Terms of service.
Big Calm LLC
TERMS OF SERVICE
Last Updated: October 2, 2022
1. AGREEMENT TO TERMS
These terms of service (the “Agreement” or “Terms of Service”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity, (the “User,” “you” or “your”) and Big Calm LLC (“Big Calm,” “we,” “us,” or “our”), concerning your access to and use of https://bigcalm.com, as well as any other mobile websites or mobile applications related, linked, or otherwise owned and operated by us or our Affiliates (collectively, the “Site”). We are a limited liability company registered in Minnesota, United States and have our registered office at 470 Highway 96 W, Shoreview, MN 55126.
You agree that by accessing the Site, you have read, understood, and agreed to be bound by these Terms of Service.
This Agreement is effective as of October 2, 2022. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Service from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Service, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable terms every time you use our Site so that you understand which Terms apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Service by your continued use of the Site after the date such revised Terms of Service are posted.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
BIG CALM LLC IS A COACHING PLATFORM. BIG CALM LLC DOES NOT PROVIDE, NOR ALLOW, THE PROVISION OF HEALTH CARE SERVICES OF ANY KIND INCLUDING PSYCHOTHERAPY, PSYCHOLOGY, COUNSELING, AND PSYCHIATRY AND IS NOT TAILORED TO COMPLY WITH HEALTH CARE LAWS OR REGULATIONS INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA). IF YOUR INTERACTIONS WOULD BE SUBJECTED TO SUCH LAWS OR REGULATIONS, YOU MAY NOT USE THIS SITE.
The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
As used in this Agreement, references to our “Affiliates” includes our owners, subsidiaries, affiliated companies, officers, directors, employees, contractors, partners, sponsors, advertisers and includes (without limitation) all parties involved in creating, producing, and/or delivering this Site and/or its contents.
2. OUR SERVICES
Big Calm provides a website and related platform to promote wellness coaching services, such as emotional health online courses, matching individual clients and coaches, and assisting clients in engaging ongoing one-on-one coaching programs. These services are collectively referred to as the “Services” in this Agreement.
“Client” as used herein means any authorized User of the Site or Services who seeks or obtains Coach Services from another User.
“Coach” as used herein means any authorized User of the Site or Services that utilizes the Site to advertise, provide, or receive payment for the provision of Coach Services to Clients.
“Coach Services” means all services performed for or delivered to Clients by Coaches.
“Coach Fees” means: (a) for an hourly or single service contract, the amount reflected in the hourly invoice (i.e. the number of hours invoiced by a Coach, multiplied by the hourly rate charged by the Coach); (b) for a fixed-price contract, the fixed fee agreed between a Client and a Coach or set by Big Calm; and (c) any bonuses or other payments made by a Client to a Coach.
“Service Contract” means, as applicable, the contractual provisions between a Client and a Coach governing the Coach Services to be performed by a Coach for a Client.
3. ACCOUNT SET UP; SECURITY AND PASSWORD
In order to book or offer Coach Services, you will be required to register and set up an account at https://bigcalm.com/client-login (your “Account”). To set up your Account, we need certain information about you, including your name, email address, a username, and a password (collectively, “Account Data”). Please keep your Account Data accurate, current, and secure at all times. You may update your Account Data any time by logging into your Account at https://bigcalm.com/client-login.
By creating your Account, you consent to the collection and use of your Account Data and certain other information in accordance with our Privacy Policy located at https://bigcalm.com/privacy.
You are responsible for safeguarding and maintaining the confidentiality of your Account Data and agree not to share your username or password with anyone. You are responsible for safeguarding your Account Data and for any use of our Services with your username and password. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account, Account Data, or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User.
We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
4. DIGITAL SIGNATURE; ELECTRONIC RECORDS
By registering for an Account on the Site or by clicking to accept these Terms of Service when prompted on the Site, you are deemed to have executed this Agreement electronically; effective on the date of your registration, pursuant to the United States Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you can electronically receive, download, and print this Agreement, and any amendments hereto.
