Last Updated: July 7, 2017
IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE WEBSITE.
- Account. In order to use certain features of the Website, you must register for an account. You may be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password, and You agree to accept responsibility for all activities that occur under your account or password. You agree that the information You provide to MarkDCarlson.com, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), then You agree to immediately notify MarkDCarlson.com. You may be liable for the losses incurred by MarkDCarlson.com or others due to any unauthorized use of your Website account.
- Child User. If You are a User of the Website and are under the age of 13 (“Child User”), You may not register an account for the Website without consent and approval from your legal parent or guardian. A Child User that begins the registration process for himself or herself without a Parent User may have the registration process restricted until a Parent User approves or assumes responsibility for the Child User account or has signed an agreement form provided in the class syllabus.
- User Content. MarkDCarlson.com may permit (a) the posting and/or publishing by You and other Users of notes, questions, comments, ratings, reviews, images, videos and other audio-visual materials and communications (collectively, “User Postings”) and (b) the posting, creation, or modification by You and other users of computer code (including source code and object code) (“User Code”) (User Postings and User Code, collectively, “User Content”). You understand that whether or not such User Content is published, MarkDCarlson.com does not guarantee any confidentiality with respect to any submissions.
- License Grant to MarkDCarlson.com. By posting, submitting or distributing User Content on or through the Website, You hereby grant to MarkDCarlson.com a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, distribute, prepare derivative works of, use, make, have made, sell, offer for sale, import, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) License Grant to Users.
- (a) User Postings. By posting, submitting or distributing User Postings through the Website, You hereby grant to each User of the Website a non-exclusive license to access and use your User Postings in any manner permitted or made available by MarkDCarlson.com on or through the Website.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting, creating, or publishing them. You represent and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize MarkDCarlson.com Users to use and distribute your User Content as necessary to exercise the licenses granted by You in these Terms and in the manner contemplated by MarkDCarlson.com and these Terms; (2) your User Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (3) your User Content does not contain any viruses, adware, spyware, worms, or other malicious code.
- Access to Your User Content. MarkDCarlson.com may permit Users to share their User Content with a select group of other Users or make their User Content public for all (even non-Website users) to view. You acknowledge and agree that, although MarkDCarlson.com may provide certain features intended to allow you to restrict some User Content you create from others, MarkDCarlson.com does not guarantee that such User Content will never be accessible by others.
- User Content Disclaimer. You understand that when using the Website You will be exposed to User Content from a variety of sources and that MarkDCarlson.com is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against MarkDCarlson.com with respect thereto.
Digital Millenium Copyright Act. It is MarkDCarlson.com policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to MarkDCarlson.com DMCA Notification Guidelines. MarkDCarlson.com will promptly terminate without notice your access to the Website if You are determined by MarkDCarlson.com to be a “repeat infringer.” A repeat infringer is a User who has been notified by MarkDCarlson.com of infringing activity violations more than twice and/or who has had User Content or any other user-submitted content removed from the Website more than twice.
- Proprietary Materials. The Website is owned and operated by MarkDCarlson.com. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content, and all other elements of the Website (the “Website Materials”) are protected by the United States and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights.
- Licensed Content. markdcarlson.com may make available on the Website certain educational videos, exercises, and related supplementary materials that are owned by MarkDCarlson.com or its third-party licensors. markdcarlson.com grants to you a non-exclusive, non-transferable right to access and use the Licensed Content as made available on the Website by MarkDCarlson.com solely for your personal, non-commercial purposes. Unless expressly indicated on the Website that a particular item of Licensed Content is made available to Users under alternate license terms, you may not download, distribute, sell, lease, modify, or otherwise provide access to the Licensed Content to any third party.
- (a) Alternate Licenses. In certain cases, markdcarlson.com or its licensors may make available Licensed Content under alternate license terms, such as a variant of the Creative Commons License (as defined below) (each, an “Alternate License”). Where expressly indicated as such on the Website, and subject to the terms and conditions of these Terms, the applicable Licensed Educational Content is licensed to You under the terms of the Alternate License. By using, downloading, or otherwise accessing such Licensed Content, You agree to comply fully with all the terms and conditions of such Alternate License.
- (b) Creative Commons License. Unless expressly otherwise identified on the Website with respect to a particular item of Licensed Content, any reference to the “Creative Commons”, “CC” or similarly-phrased license shall be deemed to be a reference to the Creative Commons Attribution-CC BY-NC-ND 4.0 United States License (the “Creative Commons License”).
- Non-Commercial Use. The Licensed Content and Licensed Code are intended for personal, non-commercial use only. Without limiting the foregoing, and notwithstanding the terms of any Alternate License for such Licensed Content, the Licensed Content may not be used, distributed or otherwise exploited for any commercial purpose, commercial advantage or private monetary compensation, unless otherwise previously agreed in writing by MarkDCarlson.com.
- Crediting MarkDCarlson.com. If You distribute, publicly perform or display, transmit, publish, or otherwise make available any Licensed Content or any derivative works thereof.
