Terms of Service

Effective Date: January 15, 2020

1. Our Invitation to You

1.1 Welcome to My Support Guards (“us”, “we”, “ours”)! We invite you to access our websites and our products and services and applications (including mobile applications, the “Applications”) (the web sites, products, services and applications collectively, the “System”), but please note that your invitation is subject to your review and agreement with these Product Terms (collectively with all other operating rules, policies and procedures that we may publish on this website or in any of our applications, and our privacy policy “Terms”). These Terms apply to you whether you are a user, or a provider of products and services, and whether or not you registered.

1.2 Privacy Policy. Please also read carefully our Privacy Policy at MySupportGuards.com/privacy-policy/. You agree that our Privacy Policy (as may be updated from time to time) governs our collection and use of your personal information.

1.3 Waivers. These Terms include a class action waiver and a waiver of jury trials and require binding arbitration on an individual basis to resolve disputes. These Terms limit the remedies that may be available to you in the event of a dispute.

2. The Products and Services

SupportGuards is an online caregiving system providing diverse solutions for family caregivers. The platform affords two (2) FREE services and a premium upgrade membership with enhanced services and support. Caregiving is an experience in life that no one is prepared to have. With MySupportGuards, families can improve the experience for themselves and their loved one. Our services are provided primarily through third party suppliers.

2.1 FREE: The Carely caregiving mobile app brings families and friends together around the care of their loved ones. From status updates to appointment tracking, the app is there to help you care, share, and connect with ease.

2.2 FREE: A 30-minute consultation with certified long term care planners from the nation’s oldest and largest provider, LTCI Partners, inc.

LTCI Provides:

Dedicated, salaried long term care consultations from licensed experts. These experts can provide advice and solutions related but not limited to, review of your current long term care plan, educate you on options, planning and answer questions related to Long Term Care, Medicare, home care, nursing homes, and all things related to caregiving costs and who pays for various options and level of support.

2.3 Premium Membership Features and Services:

2.3.1 A premium upgrade option of $25.00 monthly is available providing support and solutions for two (2) members. The membership subscription is a 1 year annual membership and is billed direct via credit card, at $25.00 per month. Services include an exclusive SupportGuards elder law bundle of services from Legalzoom named Lifeplan. These services include:

2.4 Ask The Expert
Premium members also receive our “Ask the Expert” portal which is an online caregiving advocate resource to guide/recommend solution providers from a national preferred provider network. Staffed by subject matter experts, members can also speak to an expert associate for a more personal experience.

These network providers can assist with basic questions with respect but are not limited to, Medicare, home healthcare options and caregiving related needs to properly identify and refer members to the ideal network provider.

3 Eligibility of Users

3.1 Eligibility of Users. We may, in our sole discretion, refuse to offer the System to any person or entity and change our eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you and the right to access the System is revoked where these Terms or use of the System is prohibited or to the extent offering, sale or provision of the System conflicts with any applicable law, rule or regulation. Further, the System is offered only for your use, and not for the use or benefit of any third party.

3.2 You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances use the System.

4 Your Account

4.1 Your Account. To sign up for the System, you must create an account (an “Account”) by registering for an Account on the System. You agree not to create an Account or use the System if you have been previously removed or banned by us from any part of the System. We reserve the right in our sole discretion to suspend or terminate your Account and refuse any and all current or future use of the System (or any portion thereof) at any time for any reason. You agree that we will not be liable to you or to any third party for any suspension or termination of your Account or any refusal by us of any use of the System (or any portion thereof). You must provide accurate and complete information and keep your Account information updated. You shall not:

(1) select or use as a username a name of another person with the intent to impersonate that person;

(2) use as a username a name subject to any rights of a person other than you without appropriate authorization; or

(3) use, as a username, a name that is otherwise offensive, vulgar or obscene.

4.2 User Identities. We do not attempt to confirm, and do not confirm, any user’s purported identity. Users are responsible for determining the identity and suitability of others who users contact via the System. We are not responsible for any damage or harm resulting from interactions with any other user of the system, including users who are providers of products and services.

5 License

5.1 License Grant to You. Subject to your compliance with these Terms, we grant to you a limited, revocable, non-exclusive, non-transferable license, without the right to sublicense, to use the System solely for your private, personal, non-commercial use.

5.2 Restrictions on You. Except as expressly specified in these Terms, you shall not

(1) modify, or make derivative works of, disassemble, reverse compile or reverse engineer any part of the System;

(2) license, transfer, sell, rent, lease, distribute, assign, host, sublicense or otherwise commercially exploit the System, in whole or in part;

(3) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the System (including images, text, page layout, or form);

(4) use any metatags or other “hidden text” using our name or trademarks;

(5) access the System in order to build a similar or competitive website, product, or service;

(6) copy, reproduce, distribute, republish, download, display, post or transmit any part of the System in any form or by any means; or

(7) remove or destroy any copyright notices or other proprietary markings contained on or in the System.

