Terms of Service
Last Updated: September 18, 2020
Welcome to the Kularise Co. (“Kularise”, “we”, or “our”) website located at http://kularise.co (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site and our platform accessible via our Site that allows individuals (“Teachers”) to view, create, market, sell, and fulfill livestream yoga and other classes (“Classes”) for and to individuals and/or businesses that wish to view, enroll and participate in such Classes (“Students”). To make these Terms easier to read, the Site and our platform and services are collectively called the “Services”. Subject to your compliance with these Terms, you may register through the Services to be a Teacher who creates Classes, and list and advertise such Classes through the Services, or you may use the Services as a Student.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND KULARISE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 19 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms. By accessing our Site or using our Services, you are agreeing to be bound by these Terms and all applicable laws. If you do not agree to be bound by these Terms, you are prohibited from using or accessing this Site or the Services. If you are accessing and using the Services on behalf of a company (such as your employer), institution, or other legal entity, you represent and warrant that you have the authority to bind that company, institution, or other legal entity to these Terms. In that case, “you” and “your” will refer to that company, institution, or other legal entity.
3. Changes to these Terms or the Services. We may update these Terms or the Services at any time in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. We are not obligated, however, to update the Classes or related materials made available as part of the Services.
4. Eligibility and Accounts.
(a) You may use the Services only if you are eighteen (18) years or older and capable of forming a binding contract with Kularise, and are not otherwise barred from using the Services under applicable law.
(b) If you want to access and use the Services as either a Teacher, in order to view, create, market, and/or sell Classes, or as a Student, in order to view, enroll or participate in the Classes, you’ll have to create an account (“Account”).
(c) It’s important that you provide us with accurate, complete and current information for your Account and you agree to keep this information accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account, and you will not be able to make or receive payment, or use other features of the Services. To protect your Account, keep the Account details and password confidential and notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5. The Services; Disputes and Release; Disclaimers.
(a) Generally. Through the Services, we provide a platform enabling Teachers to connect with Students who wish to view, enroll and participate in Classes created by such Teachers. Kularise’s role in this process is solely to provide the technology and platform that enables this connection. Enrollment and participation in Classes involves a direct relationship between a Teacher and a Student. Kularise is not a party to any agreements between Teachers and Students with respect to Classes, and does not have control over and disclaims all liability for the content, quality, timing, legality, failure to provide, or any other aspect whatsoever of any Classes created by Teachers. Kularise makes no representations about the suitability, reliability, or accuracy of the Classes created by Teachers. Kularise’s responsibilities are limited to: (i) facilitating the availability of the Services; and (ii) serving as the limited agent of each Teacher as described above. Although we are neither required to nor commit to do so, we may choose to conduct background checks on Teachers (through the use of third party vendors), to the fullest extent permitted by law.
(b) Creating and Making Available the Classes. When you register to be a Teacher, you’ll be able to create Classes and make them available via the Services. Teachers may also: (i) link any personal social media profiles (e.g. Instagram, YouTube) to their Account profile on the Services (the “Profiles”) for purposes of outreach to current and potential Students; and (ii) promote or advertise their Classes through any such Profiles; provided that all Classes, promotional content and advertisements are subject to prior approval by Kularise. For each Class you create: (1) you may specify the desired skills or other pre-requisites for a Student to participate in and complete the Class, if applicable; (2) if there are any desired skills or other pre-requisites associated with the Class, you must specify, in reasonable detail, instructions sufficient for a Student with the desired skills or other pre-requisites to participate in and complete the Class; and (3) you must comply with all rules and guidelines set by Kularise with respect to Class creation. Teachers have the right, at any time and in their sole discretion, and subject to these Terms, to approve or reject enrollment by a Student in their Class. You agree to use best efforts to continuously and diligently monitor and supervise Students’ participation in and completion of the Class (including by responding to Students’ inquiries). We grant you limited permission to use the Kularise name solely to denote the existence of these Terms, in connection with the advertising and promotion of your Class(es); provided that we must approve your use of the Kularise name in each instance.