YOU AGREE NOT TO:
- use the Website for any commercial use or purpose unless expressly permitted by markdcarlson.org in writing, it being understood that the Website and related services are intended for personal, non-commercial use only;
- post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
- post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Website accounts of others without permission, or perform any other fraudulent activity;
- delete the copyright or other proprietary rights notices on the Website or on any Licensed Content, Licensed Code, or User Content;
- assert, or authorize, assist, or encourage any third party to assert, against MarkDCarlson.com or any of its affiliates or licensors any patent infringement or other intellectual property infringement claim regarding any Licensed Content, Licensed Code, or User Content You have used, submitted, or otherwise made available on or through the Website;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Website (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
- use the Website for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- defame, harass, abuse, threaten or defraud Users of the Website, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Website, Licensed Content, Licensed Code, or User Content, features that prevent or restrict use or copying of any content accessible through the Website, or features that enforce limitations on the use of the Website, Licensed Content, Licensed Code, or User Content;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Website or any part thereof, except and only to the extent expressly permitted by MarkDCarlson.com herein or to the extent the foregoing restriction is expressly prohibited by applicable law; or
- intentionally interfere with or damage the operation of the Website or any user’s enjoyment of it, by any means, including without limitation by participation in any denial-of-service type attacks or by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
Third-Party Sites, Products, and Services; Links. The Website may include links or references to other websites or services solely as a convenience to Users (“Reference Sites”). markdcarlson.org does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
- Termination by MarkDCarlson.com, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with MarkDCarlson.com or your use of the Website and remove and discard all or any part of your account, User profile, and User Content, at any time. markdcarlson.org may also in its sole discretion and at any time discontinue providing access to the Website, or any part thereof, with or without notice. You agree that any termination of your access to the Website or any account You may have, or portion thereof, may be effected without prior notice, and You agree that MarkDCarlson.com will not be liable to You or any third-party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies markdcarlson.org may have at law or in equity. As discussed herein, MarkDCarlson.com does not permit copyright, trademarks, or other intellectual property infringing activities on the Website, and will terminate access to the Website, and remove all User Content or other content submitted, by any Users who are found to be repeat infringers.
- Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Website, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of markdcarlson.org in operating the Website, or (v) any content or information transmitted through the Website, is to terminate the Terms and your account. You may terminate the Terms at any time by deleting your login account with the Website and discontinuing use of any and all parts of the Website.
Indemnification. You agree to indemnify, defend, and hold harmless markdcarlson.org, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (“MarkDCarlson.com Indemnitees”) from any claims, losses, damages, liabilities, and expenses (including legal fees and expenses), arising out of any use or misuse of the Website, any violation of the Terms, or any breach of the representations, warranties, and covenants made herein, whether by You or by any Child User associated with you if you are a Parent User or Coach. MarkDCarlson.com reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify MarkDCarlson.com, and You agree to cooperate with MarkDCarlson.com defense of these claims. markdcarlson.org will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
Disclaimers; No Warranties
- No Warranties. THE WEBSITE, AND ALL DATA, INFORMATION, SOFTWARE, WEBSITE MATERIALS, CONTENT, USER CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MARKDCARLSON.COM, AND ITS AFFILIATES AND LICENSORS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MARKDCARLSON.COM OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
- Content. MARKDCARLSON.COM, AND ITS SUPPLIERS, LICENSORS, AND AFFILIATES, DO NOT WARRANT THAT THE WEBSITE OR ANY DATA, USER CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
- Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF CONTENT, WEBSITE MATERIALS, SOFTWARE, OR DATA THROUGH THE WEBSITE (INCLUDING THROUGH ANY API’S) IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS THEREFROM.
- Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
Limitation of Liability and Damages.
- Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL MARKDCARLSON.COM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE WEBSITE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH MARKDCARLSON.COM, EVEN IF MARKDCARLSON OR MARKDCARLSON.COM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, MARKDCARLSON.COM LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Damages. IN NO EVENT WILL MARKDCARLSON.COM OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR YOUR INTERACTION WITH OTHER WEBSITE USERS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE WEBSITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
- Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT MARKDCARLSON.COM HAS OFFERED THE WEBSITE AND ENTERED INTO THE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MARKDCARLSON.COM, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MARKDCARLSON.COM WOULD NOT BE ABLE TO PROVIDE THE WEBSITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- Notice. MarkDCarlson.com may provide You with notices, including those regarding changes to the Terms, by email, regular mail, postings on the Website, or other reasonable means. Notice will be deemed given twenty-four hours after email is sent unless markdcarlson.com is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Website. In such case, notice will be deemed given three days after the date of mailing. A notice posted on the Website is deemed given 30 days following the initial posting.
- Waiver. The failure of MarkDCarlson.com to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by MarkDCarlson.com.
- Dispute Resolution and Arbitration.
- (a) Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any principles of conflicts of law.
- (b) Arbitration. For any claim related to the Terms or the Website, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either MarkDCarlson.com or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR“) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- (c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to the Terms or MarkDCarlson.com will be filed only in the state or federal courts in and for Utah County, Utah, and each of You and MarkDCarlson.com hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action regarding arbitration. Notwithstanding this, MarkDCarlson.com shall still be allowed to apply for injunctive or other equitable relief to protect or enforce its intellectual property rights in any court of competent jurisdiction.
- (d) Claims. YOU AND MARKDCARLSON.COM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder may not be transferred or assigned by You without MarkDCarlson.com prior written consent, but may be assigned by MarkDCarlson.com without consent or any restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.
- Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
- Disclosures: The Website is hosted in the United States, and the services provided hereunder are offered by MarkDCarlson.com, 115 South 700 East, Spanish Fork, UT, 84054; email at [email protected].