PAUL H. DRAZNIN, NEVER GIVE UP, MYBEARABLELIFE™ TERMS OF SERVICE
LATEST REVISION JANUARY 30, 2012
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THIS WEBSITE (“SITE”). THESE TERMS ARE THE LEGAL AGREEMENT BETWEEN YOU, THE PERSON ACCESSING THIS SITE, AND NEVER GIVE UP LLC, THE SITE’S OWNER (“NEVER GIVE UP”, “WE” OR “US”). YOU ACCEPT THESE TERMS BY USING OR ACCESSING THE SITE. WE MAY UPDATE THESE TERMS FROM TIME TO TIME WITHOUT NOTICE, AND YOU AGREE TO BE BOUND BY THE UPDATED TERMS IN EFFECT WHEN YOU ACCESS THE SITE.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OR OTHERWISE ACCESS SITE.
DESCRIPTION OF SERVICES
The Site is owned and operated by Never Give Up LLC, a Michigan corporation, P.O. BOX 252285, West Bloomfield, MI 48325-2285 (as previously defined, “Never Give Up”). The Site provides users with various services (“Services”) including access to content such as text, graphics, video, and data (collectively, “Site Content”). Some Site Content may be available only upon payment of a fee. Site Content may also include content submitted by other users (“User Submitted Content”) but does not include content submitted by you, such as postings, emails through the Site, phone calls and phone messages, or other text or content of any kind (“Your Content”).
The Services may include communication services such as boards, chat areas, news groups, forums, communities, personal web pages, or other communications facilities designed to enable you to communicate with certain users of the Site, or the public at large. The Services may be personalized meetings in person, over telephone, or internet (voice and/or video). Furthermore, Services may include referral to meet with third parties, or visit third party web sites.
As a condition to accessing the Site, Never Give Up may require you to establish a user account which may be secured by credentials such as a user id or password. You will submit complete, accurate and truthful information in connection with your user account. You will keep your credentials confidential and will not permit others to use your credentials to gain access to the Site. You are responsible for activities or transactions using the Site that are performed using your account. Please secure your credentials as necessary to prevent unauthorized access of your account.
You must be at least 18 years old to use the Site. If you are under 18 years of age you are not permitted to access the Site or Site Content. Because of this restriction, no information obtained by the Site is subject to the Child Online Privacy Act.
OWNERSHIP OF SITE CONTENT
Site Content is subject to copyrights, trademarks, trade secrets and other intellectual property rights. Never Give Up and its licensors own all intellectual property rights to Site Content. Without limiting the foregoing, My Bearable Life™ and MyBearableLife.com™ are trademarks of Never Give Up.
All rights in and to the Site Content not expressly granted to you in these Terms are reserved by Never Give Up. There are no implied licenses under these Terms. If you make any derivative work, improvement or other modification of the Site Content or any copyrightable work embodied in the Site Content, then you will assign and hereby do assign to Never Give Up all of your copyright, patent and other intellectual property rights in such derivative work, improvement or modification regardless of whether you were permitted under these Terms to make such derivative work, improvement or other modification.
LICENSE GRANTED TO YOU
Subject to these Terms, We grant you a limited, personal, worldwide, non-transferable, non-exclusive license to: (a) access the Site and the Services for your own use; (b) print, display, and download the Site Content onto your hardware, solely for your own use and not for further distribution to or access by others; provided, however, that you have paid all applicable fees for Site Content; and (c) post on other websites links to the home or main page of the Site (and no other pages); provided that such links are clearly and conspicuously labeled as links to My Bearable Life™.
You may not: (a) rent, lease, sublicense, distribute, transfer or timeshare the Services or Site Content or any portion thereof; (b) allow any third party to use or have access to the Site Content that you download, print or otherwise reproduce; (c) modify, adapt, alter, translate, or create derivative works of the Site Content except to post Your Content consistent with these Terms; (d) use the Site Content or the Services to create, modify or organize a collection of information apart from the Site Content, whether for your own internal use or use by others; (e) use the Site Content or Services as a component of or a basis for a database, product or service to be provided to third parties; for example, you may not use the Site Content to provide any consulting or other service to a third party, conduct an assessment, inventory or audit of a third party, or assist a third party in developing a compilation of information; (f) remove, delete, modify or obscure any copyright, trademark or proprietary rights notices on or in the Site or Site Content; (g) rebrand the Site Content by displaying it in a manner that suggests that a party other than Never Give Up is the originator of the Content; (h) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of software included in the Site Content except and only to the limited extent that such activities are expressly permitted by applicable law; (i) circumvent or disable any technological measure employed by Never Give Up to limit copying of or access to the Site Content; or (j) publish the results of any testing or benchmarking of the Site Content.
