Terms & Conditions – Balancing Act

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS webSITE.

Last Modified On: July 1, 2019

 

These terms and conditions (these “Terms and Conditions”) create a contract between you and Kimberly VanBuren LMFT, PLLC, dba Balancing Act (the “Company” “we” or “us”). Your use of this website or any of the Company’s websites or mobile applications (each, a “Site”) for services and information (the “Services” as more fully described below) offered by the Company, or any of its subsidiaries, is predicated upon your acceptance of these Terms and Conditions. In these Terms and Conditions, both you and the Company may be referred to individually as a “party” and collectively as the “parties.”

 

These Terms and Conditions, together with the Company’s Privacy Policy (found at https://balancingactlms.com/privacy-policy/), collectively referred to as “Website Policies,” governs your use of the Services and the Site. If you choose to accept these Website Policies, you must do so as written, without modification. If you do not accept these Website Policies, you will not be allowed to receive the Services and may not utilize the Site.

 

Please read these Website Policies carefully before you start to use the Site. By using the Site, or by clicking to accept or agree to these Website Policies when this option is made available to you, you accept and agree to be bound and abide by these Website Policies, and warrant and represent that you are at least 18 years of age and that you have the legal authority to enter into these terms and conditions as an individual or on behalf of an entity. Such acceptance date shall become the effective date of these Website Policies (“Effective Date”).

 

  1. ServicesThe Company provides counseling, support, and grief counselor certification services (each, a “Service” or collectively, the “Services”). By accepting these Website Policies, you agree to provide the information requested on the respective registration page of the Site completely and accurately, and to update your information as necessary. The Company routinely maintains and updates personally identifying information which may include business and/or personal credit card accounts, bank accounts, other financial accounts, address information, telephone information, and email information. Further, the Company may require you to submit confidential information pertaining to you or your business including, without limitation, cash flow, balance sheets, budgets, and other reasonable confidential information as requested by the Company (“Customer Information”). The Company will provide the Services in accordance with its then-current pricing, as set forth on the Site. The Company makes no warranties or guarantees whatsoever pertaining to the Services.

 

  1. Intellectual Property RightsThe Company hereby grants to you during the Term (as defined below) a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license (“License”) to use the Site and the Services. You shall not be entitled to a License to the Company’s trademarks, service marks, trade dress, patents, patents pending, or other intellectual property (the “Intellectual Property”). You shall not copy or reverse engineer, in whole in or part, the Site, Services, or Intellectual Property. All rights not expressly granted by the Company to you under these Website Policies are expressly reserved to the Company. To the extent you upload content in connection with the Site or a Service, including any and all communications that you make with the Company through the Service, you grant the Company a royalty-free, worldwide, non-exclusive, perpetual, irrevocable, transferable license, to copy, distribute, display publicly, make available to the public, adapt, sub-license, process and translate such content, combine such content with or incorporate such content into other content and modify and create derivative works of such content; in each case in connection with the Company’s operation of the Site and/or a Service, and in the Company’s other media platforms, applications and services, and those of its affiliated entities. You further waive and forever disclaim all rights of attribution with respect to the use of your content.

 

  1. Use of Services.You must follow any policies made available to you within the Services. Do not misuse the Services. For example, you agree not to interfere with the Services or try to access them using a method other than the interface and the instructions that we provide. You may use the Services only as permitted by law, including applicable export and re-export control laws and regulations. The Company may temporarily or permanently deny, limit, suspend, or terminate the Service, remove content and take technical and legal measures to keep you off the Service at any time and for any reason. In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications. Some of our Services are available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.

 

You agree to the following prohibited uses:

 

  1. You shall not use the Services to harass, embarrass, or threaten any person.

 

  1. You shall not copy, publish, distribute, rent, or resell the Services or Intellectual Property, in whole or in part.

 

  • You understand and agree that we monitor usage on the Site and the Services and that we may share your use of the Site and Services with law enforcement agencies and officials in response to inquiries or if we have reason to believe that your use of the Site and Services is for an unlawful purpose. We may also share your use of the Site and Services as required by law, a court order, a subpoena, or as the Company determines is necessary or advisable to protect its interests.

 

  1. You shall not use the Services as the basis for making decisions to consumers or businesses concerning loans, credit, insurance, employment, leasing, or other decisions. The Services are not to be relied upon by any person, including you, for any purpose. You are solely responsible for all decisions you make in any way utilizing the information generated as a result of using this Service.

 

  1. Updates.

 

THE COMPANY RESERVES THE RIGHT TO AMEND THE SITE AND THESE WEBSITE POLICES IN ITS DISCRETION FROM TIME TO TIME. YOU ARE RESPONSIBLE FOR MONITORING THE SITE FOR UPDATES TO THESE WEBSITE POLICIES. The Company may, but is not obligated to, offer upgrades, updates, and improvements to the Site and Services, and to add or discontinue any Services.

 

These Website Policies control the relationship between the Company and you. They do not create any third-party beneficiary rights.

