreement with us, in the event of any conflict between the terms of the signed agreement and these Terms, the terms of the signed agreement will prevail with respect to the term in conflict.
Please note that if any Services are provided for free, including reports, information or other content, such Services are provided for internal business or personal purposes only and are not provided for commercial purposes. You are not permitted to commercialize or monetize such Services in any way without our express prior written consent.
Further, if any Services are provided for free, we reserve the right to make thoseServices, updates, upgrades, new versions, or other products that incorporate those Services (collectively, “Future Products”) available for a fee, and we will have no obligation to provide Future Products to you for free.Future Products may also be subject to separate fees and/or agreements for suchFuture Products. You acknowledge that you are responsible for all fees and expenses related to accessing or using the Services including internet service provider fees.
TERMINATION OF THE SERVICES
If any Services are ongoing, you may cancel your Services at any time with written notice to us, provided, however, if there are any fees due for the Services, you will remain responsible for payment of all fees for Services provided through the termination date. Fees are non-refundable and non-cancelable based on the Services that you ordered. We may terminate any ongoing Services you have registered for with notice to you.
Each of us may terminate any Services with notice to the other if the other materially breaches these Terms and such breach is not cured within thirty (30)days after the non-breaching party provides notice of the breach. Upon any termination for cause by you, if any pre-paid fees were paid, we will refund such prepaid fees covering the remainder of the then-current term of Services after the effective date of termination. Upon any termination for cause by us, you will pay any unpaid fees covering the remainder of then-current term ofServices after the effective date of termination, if any.
AUP
In using the Services, you should refrain from any abusive, dangerous, or threatening behavior. We reserve the right to immediately suspend, block and/or terminate your access to or use of the Services if, in our sole discretion, such behavior is exhibited.
As a condition of your access to or use of the Services, you agree to:
Further, as a condition of your access to or use of the Services, you agree not to:
Attempt to obtain personal information, or collect or record any information about users of the Services
FEEDBACK
We welcome your feedback. If you provide recommendations, suggestions, improvements or other feedback (collectively, “Feedback”), you agree that we will have a license and royalty-fee free, worldwide perpetual and irrevocable right to use and incorporate such Feedback into the Services without restriction and without any obligation or compensation to you or any third party.
THIRD PARTY PRODUCTS AND SERVICES
You may access or use the Services with third party products or services. Your use of those Services will be subject to the terms and conditions of such third parties, and you agree that you are using those products and services at your own risk. We do not provide any warranty or support for these products and services. Account Data, in some cases, may also be shared with the third party provider and used in connection with your access to those products and services. As such, we will not be responsible for any use, disclosure, modification or deletion of Account Data that is transmitted to, or accessed by, any third party products or services.
OWNERSHIP
We and our licensors own all right, title and interest in and to the Services including all related intellectual property rights. All of our rights not expressly granted by us to you pursuant to these Terms are retained by us.
CONFIDENTIALITY
We both acknowledge that during the course of the transactions contemplated by these Terms, one of the parties (the “Disclosing Party”) may find it necessary or appropriate to share Confidential Information (as defined below) with the other Party (the “Receiving Party”). The Receiving Party will: (i) not use theDisclosing Party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any third party, other than its employees and consultants who have a “need to know” for the receiving party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by law to make any disclosure of suchConfidential Information, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in theConfidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Information will not be deemed ConfidentialInformation hereunder if such information: (1) is known or becomes known(independently of disclosure by the Disclosing Party) to the Receiving Party prior to receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (2) becomes publicly known, except through a breach hereof by the Receiving Party; or (3) is independently developed by the Receiving Party without any use of or reference to the Disclosing Party’s Confidential Information.
“ConfidentialInformation” means any information provided by one party to the other and concerning such Disclosing Party’s business or operations including, but not limited to, all tangible, intangible, visual, electronic, now existing or future information such as: (a) trade secrets; (b) financial information, including pricing of the Services; (c) technical information, including research, development, procedures, algorithms, data, designs, code, and knowhow; (d)business information, including operations, planning, marketing interests, and products; and (e) all other information which would, due to the nature of the information disclosed or the circumstances surrounding such disclosure, appear to a reasonable person to be confidential or proprietary.
DISCLAIMERS
EXCEPT AS EXPRESSLY SET FORTH HEREIN,THE SERVICES AND ALL RELATED PRODUCTS AND INFORMATION ARE PROVIDED ON AN “ASIS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE DO NOT WARRANT THAT THE SERVICES WILL PRODUCE ANY RESULTS, OR BE UNINTERRUPTED, RELIABLE, TIMELY, SECURE, OR ERROR-FREE.
BY USING THE SERVICES, YOU CONSENT TOTHE SELECTED COMMUNICATIONS CHANNELS YOU CHOOSE TO USE AND TO THE PROVIDER OFSUCH SERVICES. SUCH CONSENT INCLUDES YOUR AUTHORIZATION FOR THE SELECTED SERVICES,INCLUDING WITHOUT LIMITATION THE USE OF CERTAIN REMOTE-ACCESS COMMUNICATION FEATURES AND/OR FUNCTIONALITY INCLUDING, BUT NOT LIMITED TO, VIDEO, TEXT, AND/OR AUDIO, REPORTS, INFORMATION AND RECORDS FOR DELIVERING THE SELECTED SERVICES IN COMPLIANCE WITH APPLICABLE LAW.