LINKS TO THIRD PARTY SITES
You retain all ownership of Your Content that you send, display, or post to the Site; provided, however, that with respect to Your Content you grant to us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable license to use, reproduce, make derivative works of, copy, display, distribute, or transmit Your Content in any and all media now or hereafter known, with full right of sublicense.
You represent and warrant that Your Content will not: (a) directly or indirectly infringe any copyright, trademark, patent, privacy, publicity, or other right of any person; (b) reveal, without proper authorization, any trade secret or other confidential information of another person; (c) be defamatory, abusive, harassing, hateful, offensive or otherwise unlawful; (d) be obscene, indecent, lewd, profane or otherwise in bad taste or inappropriate; (e) be deceitful, misleading or fraudulent; or (f) contain software or links to software designed to damage, interfere, or expropriate any system or data of the Site or otherwise.
Never Give Up does not generally screen Your Content; however, we may remove Your Content in whole or in part from the Site for any reason, including Your Content with respect to which you have breached any provision of these Terms.
We may, at our sole discretion and without prior notice to you, terminate your account and right to access the Site and Services for any reason. Upon such termination, all of your license and other rights under these Terms shall immediately terminate. Your representations, warranties and indemnities hereunder will survive termination of your account or of these Terms.
RULES OF CONDUCT
You agree to abide by rules and instructions with respect to use of the Site that are posted by Never Give Up from time to time. Without limiting the foregoing, you also agree that, in connection with your use of the Site, Services or Site Content, you will comply with these Terms and all applicable laws and regulations and that you will not: (a) impersonate another person or misrepresent yourself or any aspect of your identity, whether to Never Give Up or other users; (b) submit content on behalf of any other person or in exchange from any consideration from a third party; (c) collect information about other users on the Site without their consent; (d) interfere with the Site’s operation including the ability of other users to access the Site; (e) post to the Site or otherwise submit any advertisement or commercial solicitation, including solicitation for any type of pyramid scheme or offering of securities; (f) transmit bulk, unsolicited email or other communications, including spam or chain letters; (g) submit content that breaches any representation or warranty that you have made under these Terms; (h) threaten, stalk or harass another person; (i) breach the security of another person’s account or gain unauthorized access to another person’s computer or network; (j) access the Site or Services using a third-party network or communications facility in a manner that violates your applicable terms of service with such third party; (k) access the Site using another person’s account credentials; (l) impair, damage, disable, overburden the Services or another person’s ability to access the Services or Site Content; or (m) disparage any person, including Never Give Up or another user.
Use of the Site, Services and Site Content is free of charge unless otherwise posted on the Site. Some Site Content such as certain data or services provided may be subject to a fee upon downloading or prior to receipt of such services. Posted fees do not include sales, excise, value-added or other taxes, which you are solely responsible for paying.
DISCLAIMER OF WARRANTIES FOR SERVICES
the site, services and site content are all provided “as is” and without WARRANTY of any kind. USE OF THE site and site content is entirely AT YOUR OWN RISK. NEVER GIVE UP AND ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEVER GIVE UP AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY OR CURRENCY WITH RESPECT TO THE SITE CONTENT. NEVER GIVE UP MAKES NO WARRANTY THAT THE CONTENT IS ERROR-FREE OR ACCURATE, WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED. NO EMPLOYEE, AGENT, REPRESENTATIVE, OR AFFILIATE OF NEVER GIVE UP HAS AUTHORITY TO BIND NEVER GIVE UP TO ANY ORAL REPRESENTATION OR WARRANTY CONCERNING THE CONTENT. ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THESE TERMS WILL NOT BE ENFORCEABLE.