In connection with this Agreement, you may be entitled to receive certain records, such as notices and communications, in writing. In addition, you give us permission to provide any records you may be entitled to electronically instead of in paper form.
5. PAYMENT METHODS
In order to complete the purchase of Coach Services on our Site, you must provide information for at least one valid payment method. The Site makes the following methods of payment available: credit cards, debit cards, in some cases bank accounts, PayPal, and such other methods of payment as we may accept from time to time in our sole discretion (collectively, “Payment Methods”). You hereby authorize us to store your Payment Method(s) or other financial information and to charge your Payment Method(s) (as applicable).
By providing Payment Method information through the Site, you represent and warrant that:
● you are legally authorized to provide such information to us;
● you are legally authorized to use the Payment Method(s); and
● such action does not violate the terms and conditions applicable to your use of such Payment Method(s) or applicable law.
When you authorize a payment using a Payment Method via the Site, you represent and warrant that there are sufficient funds or credit available to complete such payment using your designated Payment Method. To the extent that any amounts owed under this Agreement cannot be collected from your Payment Method(s), you are solely responsible for paying such amounts by other means.
Our Site may employ the use of third-party services for the purpose of facilitating payments and the completion of purchases. By submitting your payment information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.
6. NON-PAYMENT OR DEFAULT BY CLIENTS
If Client is in “default”, meaning Client fails to pay the Coach Fees or any other amounts when due under these Terms of Service, Big Calm will be entitled to the remedies described in this section in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following:
· Client fails to pay the Coach Fees when due;
· Client fails to pay a balance that is due or to bring, within a reasonable period of time (but no more than 30 days) after accrual of the charge, an account current after a credit or debit card is declined or expires;
· Client fails to pay an invoice issued to the Client by Big Calm within the time period agreed or, if no period is agreed, within 30 days;
· Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Big Calm for Coach Fees or such other amount due being reversed to the Client; or
· Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s Account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Coach Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Coach Services at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Big Calm upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, Big Calm or our Affiliates may, without notice, charge all or a portion of any amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Big Calm or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
Big Calm does not guarantee that Client is able to pay or will pay Coach Fees, and Big Calm is not liable for and may reverse Coach Fees if Client is in default or initiates a chargeback of funds with their financial institution. If Big Calm recovers funds from a Client who initiated a chargeback or who is in default pursuant to this section, Big Calm will disburse any portion attributable to Coach Fees to the applicable Coach to the extent not already paid by Client or credited by Big Calm through any payment protection program.
7. NO RETURN OF FUNDS, NO CHARGEBACKS, LIMITED TIME PERIOD TO RECEIVE SERVICES
Client acknowledges and agrees that Big Calm or its Affiliates may charge or debit Client’s designated Payment Method for the Coach Fees incurred. Once Big Calm or its Affiliates charges or debits the Client’s designated Payment Method for the Coach Fees, the charge or debit is non-refundable, except as required by applicable law. Client specifically acknowledges and agrees that, unless prohibited by law, they have one (1) year from the initial payment date to use services for which they paid such as individual sessions or packages of sessions. If services, including all sessions in a package, are not used within one year, payment for those services will be forfeited unless otherwise prohibited by law.
To the extent permitted by applicable law, Client agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Coach Fees or other fees charged pursuant to these Terms of Service for any reason. A chargeback in breach of this obligation is a material breach of these Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Big Calm or its Affiliates may dispute or appeal the chargeback, institute collection action against Client, close Client’s Account, and take such other action it deems appropriate.
8. SERVICE FEES FOR COACHES
Coaches agree to pay Big Calm a service fee of 33% of all Net Revenues earned from Coaching Services conducted through the Site for the use of Big Calm Services (including the platform, marketing, curriculum, and payment services) (the “Service Fee”).