You will comply with any technical restrictions in the System that allow you to use the System only in certain ways. Any unauthorized use of the System terminates the licenses granted by us pursuant to these Terms. We make no representation that the System are appropriate for use in locations other than the United States.

5.3 Non U.S. Residents. The information provided by the System is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the System or any portion of the System, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provides.

5.4 Modification. We reserve the right, at any time, to modify, suspend, or discontinue the System (in whole or in part) with or without notice to you. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the System or any part thereof. By continuing to access or use the System after we have posted a modification on the System you are indicating that you agree to the modification and these Terms. If the modifications are not acceptable to you, your only recourse is to cease using the System.

5.5 Ownership. You acknowledge that

(1) the System are and will remain our sole property and is subject to protection under U.S. and foreign copyright laws and

(2) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the System and content made available through the System are owned by us or its licensors or suppliers.

Our names, logo, trademarks and the product names associated with the System belong to us (or our licensors or suppliers, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the System transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms.

5.6 General Availability. We will generally make the System available continuously. However, we will, from time to time, make the System unavailable for maintenance and upgrades, and we reserve the right to make the System unavailable for any reason. You agree that we have no liability for any damages whatsoever arising from any interruption, suspension or termination of the operation of the System.

5.7 The Internet. The System is subject to the limitations and delays inherent in the use of the Internet and software. You agree that we are not responsible for any damages resulting from such limitations and delays.

5.8 United States. The System is available worldwide, but our data processing operations take place in the United States. If you use the System, you acknowledge that you may be sending electronic communications (including your personal account information and data), through computer networks owned by us and third parties located in the United States and other countries. As a result, your use of the System will likely result in interstate and possibly international data transmissions, and your use of the System shall constitute your consent to permit such transmissions.

5.9 Third Party Services. We may from time to time engage certain affiliates or other third parties to provide technical or other Systems relating to all or part of the System, and you hereby agree that such third party involvement is acceptable.

5.10 Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the System (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the System, or by other means of communication. You acknowledge and agree that all Feedback you give us will be our sole and exclusive property and you hereby irrevocably assign to us all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the Feedback.

6 Rules of Conduct.

6.1 In General. As a condition of use, you promise not to use the System for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the System.

6.2 Specifically.

6.2.1 You shall not (and shall not permit any third party to)

(1) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;

(2) interfere or attempt to interfere with the proper working of the System or any activities conducted on the System;

(3) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the System (or other accounts, computer systems or networks connected to the System);

(4) 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 System to send altered, deceptive or false source-identifying information;

(5) run any form of auto-responder or “spam” on the System;

(6) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the System (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the System for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such);

(7) recruit or otherwise solicit any user to join third-party services or websites that are competitive to us;

(8) make the functionality of the System available to multiple users through any means; or

(9) otherwise take any action in violation of our guidelines and policies.

6.2.2 You shall abide by all applicable local, state, national and international laws and regulations. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to

(1) satisfy any applicable law, regulation, legal process or governmental request,

(2) enforce these Terms, including investigation of potential violations hereof,

(3) detect, prevent, or otherwise address fraud, security or technical issues,

(4) respond to user support requests, or

(5) protect the rights, property or safety of us, our users and the public.

7 Third-Party Services.

The System also contains links to other websites, which are not operated by us (the “Linked Sites”). We have no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites is subject to the terms of use and service contained within each such site.

8 Payments.

8.1 Payments. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for services purchased through the System. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to purchase services through the System, you agree to pay through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with the applicable payment terms and you authorize us, via the applicable Payment Processor, to charge your chosen payment provider (“Payment Method”). Such charges for your purchase may include state and local sales tax. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

8.2 Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, via the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable purchase upon demand.

8.3 Current Information Required. You must provide current, complete and accurate information for your Payment Method. You must promptly update all information to keep your Payment Method current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password.

9 Termination.

9.1 Subject to this Section, these Terms will remain in full force and effect while you use the System.

9.1.1 We may terminate your Account or your access to all or any part of the System at any time, with or without cause, with or without notice, effective immediately, which may involve deletion of your data associated with your Account from our live databases.

9.1.2 If we exercise our discretion under these Terms to terminate, any or all of the following can occur with or without prior notice or explanation to you:

(1) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the System, your Account, your data, or receive assistance from Customer Service,

(2) any pending or accepted future purchases will be immediately terminated,

(3) we may communicate to your seller that a potential or confirmed purchase has been cancelled,

(4) you will not be entitled to any compensation for purchase (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Account.

9.2 Termination of Your Account. If you wish to terminate your Account, you may do so by following the instructions in the System.

9.3 Limitation of Liability. We have no liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your data.

9.4 Survival. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

10 Warranty Disclaimer; Limitations; Indemnifications

10.1 Your Release of Us. To the maximum extent permitted by applicable law, you hereby forever discharge and release us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to:

(1) the System;

(2) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the System’ users’ communications.