NEVER GIVE UP DISCLAIMS ALL LIABILITY FOR THE SERVICES PROVIDED ON THE SITE. WE DO NOT PROMISE OR GUARANTEE RESULTS, NOR DO WE OFFER ANY MEDICAL, LEGAL OR OTHER PROFESSIONAL ADVICE. MANY OF THE TOPICS COVERED ON THE SITE ARE RELATED TO ANGER, TRAUMA, STRESS AND ANXIETY RELIEF, AND ARE COMPLEX EVOLVING AREAS OF STUDY AND CONCERN. THESE TOPICS MAY NOT BE COMPLETELY DETAILED IN THE SITE CONTENT OR SERVICES RENDERED. WE ARE NOT RESPONSIBLE FOR ERRORS, MISINTERPRETATIONS, OR OMISSIONS RELATED TO SITE CONTENT. INCLUDED IN THE SITE CONTENT MAY INVOLVE NOVEL AND CONTROVERSIAL IDEAS TO ASSIST WITH A VARIETY OF TOPICS. WE DO NOT REPRESENT ANY OF THE SITE CONTENT TO BE A SUBSTITUTE FOR MEDICAL OR PSYCHOLOGICAL TREATMENT.
DISCLAIMER OF PAUL H. DRAZNIN
MR. PAUL H. DRAZNIN IS A LIFE COACH AND ANGER MANAGEMENT COACH FOR NEVER GIVE UP. MR. DRAZNIN IS A LICENSED SOCIAL WORKER IN THE STATE OF MICHIGAN AND DOES NOT REPRESENT TO BE LICENSED OR REGISTERED IN ANY OTHER STATE.
EXCLUSION AND LIMITATION of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEVER GIVE UP WILL NOT BE LIABLE HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY OTHER TYPE OF DAMAGE OR LIABILITY OF ANY NATURE, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, INCLUDING LIABILITY ARISING FROM THIRD-PARTY CLAIMS, LOST BUSINESS, LOSS, CORRUPTION OR INACCURACY OF DATA, SERVICES OR TECHNOLOGY, LOST PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY WHETHER FORESEEABLE OR NOT AND REGARDLESS OF WHETHER NEVER GIVE UP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, UNDER APPLICABLE LAW NEVER GIVE UP IS LIABLE FOR ANY TYPE OF DAMAGES, NOTWITHSTANDING THE EXCLUSION OF DAMAGES IN the preceding section, THEN NEVER GIVE UP’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED the amounts, if any, THAT YOU paid to access the services or site content, REGARDLESS OF THE NUMBER OF CLAIMS ASSERTED. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You will defend, indemnify, and hold harmless Never Give Up and its suppliers from and against any claim by a third party arising out of related to your use of the Site or the Services, including your breach of these Terms, submission of Your Content, or your use of Site Content, even if licensed under these Terms. You agree to indemnify, defend and hold harmless Never Give Up, its officers, directors, employees, agents and third parties, from any damages, claims, losses, reasonable legal fees and costs, and expenses of any kind related to your actions or Your Content.
We respect the intellectual property of others, and expect the same of the users of the Site. We are an online service provider as defined in the Digital Millennium Copyright Act (“DMCA”), and do not monitor or screen media which is uploaded to our servers by users of the Site.
We will expeditiously respond to clear notices of alleged copyright infringement that comply with the DMCA. The text of the DMCA can be found at the U.S. Copyright Office website (http://www.copyright.gov/legislation/dmca.pdf). If Never Give Up receives notification of claimed copyright infringement according to the DMCA, Never Give Up’s response will include removing or disabling access to the accused infringing materials, and/or terminating subscribers whether or not they are liable for infringement under any jurisdiction.