(c) Class Availability After Teacher Departure. As a Teacher, if you choose to terminate your access to and use of the Services, your Class(es) will remain available for access on the Services for a period of ninety (90) days from the effective date of such termination, and we will notify Students currently enrolled in such Class(es) or who have chosen to “follow” the Teacher of this remaining window of Class availability. For the avoidance of doubt, Teachers will continue to receive the applicable Class Fees for such Class(es) from enrolled Students during this window of time, but Students will not be charged for access to the Class(es) beyond the ninety (90) day period. If a Student has purchased an auto-renewing package of Classes with the Teacher, Kularise will cancel the auto-renewing package on behalf of the Student at the end of the ninety (90) day period.
(d) Relationship of the Parties. Other than as expressly provided in these Terms, Teachers are not employees, agents or contractors of Kularise, nor are they otherwise in a direct or indirect working or service provider relationship with Kularise. You acknowledge that Kularise does not, in any way, supervise, direct, or control a Teacher or such Teacher’s work created in relation to the Classes. Kularise does not set a Teacher’s work hours or location of work. Kularise will not provide a Teacher with training or any equipment, labor or materials needed for a particular Class. Kularise provides only a platform to permit Teachers to provide Classes directly to Students.
(e) Disputes and Release. Because Kularise is not party to any agreement or interactions between Teachers and Students, in the event that you have a dispute with one or more Teachers or Students (as applicable), you agree to address such dispute directly with the Teacher or Student (as applicable) in question and you release Kularise and our affiliates, officers, directors, agents, investors, subsidiaries, and employees (collectively, “Affiliates”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If a dispute arises between a Teacher and a Student in connection with a Class or otherwise under these Terms, Kularise may, in its sole discretion, facilitate communications between such Teacher and Student in connection with such dispute. If such a dispute is unable to be resolved between such Teacher and Student, Kularise may, in its sole discretion, intervene in such dispute and take any actions Kularise deems appropriate.
(f) No Medical Advice. You understand and acknowledge that physical exercise can be strenuous and subject to risk of serious injury, and that participating in any training, programs or other activities available on the Services may expose you to such risk. You should consult a physician or other qualified health care professional who is familiar with your personal circumstances before beginning any new fitness plan (including yoga) and if you have questions regarding a medical condition or any other matter related to your health and well-being. The programs or other activities presented through the Services are for educational and entertainment purposes only and are not a substitute for medical treatment or advice and are not intended to be used to (i) diagnose, treat, cure, or prevent diseases; (ii) act as a guide for self-treatment; or (iii) act as a substitute for consulting with your physician. You represent and warrant that you know of no reason you should not exercise. Kularise, the Teachers and any other content providers of the Services are not licensed medical care providers or counselors, are not providing medical diagnosis, advice or treatment, and have no expertise in advising on, diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any activity on a known or unknown medical condition.