10.2 Limitation of Warranties. To the maximum extent permitted by applicable law, you expressly acknowledge and agree that the System are provided “as is”, “as available”, with all faults and without warranty of any kind, statutory, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, licensors, and partners do not warrant that:

(1) the System will be secure or available at any particular time or location;

(2) any defects or errors will be corrected;

(3) any content or software available at or through the System is free of viruses or other harmful components; or

(4) the results of using the System will meet your requirements.

10.3 Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to:

(1) your use of, or inability to use, the System;

(2) your violation of these Terms;

(3) your violation of applicable laws or regulations;

We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

10.4 Limitation of Liability.

10.4.1 To the maximum extent permitted by law, the System is available “As Is.” you expressly understand and agree that:

(1) your use of the System and the purchase and use of any products are all at your sole risk. The System is provided and products are sold on an “as is” and “as available” basis. To the maximum extent permitted by law, we expressly disclaim all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.

(2) we do not warrant that

(A) the System will meet all of your requirements;

(B) the System will be uninterrupted, timely, secure or error-free; or

(3) any material downloaded, products purchased from the us or otherwise obtained through the use of the System is done at your own discretion and risk and you are solely responsible for any damage to your computer or other device or loss of data resulting from the download or use of any such material.

(4) no advice or information, whether oral or written, obtained by you from us or through or from the System shall create any warranty not expressly stated in these Terms.

10.4.2 You expressly understand and agree that we and our subsidiaries, affiliates and licensors, and our and their respective officers, employees, agents and successors shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, cover or other intangible losses (even if we have been advised of the possibility of such damages) resulting from:

(1) the use or the inability to use the System;

(2) the cost of procurement of substitute goods and services resulting from any goods, products, data, information or services purchased or obtained or messages received or transactions entered into through or from the System;

(3) unauthorized access to or the loss, corruption or alteration of your transmissions, content or data;

(4) statements or conduct of any third party on or using the System, or providing any services related to the operation of the System;

(5) our actions or omissions in reliance upon your account information and any changes thereto or notices received therefrom;

(6) your failure to protect the confidentiality of any passwords or access rights to your account information;

(7) the acts or omissions of any third party using or integrating with the System or offering products in through the System;

(8) any advertising content or your purchase or use of any advertised or other third-party product or System;

(9) the termination of your account in accordance with these Terms;

(10) any action taken in connection with an investigation by us or law enforcement authorities regarding your or any other party’s use of the System; or

(11) any action taken in connection with copyright or other intellectual property owners;

(12) any direct damages in excess of (in the aggregate) of the lesser of

(A) the amount paid for the applicable purchase giving rise to the liability or

(B) $500.00

and the existence of more than one claim will not enlarge this limit; or

(13) any other matter relating to the System.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. The limitations of damages set forth above are fundamental elements of the basis of the agreement between us and you.

10.5 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with us and affects your rights. It contains procedures for Mandatory Binding Arbitration and a Class Action Waiver.

10.5.1 Contact Us First. If a dispute arises between you and us, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with us regarding the System by emailing: [email protected]

10.5.2 Applicability of Arbitration Agreement. All claims and disputes in connection with these Terms or the use of any product or service provided by us that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.

10.5.3 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Bergen County, New Jersey. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

10.5.4 Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

10.5.5 Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and us, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

10.5.6 Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and we waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.

10.5.7 Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Bergen County, New Jersey.

10.5.8 Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

10.5.9 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

10.5.10 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

10.5.11 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.

10.5.12 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Bergen County, New Jersey for such purpose.

10.6 Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the internal laws of New Jersey, consistent with the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

10.7 Injunctions. You agree that in the event you incur any damages, losses or injuries that arise out of our acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction preventing any exploitation of the System or any part thereof, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of any part of the System.

10.8 Time to Bring a Claim. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the System or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.

11 Changes

These Terms are subject to revision. We will notify you of any changes to our Terms by posting the new Terms here www.care.ly/terms. After we make the change and we will change the “Effective Date” above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on the System. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes. These changes will be effective immediately for new users of the System. Continued use of the System following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.

12 Miscellaneous.

12.1 Entire Agreement and Severability. These Terms are the entire agreement between you and us with respect to the System and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the System. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

12.2 Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.

12.3 Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.

12.4 Relationship. Your relationship to us is that of an independent contractor and no agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. We have no special relationship with or fiduciary duty to you.

12.5 Electronic Communication. The communications between you and us use electronic means, whether you use the System or send us emails, or whether we post notices on the System or communicate with you via email. For contractual purposes, you

(1) consent to receive communications from us in an electronic form; and

(2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing.

The foregoing does not affect your non-waivable rights. Electronic notices should be sent to [email protected].

12.6 No Waiver. Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

12.7 Headings; Construction. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation. The word “including” means “including without limitation.”