If you are a copyright owner or authorized under any exclusive right under applicable copyright laws, please report alleged copyright infringement taking place on or through the Site through a written notice to the Designated Agent listed below (preferably email) including the following information: (a) Specific identification of the copyrighted work that is being claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site may be provided; (b) Specific identification of the location of the material that is claimed to be infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, with information reasonably sufficient to permit us to locate the material. You should provide the specific URL or URLs where the allegedly infringing material is located; (c) Specific information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (d) The following statement in the body of the notice: “I hereby state that I have a good faith belief that the disputed use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (e.g. as a fair use)”; (e) The following statement in the body of the notice: “I hereby swear, under penalty of perjury, that the information in this notice 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”; and (f) The full legal name and a physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NEVER GIVE UP’s Designated Agent to receive notification of alleged infringement under the DMCA is:
Attn: Copyright Agent
NEVER GIVE UP LLC
6679 Heather Heath
West Bloomfield, MI 48322 USA
If you have received notification that an item has been removed due to a copyright complaint, Never Give Up has deleted Your Content from the Site at the request of the copyright’s owner.
If you believe Your Content has been deleted in error, a counter notification may submitted pursuant to sections 512(g)(2) and (3) of the DMCA. To file a complete counter notification, please provide written notice to the Designated Agent listed above including the following: (a) Your name, address, and telephone number; (b) Identification of the source address of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (c) Your name, address, and telephone number; (d) The following statement: “I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located, or if outside the United States, for any judicial district in which Never Give Up may be found”; (e) The following statement: “I will accept service of process from the person who provided the original complaint under subsection (c)(1)(C) or an agent of such person”. (f) The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled in error”; (g) Your signature, in physical or electronic form.
Upon receiving a valid counter notice, we will send a copy of the notice to the person who filed the original complaint. If we do not receive notice within 10 business days from the submitter of the original complaint seeking a court order, we will remove the complaint and may replace Your Content that was removed.
Pursuant to Section 512 (i)(1)(a) of the DMCA, we will disable or terminate the accounts of repeat infringers in appropriate circumstances. Please note that under applicable law, anyone who knowingly materially misrepresents information regarding copyright infringement can be held liable for damages.
If accessed outside of the USA, you are responsible for compliance with all local laws. You agree that you will not use the Site in any way that is prohibited by local laws or regulations.
Use of the Site is not authorized in any jurisdiction that does not give effect to all the provisions found in these Terms.
EXPORT CONTROL PROVISIONS
You will comply with all applicable export and import control laws and regulations in your use of the Site Content and, in particular, you will not export or re-export the Site Content from the United States or any other country without all required government licenses. You will defend, indemnify, and hold harmless Never Give Up and its suppliers from and against any claim by a third party arising from our related to your possession or use of the Licensed Content, including activities that are licensed under this Agreement.
You and Never Give Up are independent contractors. There are no third party beneficiaries to these Terms and no partnership, agency or other fiduciary relationship is created under these Terms.
You may not assign or transfer, by operation of law or otherwise, any of your rights under these Terms (including your licenses with respect to the Site Content) to any third party without Never Give Up’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Never Give Up may freely assign its rights or delegate its obligations under these Terms.
Except as otherwise provided herein, each party’s rights and remedies under these Terms are cumulative. You acknowledge that the Site Content contains intellectual property of Never Give Up and its suppliers, that any actual or threatened breach of these Terms will constitute immediate, irreparable harm to Never Give Up for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
All waivers must be in writing and (if the waiving party is an entity) signed by an authorized representative. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of these Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
These Terms will be governed by the laws of the State of Michigan without giving effect to any choice of law principles that would require the application of the laws of a different country or state. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to these Terms.
Any legal action between you and Never Give Up arising out of these Terms or your use of the Site, Services or Site Content must be instituted exclusively in the federal or state courts located in Oakland County Michigan, and you consent to jurisdiction and venue in such courts.
Except as set forth below, these Terms constitute the final and entire agreement between the parties regarding your access to the Site, Services or Site Content. These Terms supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
Never Give Up reserves the right to change these Terms under which the Site, Services or Site Content are is offered. The most current version will be on this page, and we may notify you via posting to our website or e-mail to your email listed with your associated account. We encourage you to review the Terms to stay informed of any updates.
Some Site Content may be available for download subject to separate agreements, which may provide you with additional warranty and other rights with respect to that content. If any provision of those separate agreements conflicts with these Terms, then the separate agreement shall control with respect to your use of the software or other content downloaded pursuant to that separate agreement.
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