“Net Revenue” is defined as the total amount paid by a Client for Coach Services provided by Coach minus any deductions including refunds and bad debts. Coach is responsible for paying all Service Fees. When a Client pays a Coach for a service or when funds related to a service are otherwise released to a Coach, Big Calm will credit the Coach for the full Earned Amount paid or released by the Client minus the Service Fee. The “Earned Amount” is defined as the amount owed to Coach for Coach Services delivered to a Client or performed for a Client, less any refunds for Coach Services delivered or performed. For illustrative purposes only, if, for instance, Client pays $2,000 for a 10-session package with Coach, Coach would receive $200 minus the Service Fee following each session with Client.
Coach hereby irrevocably authorizes and instructs Big Calm to deduct the Service Fee from the amount paid to Coach.
9. DISBURSEMENTS TO COACHES
A. Disbursements. Big Calm disburses Earned Amount funds that are payable to Coach as described in Section 8 above. Earned Amounts are subject to a fourteen (14) day security hold after the Coach renders the Coach Services for which the funds were earned except if the Earned Amount. Big Calm will then automatically disburse Earned Amount funds bi-weekly on Fridays, except where the Account balance on any Friday is less than the Minimum Threshold. The “Minimum Threshold” is either (a) $100 for Coaches within the United States, or (b) $500 for Coaches outside the United States. Except as provided in the following paragraph, when Earned Amount funds are below the Minimum Threshold, the automatic disbursement schedule is paused, and the available and payable funds are released on the earlier of: (i) Coach’s request; or (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold.
You agree that you will not receive interest or other earnings on the funds held by Big Calm.
B. Non-US Coaches. If a Coach that is located outside of the United States is not able to withdraw funds due to economic sanctions applicable to Big Calm or our payment partners, or due to Big Calm’s payment partners’ refusal to service certain geographic areas, Big Calm will suspend automatic disbursements as provided in the prior paragraph and will safeguard such funds in an escrow account, or in another suitable account, as determined in Big Calm’s sole discretion, until the earlier of (a) the Coach is able to and does in fact withdraw the funds, or (b) Big Calm is required by law to transfer the funds to an appropriate legal authority, after which the Coach can seek to recover the funds from such authority.
C. Disbursement Refusals. Except as expressly provided in the Terms of Service and as prohibited by applicable law, Big Calm may refuse to process, may hold the disbursement of the Coach Fees or any other amounts and offset amounts owed to us, or take such other actions we deem appropriate in our sole discretion if:
· we require additional information, such as Coach’s tax information, government-issued identification or other proof of identity, address, or date of birth;
· we have reason to believe the Coach Fees may be subject to dispute or chargeback;
· we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site or is using the Site unlawfully;
· we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement; or
· we deem it necessary in connection with any investigation, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances.
If, after investigation, we determine that the hold on the disbursement of the Coach Fees is no longer necessary, Big Calm will release the hold as soon as practicable.
10. OUR RIGHT TO REIMBURSEMENT
In addition, except as expressly provided in these Terms of Service and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or work; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our Services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you or your Client despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by charging your Account(s), offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or using other lawful means to obtain reimbursement from you. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Services and close your Account.
11. COACH TAXES
Coach acknowledges and agrees that they are solely responsible for: (a) all tax liability associated with payments received from Clients or us through Big Calm, and that Big Calm will not withhold any taxes from payments to Coach unless required to under applicable law; (b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Coach is not covered by or eligible for any insurance from Big Calm; (c) determining and fulfilling Coach’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges; and (d) if outside of the United States, determining if Big Calm is required by applicable law to withhold any amount paid to Coach and notifying Big Calm of any such requirement and indemnifying Big Calm for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Big Calm, Coach agrees to promptly cooperate with us and provide copies of Coach’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Coach is engaging in an independent business as represented to Big Calm.