 

  1. Other WebsitesThe Site may contain links to other websites or mobile applications (“Other Websites”). The Company may or may not own, operate or monitor such Other Websites, their services or content. The information and content posted on any of the Other Websites may not be compatible with your requirements, you may object to their content, or find such content to be objectionable, improper, unlawful or immoral. By linking to any Other Websites, the Company does not endorse, or sponsor their content, or confirm their accuracy, credibility, authenticity, validity, integrity or legality. The Company assumes no responsibility or liability for any third-party services or contents, or their availability. The Services and/or the Site may include paid advertisements, sponsored links and commercial information (“Advertisements”). By clicking links to Advertisements, you may be transferred to a service of an advertiser or receive any other messages, information or offers from the advertiser and from others. The Company is not responsible for any of an advertisers’ practices, including their privacy practices, or for the content of their services, information, messages or offers.

 

  1. Payment.The Company may require you to make payments for Services in immediately available United States dollars by the options available on the Site. All sales on the Site are final. The Company has no obligation whatsoever to issue refunds or credits for purchases on the Site, or otherwise. The Company assumes no responsibility for delays in credit or debit card processing or any other form of payment. You warrant and represent that your use of any credit, debit, or other permitted form of payment is authorized by the holder of such form of payment.

 

  1. Taxes.You are responsible for paying all applicable taxes in connection with your purchase of the Services.

 

  1. Term and Termination. The term of these Terms and Conditions shall begin on the Effective Date and continue until terminated as expressly provided in these Terms and Conditions (the “Term”). You may terminate these Terms and Conditions at any time by delivering an e-mail to kimberly@balancingactlms.com or by calling the Company’s Customer Service Center at the telephone number listed on the Site. The Company may immediately terminate these Terms and Conditions as required by law or due to your breach of any provision of these Terms and Conditions in the Company’s determination. Termination will become effective immediately. Upon termination, all license rights granted herein shall immediately terminate and be revoked, and you will not be allowed to use the Site or purchase Services. You shall be permitted to use the Services you purchased before termination, provided that your continued use will be subject to these Terms and Conditions.

 

  1. Independent PartiesNothing in these Website Policies shall create an employer-employee, partner, joint venturer or agent relationship between you and the Company.

 

  1. Indemnification.You shall defend, indemnify, and hold harmless the Company and its affiliates, and their employees, managers, members, officers, shareholders, directors, agents, representatives, consultants, contractors, insurers, attorneys, successors, and assigns from and against all claims, demands, judgments, losses, liabilities, damages, costs, fees, expenses, including attorney fees and court costs) arising out of your (a) unauthorized use of the Site or Services, (b) breach of these Terms and Conditions, or (c) otherwise prohibited or illegal activity.

 

  1. Disclaimer of Warranty. THE COMPANY: (A) PROVIDES THE SERVICES ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY OR GUARANTEES, (B) MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, AND (C) SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY AGAINST NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. THE COMPANY DOES NOT WARRANT THAT ANY OF THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, OR THAT THEIR CONTENT OR METHOD OF DELIVERY WILL BE FREE OF ERROR (INCLUDING FACTS, STATEMENTS, RETENTION, DELETION, DISCLOSURE OR ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE SERVICE OR WEBSITE, SERVICE LEVELS, DOWNLOAD SPEED, AND WI-FI, HOTSPOT, OR INTERNET CONNECTIVITY), OR THAT DEFECTS THEREIN SHALL BE CORRECTED. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. Limitations of Liability. THE COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY’S TOTAL LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM, UNDER THESE WEBSITE POLICIES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO THE COMPANY IN THE MONTH IN WHICH A CLAIM GIVING RISE TO LIABILITY HEREUNDER OCCURS.

 

  1. Notice of Copyright Infringement. We will do our best to ensure compliance with all federal laws governing copyrights. If you believe that any content available through our Site or Services infringes a copyright claimed by you, you may request removal of those materials (or access to them) from the Site by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

 

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

 

Our designated copyright agent to receive DMCA Notices is:

 

                Shumway Van

                Attention: DMCA Agency Services Department

                310 South St. Mary’s Street, Suite 2100

                San Antonio, Texas 78205

                (210) 503-2800

                shanna@shumwayvan.com

 

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

 

Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

 

  1. Compliance with Applicable Law.You shall comply with all applicable international, federal, state, and local laws, rules, and regulations in your use of this Site and the Services.

 

  1. Notice.All notices provided for herein shall be given either by electronic mail, recognized international express courier, postage pre-paid, or by First Class United States Mail, postage pre-paid, to the address listed on the Site in our case, and to the address(es) you listed on our registration page. Notice shall be deemed received two days following tender to such courier and three days following posting by mail.

 

  1. Dispute Resolution. These Website Policies shall be governed by and construed in accordance with the laws of the State of Texas, without regard to any applicable conflicts or choice of law provisions. You hereby agree to waive any right you may have to participate in any class, group, or representative action or proceeding, and further hereby agree to waive any right you may have to a trial by jury. In the Company’s discretion, the parties hereto irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts of competent jurisdiction located in Bexar County, Texas and the parties hereby waive any objection that venue in such courts is inconvenient, Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) shall apply. In any action at law or in equity or arbitration to enforce or interpret any provision of these Website Policies, the prevailing party shall be entitled to collect from the non-prevailing party, in addition to any damages and injunctive relief, whether at law or in equity, all reasonable costs, fees, and expenses, including, without limitation, attorney fees, costs, and expenses, expert witness fees, deposition transcript fees, postage, long-distance telephone charges, and travel costs.

 

  1. Severability.If any provision of these Terms and Conditions is held by a court or tribunal of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.

 

  1. Assignment.You shall not assign or sublicense any part of these Terms and Conditions, in whole or in part, without the prior written consent of the Company.