(g) HEALTH AND EXERCISE DISCLAIMER; ASSUMPTION OF RISKS; LIABILITY WAIVER, RELEASE AND PROMISE NOT TO SUE. WHEN PARTICIPATING IN ANY EXERCISE OR FITNESS PROGRAM AND WHEN USING ANY FITNESS PRODUCTS, DEVICES OR SERVICES, THERE IS THE POSSIBILITY OF PHYSICAL INJURY AND/OR DEATH, TEMPORARY OR PERMANENT DISABILITY, LOSS OF SERVICES, OR DAMAGE TO OR LOSS OF PROPERTY OR PRIVACY, AND YOU ASSUME THE RISK AND RESPONSIBILITY FOR ANY SUCH OCCURRENCES. IN ADDITION, THE USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. NOTWITHSTANDING THE RISKS AND DANGERS INHERENT IN USE OF THE SERVICES, YOU AGREE TO ASSUME ANY AND ALL RISKS CONNECTED WITH USE OF THE SERVICES, EVEN IF ARISING FROM THE NEGLIGENCE OF ANY “RELEASEES” NAMED BELOW OR OTHERS. YOU HEREBY ACKNOWLEDGE AND WILLINGLY ACCEPT THE ABOVE RISKS AND AGREE TO UNCONDITIONALLY WAIVE, RELEASE AND FOREVER DISCHARGE AND HOLD HARMLESS KULARISE AND ITS OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, ASSIGNS, AND THE OWNERS OR LESSEES OF ANY PREMISES USED FOR THE SERVICES (COLLECTIVELY, “RELEASEES”) FROM ANY AND ALL LIABILITY, CLAIMS AND DEMANDS OF WHATEVER KIND OR NATURE NOW KNOWN OR HEREINAFTER KNOWN IN ANY JURISDICTION THROUGHOUT THE WORLD, EITHER IN LAW OR IN EQUITY, IN CONNECTION WITH OR RELATED TO THE SERVICES, WHETHER ARISING OUT OF YOUR PARTICIPATION IN ACTIVITIES PROVIDED FOR BY KULARISE OR FROM THE NEGLIGENCE OF ANY RELEASEES OR OTHERWISE. YOU ALSO PROMISE NOT TO BRING OR ASSERT (OR PERMIT A THIRD PARTY, INCLUDING YOUR HEIRS, FAMILY MEMBERS, EXECUTORS OR ADMINISTRATORS, TO BRING OR ASSERT) ANY CLAIM, DEMAND, SUIT OR ACTION WHATSOEVER THAT YOU MAY NOW OR IN THE FUTURE HAVE AGAINST THE RELEASEES THAT ARISE OUT OF OR ARE CONNECTED WITH THE SERVICES OR THE USE AND EXERCISE OF THE RIGHTS GRANTED TO KULARISE IN THESE TERMS. SUCH CLAIMS, DEMANDS, SUITS AND ACTIONS INCLUDE, BUT ARE NOT LIMITED TO, NEGLIGENCE, LIBEL, VIOLATION OF PRIVACY RIGHTS, EMOTIONAL DISTRESS/PAIN AND SUFFERING, LOSS OF/DAMAGE TO PROPERTY, DEATH, OR BODILY INJURY. YOU UNDERSTAND THAT, EXCEPT AS OTHERWISE AGREED TO BY KULARISE IN WRITING, KULARISE DOES NOT ASSUME ANY RESPONSIBILITY FOR OR OBLIGATION TO PROVIDE FINANCIAL ASSISTANCE OR OTHER ASSISTANCE, INCLUDING BUT NOT LIMITED TO MEDICAL, HEALTH, OR DISABILITY INSURANCE, IN THE EVENT OF INJURY OR ILLNESS. YOU FURTHER UNDERSTAND THAT KULARISE DOES NOT CARRY OR MAINTAIN HEALTH, MEDICAL, OR DISABILITY INSURANCE COVERAGE FOR ANY USER, AND THAT EACH USER IS EXPECTED AND ENCOURAGED TO OBTAIN HIS OR HER OWN MEDICAL OR HEALTH INSURANCE COVERAGE.
6. Payments and Subscriptions. If you are a Teacher, you agree to pay Kularise a fee for use of the Services (or certain portions thereof), depending on the type of subscription (“Subscription”) you select, and you agree to pay such fees. If you are a Student, you will not be charged any fees by Kularise for access and use of the Services.
(a) Class Fees. If you are a Teacher, you may charge one-time, fixed-fees for enrollment in your Class(es). You can determine the fees to be charged for any of your Classes (“Class Fee”) on a fixed-fee basis, subject to your compliance with these Terms and observance of any guidelines Kularise may provide to you in connection with creating Classes (including the then-current pricing information provided for each type of Subscription as set forth at kularise.co/pricing). Students will be able to view Class Fees prior to selecting and enrolling in a Class. For the avoidance of doubt, Kularise does not set the Class Fees for any Classes. Class Fees vary based on the particular Class in question. As a Student, you agree to pay the applicable Class Fee and any associated fees and taxes, if any. For the avoidance of doubt, Students do not need to purchase or enroll in any Class(es) in order to “follow” a Teacher.