12. NON-CIRCUMVENTION
You acknowledge and agree that a substantial portion of the compensation Big Calm receives for making the Site available to you is collected through the Service Fee and that in exchange a substantial value to you is the relationships you make with other Users identified through the Services (the “Big Calm Relationship”). Big Calm only receives the Service Fee when a Client and a Coach pay and receive payment through the Site. Therefore, for 24 months from the start of a Big Calm Relationship (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising from that relationship and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “Conversion Fee”). The Conversion Fee shall be the greater of two times the Earned Amount from the Client during the previous 12-month period or $2,000. The Conversion Fee must be paid to Big Calm before any Coach-Client work outside of the platform takes place.
You understand and agree that if Big Calm determines that you have violated this section, it may (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (b) close your Account and revoke your authorization to use the Services, and (c) charge you for all losses and costs (including any and all time of Big Calm’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User. If you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. By way of example only, you agree that during the Non-Circumvention period you will not (i) offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site; (ii) invoice or report on the Site or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users; or (iii) refer a User you identified on the Site to a third party who is not a User of the Site for purposes of making or receiving payments other than through the Site.
You agree to notify Big Calm immediately if a person suggests making or receiving payments other than through the Site in violation of this Section or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Big Calm. You acknowledge and agree that a violation of this section is a material breach of these Terms of Service and may result in your Account being permanently suspended and charged the Conversion Fee (defined above). This section still applies if you choose to cease using the Site, and you must pay the Conversion Fee for each other User you wish to continue working with after you cease using the Site.
13. YOUR CONDUCT ON OUR SITE
As a condition of your use of our Site and Services, you agree that: (i) you are an individual person more than 18 years of age; (ii) your use of this Site and our Services will at all times comply with the terms of this Agreement and all applicable laws; (iii) all Account registration information you submit will be true, accurate, current, and complete; (iv) you will maintain the accuracy of such information and promptly update such registration information as necessary; and (v) you have the legal capacity and you agree to comply with these Terms of Service.
BY USING THE SITE, YOU AGREE NOT TO ENGAGE IN ANY OF THE FOLLOWING ACTIVITIES, which constitute express violations of these Terms of Service:
● Attempting to, or actually accessing data not intended for you, such as logging into an account which you are not authorized to access;
● Using the Site or any of its resources to solicit Site users or Big Calm personnel to become users, service providers or partners of other online or offline services directly or indirectly competitive with us
● Make payments, or request any payments to be made, outside of the Site’s billing processing system;
● Taking any action that places excessive demand on our Services, or imposes, or may impose an unreasonable or disproportionately large load on our infrastructure (as determined in our sole discretion);
● Upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
● Tampering or interfering with the proper functioning of any part, page or area of the Site;
● Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
● Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords;
● Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
● Engage in unauthorized framing of or linking to the Site;
● Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site;
● Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
● Delete the copyright or other proprietary rights notice from any Site content;
● Attempt to impersonate another user or person or use the username of another user;
● Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”);
● Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you;
● Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
● Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code;
● Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site;
● Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software;
● Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
● Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise;
● Sell or otherwise transfer your profile; or
● Otherwise violate these Terms of Service, our Privacy Policy, or any applicable laws.
If you discover or suspect any violation of the above terms, please tell us about any problems or offensive content so that we can keep our Services and Site working properly. We may limit or terminate any of our Services and take technical or legal steps to keep users off our Site that are violating this Agreement, creating problems for other users, or acting in violation with the letter or spirit of our policies or any applicable laws.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Site (or any portion thereof).
14. LINKS
A. Linking to this Website. You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Site must not be framed on any other site, nor may you create a link to any part of this Site other than the home page. We reserve the right to withdraw linking permission without notice.
B. Links to Other Websites. Our Services may contain links to third party websites or services that are not owned or controlled by Big Calm.
Big Calm has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party website or service. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that Big Calm shall not be responsible or liable, whether directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such third-party website or service.
We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.
