IMPORTANT! The Easy Wizard Software (the "Software") provided by Kathryn S. Hartman, doing business as Body Art Training Group (collectively "BATG," "us," "we,"), is licensed only on the condition that you agree to the terms and conditions set forth below.
PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE CLICK THE APPROPRIATE BOX DURING THE SUBSCRIPTION PURCHASE PROCESS.
By agreeing to these Terms of Service, you expressly agree to mandatory arbitration to resolve any legal claims against us and waive your right to pursue a jury trial or participate in a class action lawsuit filed against us. Learn more below in Section 12.
1. NATURE OF AGREEMENT. This Easy Wizard Software License Agreement (this "Agreement") sets forth the terms under which you, as an individual or business entity ("you") may use the Software. Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and BATG agree as follows.
2. LICENSE GRANT. BATG hereby grants to you a non-exclusive, non-assignable, non-sublicensable license for the term of this Agreement, to access and use the Software and any user's guides, specifications, and other related documentation available online (the "Documentation"), subject to the terms and conditions of this Agreement. The licenses granted herein are conditioned upon your acceptance of this Agreement and payment in full pursuant to the following package designations.
(a) ECIPP-DIY. An individual license to use the Software at the price listed on the ECIPP Subscriptions page on ECIPP.com ("Site"), which is incorporated herein. This license shall be restricted to use of the Software to produce ECIPP-IIPP documentation for one commercial location. This license shall last for six (6) months from the date of your payment after which the license shall terminate. You may download the ECIPP-IIPP document produced through use of the Software an unlimited number of times during the six (6) month term of the license.
(b) ECIPP-Complete. An individual license to use the Software at the price listed on the ECIPP Subscriptions page on ECIPP.com ("Site"), which is incorporated herein. This license shall be restricted to use of the Software to produce ECIPP-IIPP documentation for one commercial location. This license shall last for six (6) months from the date of your payment after which the license shall terminate. As part of this upgraded package, you will also receive a personal review by Kathryn S. Hartman of your ECIPP-IIPP documentation and your ECIPP-IIPP document will be assembled and shipped to you as one complete package.
(c) Updates - BATG may provide updates to the Software from time-to-time. Said updates will be provided at the discretion of BATG. BATG may, in its sole discretion, determine to cease providing future updates at any time.
3. NO MEDICAL OR LEGAL ADVICE. The information provided when using the Software and produced when using the Software is not intended as medical or legal advice and should not be used as such. All references to medical and legal standards and requirements are for educational purposes only. You should consult with legal and medical professionals for advice on any medical or legal questions and issues.
4. REFUNDS. We do not offer refunds on subscriptions purchased through the Site. However, we will offer a refund in a situation where the customer objectively is unable to access the Application for an objective technical reason, which is extremely rare and shall be determined in our sole discretion.
5. OWNERSHIP OF SOFTWARE. BATG retains all rights to the Software and the Documentation not specifically granted in this Agreement. BATG owns the Software and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software and the Documentation are protected by United States laws and international treaty provisions.
YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
6. RESTRICTIONS. To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce the Software (or any of the browser screens comprising the Software user interface) except for those copies necessarily made by the personal computer and Internet browser that are running the Software; or (d) use the Software to provide service bureau or time-sharing services.
7. YOUR OBLIGATIONS. You shall be solely responsible for supplying all hardware, software and internet accessibility to meet the minimum requirements for running this Software.
8. TERM AND TERMINATION. The license granted in this Agreement is effective until terminated pursuant to Section 2 herein. You may terminate the license and this Agreement at any time by ceasing to use the Software until such time as the license terminates six (6) months after purchase. BATG may terminate the license should it determine in its sole discretion that you have violated any law, provide fraudulent information, failed to make a subscription payment in full, a billing dispute exists, or you have violated this Agreement. This license shall also terminate automatically on your failure to comply with any of the other terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any Documentation that you have downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on your computers. Notwithstanding termination, the provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17 of this Agreement shall survive and continue to apply.
9. LIMITATION OF LIABILITY. You are not entitled to receive damages from BATG for any cause relating to this Agreement, your use of the Software, or any services provided by BATG under this Agreement, or any services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with BATG or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL BATG BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL BATG BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SHOULD YOU BE DETERMINED TO BE THE PREVAILING PARTY AGAINST US IN A LEGAL ACTION OF ANY TYPE, THE PARTIES AGREE THE DAMAGES AWARDED TO YOU SHALL EQUATE TO THE DOLLAR AMOUNT YOU PAID FOR THE SUBSCRIPTION IN QUESTION.