(b) Payment Processor. All Class Fees will be paid by you to a third-party payment processor (e.g. Stripe). If payments are remitted by Stripe, you agree to be bound by Stripe’s terms of service at (https://stripe.com/legal). As a Student, you authorize the third-party payment processor to directly remit to Kularise the portion of the fees owed to Kularise and then pay the remainder to the Teacher. The third-party payment processor, and not us, is responsible for properly transacting such payments through its platform, and you agree to release and hold us harmless from any errors, negligence or misconduct of the third-party payment processor.
(c) Kularise Services Fee; Teacher Revenue Share. If you are a Teacher, you hereby authorize us to: (i) collect the Class Fee for each Class from Students on your behalf prior to such Student’s commencement of each Class; and (ii) retain a portion of such Class Fee based on your specific Subscription level (“Kularise Services Fee”). The current Kularise Services Fee, as well as the date on which such Kularise Services Fee is effective, is accessible at kularise.co/pricing, and Kularise may change such Kularise Services Fee at any time, in its sole discretion, which change will be effective after Kularise has provided notice of such change to Teachers via email to the email address provided in their Accounts; provided that any Kularise Services Fee in connection with Classes that have already commenced prior to the effective date of any such percentage changes will be calculated using the percentages in effect on the date of commencement for such Classes. Under no circumstances will any payment be due to a Teacher from Kularise where a Student has not paid for the relevant Class. If multiple Teachers collaborate on a given Class, the Class Fee will be split among each of the Teachers in accordance with the percentages as finally and mutually determined by the Teachers.
(d) Timing and Delivery of Payments. Depending on the type of your selected Subscription, for all Class Fees collected from Students, Kularise (through the third-party payment processor) will pass funds due to Teachers (as applicable): (i) two times per calendar month for Teachers subscribed to the free plan; (ii) on a weekly basis for Teachers subscribed to the basic plan; and (iii) on the following day for Teachers subscribed to the pro plan. Payments due to Teachers will be credited to the Payment Account specified in the applicable Teacher’s Account profile. All monies provided to Teachers will be provided in U.S. Dollars. Teachers are solely responsible for all costs incurred by them in using the Services and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes. Kularise will only pass funds on to Teachers when it has actually collected payment from the applicable Student. Kularise may institute a chargeback policy as it deems appropriate in the event that a Student or such Student’s bank does not honor a payment obligation or if Kularise questions its ability to collect funds.
(e) General. Whether you pay a Class Fee, as a Student, or purchase a Subscription, as a Teacher (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States Dollars. Kularise has no obligation to provide refunds or credits relating to any Classes, but may do so in Kularise’s sole discretion.
(f) Subscriptions. If you purchase a Subscription, you will be charged the monthly or annual (as applicable) Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month or year (as applicable) thereafter, at the rate of the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE KULARISE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month or year (as applicable) starting from the date of the commencement of your Subscription, using the Payment Information you have provided, until you cancel your Subscription. No less than fourteen (14) days, in the case of a Subscription plan that is charged on a monthly basis, and no less than thirty (30) days, in the case of a Subscription plan that is charged on an annual basis, before your Subscription term ends, or otherwise in accordance with applicable law, Kularise will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Kularise. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms. For more information on available Subscriptions, please see information about our Subscription level pricing and features at kularise.co/pricing.
(g) Cancelling Class Fee or Subscription. You may cancel a Transaction for a full refund: (i) within five (5) calendar days of your purchase, if you are a Student provided that you have not already begun the applicable Class or package of Classes; and (ii) within three (3) calendar days of your initial purchase, if you are a Teacher. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR CLASS FEE OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, a Teacher may cancel a Subscription at any time, but please note that cancellation of a Subscription will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You may cancel your Subscription through your account management settings on the Site. Teachers will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If a Teacher cancels a Subscription, such Teacher’s right to use the Services will continue until the end of the then-current Subscription period and will then terminate without further charges.