15. YOUR LIMITED RIGHT TO USE THE SITE
This Site and all the information available on the Site are the property of us and/or our Affiliates and are protected by copyright, trademark, and other intellectual property laws. You may not use the Site, our Services, or the information available on the Site in a manner that constitutes an infringement of our rights, our Affiliates’ rights or that has not been authorized by us.
16. CONTENT; INTELLECTUAL PROPERTY RIGHTS
A. Ownership of Site Content. Unless otherwise indicated, all the content on the Site, including illustrations, texts, names, service names, images, videos, source code, databases, functionality, curriculum, worksheets, software, website designs, photographs, slide decks, graphics, etc. (collectively, the “Big Calm Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) is the property of us and our Affiliates.
Any partial or total reproduction of this content, by any means, is subject to prior and express authorization by us. United States law concerning intellectual property ownership and copyright protects all materials, information and content offered or made available on our Site or through our Services. We cannot give you the right to copy, display, sell or otherwise distribute content or materials that you do not already have rights to. All fraudulent use or distribution of content or materials that violates the rights held by a third party is severely punishable under United States law.
We will not, under any circumstances, be held responsible if anyone violates rights held by a third party through activities on our Site or by use of our Services.
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. You may also use Big Calm Marks descriptively, provided you adhere to the guidelines listed below, or as otherwise permitted by law.
We reserve all rights not expressly granted to you in and to the Site, Big Calm Content, and the Marks.
B. Descriptive Use of Marks. Descriptive use includes instances where you are referring to Big Calm LLC or Big Calm Services, such as “I registered on Big Calm’s website today” or “I attended Big Calm’s Compass Course training.”
You agree to never mislead anyone to believe Big Calm sponsorship, affiliation, or endorsement of your company, products, or services exists when it does not.
When referring to Big Calm, you agree to use the Big Calm name in a plain text font and format only.
Unless you have written permission from Big Calm, you must never use any Big Calm Mark:
● On any letterhead, business card, or signature block;
● As part of your business name or a domain name;
● As part of a user ID, including on the Site or social media;
● In association with any third-party trademark in a manner that might create potential confusion as to the ownership of the Big Calm Marks;
● In any manner that suggests or could lead someone to believe you are acting on behalf of or in association with Big Calm or that Big Calm has endorsed or sponsored your product or services; or
● Outside of your relationship with us, except as permitted by Big Calm in writing.
Even if you have permission to use a Big Calm Mark, you must never use any Big Calm Mark:
● That has been reproduced from an unauthorized artwork;
● That has been modified, including color specifications, position and relative size of the letterings;
● That has been modified to use negative or reverse “drop-out” reproduction;
● Tightly confined in a band or bar; or
● With other seals, logos, or other marks of other entities.
C. Your Content. The Site may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Your Content”). Your Content may be viewable by other users of the Site and through third-party websites. As such, Your Content may be treated as non-confidential and non-proprietary. When you create or make available Your Content, you thereby represent and warrant that:
● The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
● You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use Your Content in any manner contemplated by the Site and these Terms of Service.
● You have the written consent, release, and/or permission of each and every identifiable individual person in Your Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Content in any manner contemplated by the Site and these Terms of Service.
● Your Content is not false, inaccurate, or misleading.
● Your Content is not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
● Your Content is not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
● Your Content does not ridicule, mock, disparage, intimidate, or abuse anyone.
● Your Content is not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
● Your Content does not violate any applicable law, regulation, or rule.
● Your Content does not violate the privacy or publicity rights of any third party.
● Your Content does not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
● Your Content does not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
● Your Content does not otherwise violate, or link to material that violates, any provision of these Terms of Service, or any applicable law or regulation.
D. Your Content License. By posting Your Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute Your Content (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, Your Content, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in Your Content, and you warrant that moral rights have not otherwise been asserted in Your Content.