10. LIMITED WARRANTY AND DISCLAIMER. BATG hereby represents and warrants that the Software will, at the time you purchase the subscription, and for a period of six (6) months thereafter, operate ninety (90) percent of the time during the term period when given normal, proper, and intended usage in compliance with BATG's instructions. In the event of a nonconformance during such period, you agree to promptly report such nonconformance along with all information required by BATG. BATG shall investigate any such reported nonconformance and shall use commercially reasonable efforts to remedy such nonconformance. If BATG is unable to remedy such nonconformance within ninety (90) days after the date BATG has received all relevant information with respect to such nonconformance from you, your sole remedy under this Agreement is to receive a refund of the price you paid.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BATG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. BATG DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, BATG DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE.
11. TRADEMARK. You agree that all of BATG's trademarks, trade names, service marks, logos, brand features, product and service names are trademarks and the property of BATG. You may not use this property without first obtaining the written permission of BATG.
12. ARBITRATION AGREEMENT. By entering into this Agreement, you agree to resolve any claim that you may have against BATG on an individual basis in arbitration, as outlined in this Arbitration Agreement section. This will preclude you from bringing any class, collective, or representative action against BATG, and also prevent you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BATG by someone else.
A. Agreement to Binding Arbitration Between You and BATG. You and BATG agree that any dispute, claim or controversy arising out of or relating to (i) this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, (ii) your access to or use of the Software or (iii) either parties' breach of any laws or regulations will be settled by binding arbitration between you and BATG, and not in a court of law.
You acknowledge and agree that you and BATG are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BATG otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BATG each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
B. Right To Opt-Out. We are providing you with the right to opt-out of this Arbitration Agreement by notifying us in writing within 30 days of purchasing a Product. To opt-out, just contact us using the Contact or Support pages on the Site and include the phrase "opt-out of arbitration agreement" and your name in the message.
C. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitration issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant to the Supreme Court decision in AT&T Mobility vs Concepcion and subsequent case law. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of California and the parties expressly agree the venue of any action shall be in civil court in the County of San Diego, California or the United States District Court for the Southern District of California located in San Diego, California, as appropriate for the particular claims asserted.
D. Small Claims Court. If you have a claim against us with a damage demand that does not exceed $10,000, you may opt-out of this Arbitration Agreement Clause and pursue the dispute in the San Diego Small Claims Court system by giving notice to us using the Contact or Support pages on the Site.
E. Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). We hereby consent to receive such notifications via the Contact or Support pages on the Site. The Arbitrator will be either (1) a retired judge or (2) an attorney specially licensed to practice law in the State of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
F. Location and Procedure. Unless you and BATG otherwise agree, the arbitration will be conducted in San Diego, California. If your claim does not exceed $20,000, then the arbitration will be conducted solely on the basis of documents you and BATG submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary or elect to skip arbitration and proceed to small claims court.
G. The Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only for the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect. The parties shall bear their own attorneys fees associated with the arbitration proceeding.
H. Fees. The parties agree to split all fees of the arbitration charged by AAA equally.
I. Changes. If BATG changes this Arbitration Agreement after the date you first agreed to this Agreement (or to any subsequent changes), you may reject any such change by providing BATG written notice of such rejection within 30 days of the date such change became effective. By rejecting changes, you agree that you will arbitrate any dispute between you and BATG in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to this Agreement (or to any subsequent changes to the Terms).
J. Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms of Service; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
K. Court Jurisdiction Alternative. Should a court of competent jurisdiction or arbitrator rule this arbitration clause invalid, the parties agree this Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to rules regarding conflicts of law. The parties further agree the choice of forum and venue for litigating any disputes shall be either the civil courts located in the County of San Diego, California or the United States District Court for the Southern District of California located in San Diego, California, as appropriate for the particular claims asserted.
13. FORCE MAJEURE. If the performance of BATG under this Agreement is prevented, hindered, or otherwise made impractical by reason of electrical outages, hacking, flood, strike, war, acts of government, or any other casualty or cause beyond the control of BATG, then BATG shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
14. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
15. NO ASSIGNMENT. You may not assign this Agreement or any of the rights granted by BATG hereunder, in whole or in part, without the prior written consent of BATG, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
16. INDEMNITY. You agree to indemnify and hold BATG and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Software, your violation of this Agreement, or your violation of any rights of another.
17. COPYRIGHT. All contents, excluding user generated content, Copyright 2017 Kathryn S. Hartman. All rights reserved.
18. EXPORT CONTROL. You agree to obey and comply with any and all applicable United States laws, rules, and regulations governing the export of software.
19. UPDATES. We reserve the right to update this Agreement at any time in our sole discretion. If we modify or update this Agreement, we will provide a thirty (30) day period during which you may accept or reject the update. We will notify you of the update the next time you access the Software after the implementation of the update. Should you reject such an update during the six month license period, but have not yet generated an ECIPP-IIPP, your BATG account will be deactivated and your paid subscription will be refunded notwithstanding Section 3 of this Agreement. If you reject such an update after you have generated an ECIPP-IIPP, no refund will be given and your BATG account will be deactivated.
Effective Date: September 21, 2017