7. Your Content.
(a) Posting Content. Our Services may allow you to store or share content that includes, without limitation, text (in posts or communications with others), graphics, images, music, software, audio, and video. Anything (other than Feedback) that you post or otherwise make available through the Services, including Class content and materials is referred to as “User Content”. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
(b) Permission to Your User Content. By making any User Content available through the Services you hereby grant us a non-exclusive, perpetual, transferable, worldwide, irrevocable, royalty-free license, with the right to sublicense, to: (i) use, copy, modify (for formatting purposes only), digitize, distribute, repurpose and create derivative works from, publicly display, transmit, and publicly perform your User Content in connection with operating and providing the Services and promoting Kularise and its services via the Internet or through all other media and channels now known or hereinafter developed in which any version of the Services is available now or in the future, without notification to and/or approval by you, except as otherwise required by law; and (ii) to the extent that your or any other person’s name, image, character, voice, performance, signature, and/or any other likeness or indicia (collectively, “Likeness”) is recognizable or is otherwise referenced in any User Content, to use your and any other such person’s Likeness (including any professional name or alias used) and biographical material in connection with our exercise of the license rights granted under this Section and promotion of Kularise and our business generally, each through all media now known or hereinafter developed, and in connection with any of our marketing and promotional materials. You irrevocably waive any right that you may have to inspect and/or approve the use of your Likeness, and/or any copy and/or any other creative elements that may be used in connection therewith, and/or the use to which your Likeness may be applied within the Services. You understand that your Likeness may be retouched, cropped, edited and/or otherwise modified in our sole discretion. It is understood that once distributed through any channels not owned or operated by us, we have no control over the use of your Likeness and will not be liable for any manipulation or unauthorized use of your Likeness by third parties including any social media use or other use. For avoidance of doubt, the right to modify and create derivative works includes the addition of an on-screen logo indicating Kularise or our affiliates as the distributor of your User Content.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content (including your Likeness) under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(d) Removal of User Content. You can remove your User Content by specifically deleting it, to the extent feasible and practicable. You should know that in certain instances, some of your User Content (such as posts or comments you make, including Student Comments, as defined below) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(e) Student Comments. Upon completing a Class, Students will have the opportunity to leave feedback and comments and ratings about their experience with the Class and the applicable Teacher with whom they have interacted (“Student Comments”). We advise Students to be accurate and honest and exercise caution and good judgment when leaving such comments. Once you complete and submit your comments and ratings to the Site you will not be able to go back and edit them. When you post a Student Comment, you acknowledge and agree that the Student Comment is subject to these Terms and our Copyright Policy located at kularise.co/copyright-policy. You should also be aware that you can be held legally responsible for damage to someone’s reputation if your comments are deemed to be defamatory. All Student Comments reflect the opinions of individual Students and do not reflect the opinion of Kularise. We do not monitor or censor comments that are provided by users of the Services and disclaim any and all liability relating thereto. We do reserve the right, however, in our sole discretion, to remove any Student Comments that we deem to be inconsistent with the online activities that are permitted under these Terms. For the avoidance of doubt, Student Comments shall be User Content and subject to Section 7 of these Terms.
8. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
9. Reservation of Rights. We and our licensors exclusively own all right, title and interest in and to the Services, including all associated patent, copyright, trademark, trade secret, moral rights or other intellectual property rights (“Intellectual Property Rights”). You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
10. Rights in Content Granted by Kularise. Subject to your compliance with these Terms, Kularise grants you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and view the content available through the Services (the “Content”) solely in connection with your permitted use of the Services.
11. General Prohibitions and Our Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services, or any individual element within the Services, Kularise’s name, any Kularise trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kularise’s express written consent;
(c) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Kularise or any of Kularise’s providers or any other third party (including another user) to protect the Services or Content;
(d) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Kularise or other generally available third -party web browsers;
(e) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(f) Use any meta tags or other hidden text or metadata utilizing a Kularise trademark, logo, URL or product name without Kularise’s express prior written consent;
(g) Use the Services, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms;
(h) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
(i) Attempt to decipher, decompile, disassemble or reverse engineer any software contained on the Site or otherwise used to provide the Services
(j) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(k) Impersonate or misrepresent your affiliation with any person or entity; or
(l) Violate any applicable law or regulation.