We are not liable for any statements or representations in Your Content provided by you in any area on the Site. You are solely responsible for Your Content to the Site, and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding Your Content.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change Your Content; (2) to re-categorize Your Content to place them in more appropriate locations on the Site; and (3) to pre-screen or delete Your Content at any time and for any reason, without notice. We have no obligation to monitor Your Content.
E. Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
17. USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, facilitating, and improving Services, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
18. GUIDELINES FOR REVIEWS
We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review.
By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
19. MOBILE APPLICATION LICENSE
If you access the Site via a mobile application, then we grant you a revocable, nonexclusive,
non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Service.
You shall not:
· except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application;
· make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application;
· violate any applicable laws, rules, or regulations in connection with your access or use of the application;
· remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application;
· use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended;
· make the application available over a network or other environment permitting access or use by multiple devices or users at the same time;
· use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application;
· use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or
· use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
20. UNAUTHORIZED USE OF SITE OR CONTENT
Subject to our Privacy Policy, any content or material that you transmit to or through the Site or to us, whether by electronic mail, post, or other means, for any reason, will be treated as non-confidential and non-proprietary. While you retain all rights in such communications or material, you grant us and our Affiliates a non-exclusive, paid-up, perpetual, and worldwide right to copy, distribute, display, perform, publish, translate, adapt, modify, and otherwise use such material for any purpose regardless of the form or medium (now known or not currently known) in which it is used.
Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise.
We respect the intellectual property of others, and we ask you to do the same. If you, or any user of this Site, believe your copyright, trademark or other property rights have been infringed by a posting, listing, or content on this Site, you, or the user, should send a notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
Identify the material that you claim is infringing upon your copyrighted work
Your contact information, including an email address
Enough information, if possible, to permit us to notify the owner of the allegedly infringing material or other content
Include the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Sign the notice
Send the written communication to our Designated Agent for Claimed Infringement at the following address:
Big Calm LLC
Attn.: Scott Palmer
470 Highway 96 W, Suite 280
Shoreview, MN 55126
You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Site without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
21. NONDISCRIMINATION STATEMENT
Big Calm’s mission is to empower Coaches and Clients to improve their lives and the lives of those with whom they interact. Key to our mission is that these opportunities should be equally available to all people regardless of background, nationality, race, ethnicity, sex, gender, gender identity, sexual orientation, actual or perceived disability status, veteran status, marital status, or other similarly protected characteristics. Big Calm’s goal is for members of our community to feel welcome on the Site. A condition of using the Site is your agreement not to engage in any unlawful discrimination or harassing conduct. Such conduct is not permitted by any member of our community. Big Calm does not require Users to violate local laws or take actions that may subject them to legal liability. Big Calm will take actions to enforce this policy. Users engaging in this activity are subject to Account closure. Please bring any reports of discrimination or harassment to our attention at admin@bigcalm.com.
22. DISCLAIMERS
A. Disclaimer of Warranties. THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
This Site could include technical or other mistakes, inaccuracies, or typographical errors. WE MAKE NO WARRANTY THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. We may make changes to the materials and Services on this Site, including the prices and descriptions of any of our listed Services, at any time without notice. The Service listings or other content on this Site may be out of date and we make no commitment to update such content or listings.
WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE.
Through your use of the Site, you will have opportunities to engage in commercial transactions. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
B. Service Information. We take great care when putting Service information, descriptions, and images on-line but will not be held responsible for any mistakes or omissions for any information given.
C. Availability of Services. We will always endeavor to schedule and fulfill your order as promptly as possible once completed and paid for. If a Service becomes unavailable after your order has been confirmed and paid for, we will refund the price you paid for the Service within 30 days following the date of payment. If your order includes services that are temporarily unavailable, we will send you an availability notice and you may choose to either reschedule your order or to cancel and receive a full refund. If relevant, we may also offer you a replacement for an unavailable service or product of similar price and quality. If you choose to decline this offer, we will provide a full refund for the unavailable service.