LIMITATION OF LIABILITY
IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS’ HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR OR OUR LICENSORS OR SUPPLIERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR USEOF THE SERVICES BY YOU (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE)) EXCEED $1,000. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THESE TERMS, if any. The foregoing WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION ALLOCATES THE RISKS between the parties, and the parties have relied on these limitations in determining whether to enter into THESE TERMS.
INDEMNITY
You will defend us and our affiliates and our respective employees, partners, officers, directors, agents, successors and assigns (collectively, the “Indemnified Party(ies)”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your violation of the theseTerms (including the or the AUP) (“Claim(s)”), and will indemnify theIndemnified Parties for all reasonable attorneys’ fees incurred and damages and other costs finally awarded against any Indemnified Party in connection with or as a result of, and for amounts paid by an Indemnified Party under a settlement you approve in connection with, a Claim. We agree to provide you with notice of any Claim and allow you the right to assume the exclusive defense and control, and cooperate with any reasonable requests in assisting your defense and settlement of such Claim. Notwithstanding the foregoing, any IndemnifiedParties may choose its own counsel if it pays for the cost of such counsel and you shall not enter into any settlement without the express written consent of the applicable Indemnified Party (such consent not to be unreasonably withheld).
SURVIVAL
Upon expiration or termination of these Terms, the following sections shall survive:“Compliance,” “Payment,” “AUP,” “Feedback,” “Third Party Products andServices,” “Ownership,” Disclaimers,” “Limitation of Liability,” “Indemnity,”“Survival,” “Dispute Resolution,” and “General.”
DISPUTE RESOLUTION
Arbitration:In the interest of resolving disputes between us in the most expedient and cost-effective manner, and except as described below, we agree that any dispute arising out of or in connection with these Terms will be resolved by binding arbitration. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, we ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Any arbitration between us will be settled under theFederal Arbitration Act and administered by the American ArbitrationAssociation ("AAA") under its Consumer Arbitration Rules(collectively, "AAA Rules") as modified by these Terms. TheAAA Rules and filing forms are available online at www.adr.org, by calling theAAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration and Process: A party who intends to seek arbitration must first send a written notice of the dispute the other party by certified U.S. Mail or by overnight courier (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). our address for Notice is: NOTICES@THEHOLDING.CO. The Notice of Arbitration must:(a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so directly within 30 days after the Notice ofArbitration is received, either party may commence an arbitration proceeding in accordance with the procedures set forth herein. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by either party must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
ArbitrationFees: The AAA Rules will govern payment of all arbitration fees. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
Exception to Arbitration: Notwithstanding anything to the contrary, nothing in these Terms will be deemed to limit the right of either party to:(a) bring an individual action in small claims court in any applicable US jurisdiction; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law to address an intellectual property infringement claim.
NoClass Actions: TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both of us agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
GENERAL
International Users. The Services are intended for visitors located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to theServices from countries or territories or by individuals where such access is illegal is strictly prohibited.
Revisions to the Terms. We may revise the Terms from time to time. The current version of the Terms will be posted on our Terms page, so please check back regularly. By continuing to use the Services after revisions become effective, you are agreeing to the revised Terms. If you do not agree to the revised Terms, please cease use of the Services.
Assignment.You may not assign these Terms or any Services or any rights hereunder, whether by assignment, transfer or otherwise, without our prior written consent in each instance. Subject to the foregoing, theseTerms will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment made in violation of theseTerms will be null and void.
Independent Contractor. The parties are independent contractors and neither party an agent, partner, joint venturer, or employee of the other party. These Terms shall not be interpreted or construed to (i) create an association, joint venture, partnership, agency, trust, lease of property or similar arrangement or relationship between the parties, or (ii) impose any partnership, agency, fiduciary, trust or similar type of obligation or duty on either party.
No Third Party Beneficiary. No person other than the parties here to will be entitled to any of the benefits of these Terms or be deemed toacquire any rights hereunder.
Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You shall not use the Services in violation of any U.S. export law or regulation.
Force Majeure. Neither party shall be liable under theseTerms by reason of any failure or delay in the performance of its obligations here under on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, pandemic, or any other cause beyond the reasonable control of such Party; provided, that: (i) the party affected by such force majeure event, as soon as reasonably practicable after obtaining knowledge of the occurrence of such event, gives the other prompt notice describing the event; (ii) the suspension of or extension of time for performance is of no greater scope and of no longer duration than is required by the force majeure event; and (iii) the party affected by such force majeure event uses all reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible.
Waiver.No waiver of any breach of these Terms will(a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers will be strictly construed. No delay in enforcing any right or remedy as a result of a breach of these Terms will constitute a waiver thereof.
Severability. In the event any one or more of the terms or provisions contained in these Terms or any application thereof will be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then (i) such term or provision shall be adjusted or limited to the minimum extent necessary to cure such invalidity or unenforceability, and(ii) the validity, legality and enforceability of the remaining provisions of these Terms or any application thereof will not in any way be affected or impaired.
Notices.Except as otherwise set forth herein, all notices under these Terms will be by email or provided by us by way of theServices. All notices to us should be sent to notices@theholding.co. Notices will be deemed to have been duly given the same day in the case of notices provided by us by way of email or the Services.
EntireAgreement. These Terms set forth the entire and final agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions in you purchase order, or other online or clickthrough terms provided by you, or any other order documentation provided by you will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact theComplaint Assistance Unit of the Division of Consumer Services of theCalifornia Department of Consumer Affairs in writing at 1625 N. Market Blvd.,Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