We are not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. DMCA/Copyright Policy. We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright Policy at kularise.co/copyright-policy, for further information.
13. Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We have not reviewed all such third-party websites and resources and provide access only as a convenience, and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. The inclusion of any third-party websites or other resources on the Services does not imply our endorsement of such third-party websites or other resources. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party resources.
14. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your Account, at our sole discretion, at any time and without notice to you. You may cancel your Account or Subscription at any time through your account management settings on the Site. For a Class where the Teacher has set a time limit for completion, please note that if you don’t or are unable to complete the Class within the set period of time for any reason (including by suspension of your Account), you will not receive a refund for the Class and will be required to pay any applicable Class Fees in order to re-enroll in that Class. If Kularise terminates your access to and use of the Services for reasons other than your failure to comply with these Terms, Kularise will, at its discretion, refund to you any applicable Class Fees, if you are a Student, or any applicable Subscription Fees, if you are a Teacher. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 5(a), 5(d), 5(e), 6 (only for payments due and owing to Kularise prior to the termination), 7(b), 7(c), 9, 8, 11, 14, 15, 16, 17, 18, 19, and 20.
15. Warranty; Disclaimers.
(a) General. THE SERVICES AND THE CLASSES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SERVICES AND THE CLASSES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, BUG-FREE, OR DEFECT-FREE BASIS. WE MAKE NO WARRANTY CONCERNING THE QUALITY, ACCURACY, LIKELY RESULTS, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF THE USE OF THE INFORMATION OR CONTENT ON THE SERVICES.
(b) No Liability for User Conduct. NEITHER KULARISE NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE SERVICES. KULARISE DOES NOT RECOMMEND ANY PARTICULAR CLASS OR TEACHER. KULARISE DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY TEACHER’S PROFESSIONAL ACCREDITATION, REGISTRATION, OR LICENSE.
16. Indemnification. You will indemnify, defend (at our option), and hold us and our Affiliates (including each of the Releasees) harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, legal and accounting fees arising out of or in any way connected with: (a) your access to or use of the Services; (b) your User Content; or (c) your violation of these Terms. Kularise will have the right to pre-approve any settlement of any claim or dispute subject to this Section.
17. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KULARISE OR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OR INABILITY TO USE THE SERVICES OR (INCLUDING OTHER USERS OF THE SERVICES WITH WHOM YOU HAVE ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE SERVICES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR OUR SERVICE PROVIDERS HAVE BEEN NOTIFIED, ORALLY OR IN WRITING, OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSES.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED: (I) THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO US FOR USE OF THE SERVICES; OR (II) ONE-HUNDRED U.S. DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO US, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KULARISE AND YOU.
18. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by and construed in accordance with the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 19 “Dispute Resolution” below, you submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, CA for all Disputes (as defined below) that you and we are not required to arbitrate, and you and we each waive any objection to jurisdiction and venue in such courts.
19. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Kularise agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Kularise are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 19(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 19(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND KULARISE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 19(e) of these Terms (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. General Terms.
(a) Force Majeure. Neither party will be liable in damages or have the right to terminate these Terms for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Kularise and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Kularise and you regarding the Services.
(c) Severability. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
(d) Construction. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify these Terms, except as expressly provided in these Terms or as the parties may agree in writing. Failure to promptly enforce a provision of these Terms will not be construed as a waiver of such provision.
(e) Interpretation. The headings to Sections of these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect their interpretation. Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise. For purposes of these Terms, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.
(f) No Joint Venture or Partnership. Nothing contained in these Terms will be deemed to create, or be construed as creating, a joint venture, employment, agency, partnership, or other relationship between the parties.
(g) Assignment. You may not assign, delegate or otherwise transfer these Terms, in whole or in part (including but not limited to any rights to Classes), by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(h) Notices. Any notices or other communications provided by Kularise under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(i) Waiver of Rights. Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kularise. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Contact Information. If you have any questions about these Terms or the Services, please contact us at firstname.lastname@example.org. If you have a question or complaint, you may reach us at the address above. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.ku