D. Site Availability. We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms of Service will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
23. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM YOUR ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE SITE OR OUR SERVICES; WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OUR SERVICES.
Big Calm is not responsible for, and will have no liability for, any actions of independent coaches.
Notwithstanding the above, if we are found to be liable, our liability to you or any third party (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) is limited to the total fees you have paid to us in the twelve (12) months prior to the action giving rise to liability.
24. INDEMNIFICATION
Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims and expenses, including attorney’s fees, that arise from your use or misuse of our Site and Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
25. RELEASE
In recognition of the fact that Big Calm is not a party to any contract between Users, you hereby release Big Calm, any of our Affiliates, from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Coach Services provided to Client by a Coach and requests for refunds based upon disputes.
This release will not apply to a claim that Big Calm failed to meet our obligations under these Terms of Service.
26. RELATIONSHIP OF THE PARTIES
Big Calm offers a platform that enables Users to find one another, enter into service relationships and agreements, receive, and provide Coaching Services, and make and receive payments. Big Calm neither performs nor employs individuals to perform Coaching Services. You acknowledge and agree that Big Calm does not supervise, direct, or control Users in the performance of any contractual obligations they may have under a Service Contract and agree that: (i) Big Calm is not responsible for ensuring the accuracy or legality of any user content, for which Users are solely responsible; (ii) Big Calm is not responsible for the offering, performance, or procurement of Coaching Services, (iii) Big Calm does not make any representations about or guarantee any particular User’s offered services, and (iv) nothing will create an employment, agency, or joint venture relationship between Big Calm and any User offering services. While Big Calm will provide certain training and educational content to Coaches, such trainings and content are not guarantees, including of quality, outcomes, or ability or willingness of the Coach to complete a Service Contract.
You further acknowledge and agree that Users, and not Big Calm, are solely responsible for (a) evaluating and determining the suitability of any Client or Coach; (b) assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including background and qualifications; (c) deciding whether to enter into a Service Contract on the Site as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service Contracts between Users are directly between the Users and Big Calm is not a party to those contracts.
Nothing in this Agreement is intended to or does prohibit or discourage any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the non-circumvention provisions. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
27. CHANGES TO THE TERMS OF SERVICE AND THE SITE
Our Site and the Services we provide are a work in progress and, as such, things may change, be added or be taken away. We reserve the right to update the Site, our Services, and these Terms of Service from time to time, at our discretion and without any notice. It is solely your responsibility to keep up-to-date with the latest Terms of Service by checking back regularly. Your continued use of the Site and our Services following the publishing of updated Terms of Service will be taken to mean that you have read and agree to the changes.
28. TERM AND TERMINATION
A. Term. These Terms of Service shall remain in full force and effect while you use the Site.
B. Termination By Us. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF SERVICE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
You further acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Service Contracts with you. You therefore agree that: if Big Calm decides to temporarily or permanently close your Account, Big Calm has the right (but no obligation) where allowed by law to: (i) notify other users that have entered into Service Contracts with you of your closed account status, (ii) provide those users with a summary of the reasons for your account closure, and (iii) if you are a Coach, to replace you with another Coach with no further financial obligation to you except as described elsewhere in Agreement. You agree that Big Calm will have no liability arising from or relating to any notice that it may or may not provide to any user regarding closed account status or the reason(s) for the closure.
C. Termination by You. You may terminate this Agreement at any time by providing written notice to admin@BigCalm.com. In the event you terminate this Agreement, your right to use the Services is automatically revoked and your Account will be closed.
You agree that Big Calm is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or any attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract entered into between Users. If you attempt to terminate this Agreement while having one or more open Service Contracts, you agree (i) you hereby instruct Big Calm to close any open contracts; (ii) you will continue to be bound by this Agreement and the other Terms of Service until all such contracts have been closed on the Site and your access to the Site has been terminated; (iii) Big Calm will continue to perform those Services necessary to complete any open transaction between you and another User; and (iv) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Big Calm for any Services or such other amounts owed under the Terms of Service and to any Coaches for any Coach Services.
29. GOVERNING LAW
This Site (excluding any linked sites) is controlled by us from our offices within Minnesota, USA. By accessing this Site, you agree that the statutes and laws of Minnesota, without regard to the conflicts of laws principles thereof, will apply to all matters relating to the use of this Site, our Services, and the materials, products, content, and information available through this Site and our Services. You agree and hereby submit to the exclusive personal jurisdiction and venue any court of competent jurisdiction within the State of Minnesota with respect to such matters.
30. DISPUTE RESOLUTION
A. Informal Dispute Resolution. Before serving a demand for arbitration of a claim, you and Big Calm agree to first notify each other of the claim. You agree to notify Big Calm of the claim by email to admin@BigCalm.com, and Big Calm agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Big Calm then will seek informal voluntary resolution of the claim. Any Notice must include pertinent account information, a brief description of the claim, and contact information, so that you or Big Calm, as applicable, may evaluate the claim and attempt to informally resolve it. Both you and Big Calm will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s claim and avoid the need for further action.
B. Binding Arbitration. If the parties are unable to resolve a dispute through informal negotiations, the dispute will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website: www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either party.
The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Washington County, Minnesota. Except as otherwise provided herein, the parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a dispute proceeds in court rather than arbitration, the dispute shall be commenced or prosecuted in the state and federal courts located in Washington County, Minnesota, and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Service.
In no event shall any dispute brought by either party related in any way to the Site be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any dispute falling within that portion of this provision found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
C. Restrictions. The parties agree that any arbitration shall be limited to the dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
D. Exceptions to Arbitration. The parties agree that the following dispute are not subject to the above provisions concerning binding arbitration: (a) any dispute seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a party; (b) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any dispute falling within that portion of this provision found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
31. ENTIRE AGREEMENT
These Terms of Service constitute the entire agreement and understanding between us concerning the subject matter of this agreement and supersede all prior agreements and understandings of the parties with respect to that subject matter. These Terms of Service may not be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this Site is in conflict or inconsistent with these Terms of Service, these Terms of Service shall take precedence.
32. SEVERABILITY
If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intentions. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
33. NOTICES
All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to admin@BigCalm.com, if by email, or to 470 Highway 96 W, Suite 280, Shoreview, MN 55126 if by conventional mail.
We also welcome any comments or questions at admin@BigCalm.com.
34. SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or Big Calm from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.
35. ASSIGNABILITY
These Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you unless you follow the provisions in this section.
In order to assign the Terms of Service or your Account to a successor after an acquisition of your company or substantially all of your assets, a merger, or another change in majority ownership of your company, you must provide written notice to Big Calm LLC Attn: Legal, 470 Highway 96W, Suite 280, Shoreview, MN 55126 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, (f) a statement indicating the manner in which your company was acquired, (g) the name and contact information of the acquiror, and (h) the effective date of such change in ownership. If Big Calm does not object via email within 14 business days of the mailing of a written notice, then the assignment is permissible, provided in both cases that such notice is properly addressed.
No other assignments are valid without Big Calm’s prior written consent, which can be requested via email or letter at the above address. Any other attempted transfer or assignment will be null and void.
36. FORCE MAJEURE
The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
37. PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
38. ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Big Calm makes no representations that the Site or Services are appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the U.S. Department of Commerce and the sanctions programs maintained by the U.S. Department of the Treasury Office of Foreign Assets Control). You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services.
In order to access or use the Services, you must and hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services and your license to use the Services will be immediately revoked.
39. PRIVACY
We care about data privacy and security. Please review our Privacy Policy: https://www.bigcalm.com/privacy. By using the Site, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Service. Please be advised the Site is hosted in the United States. If you access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.