These Terms of Service (the “Terms”) govern your use of the Positive Acorn website located at www.positiveacorn.com (the “Site”) and constitute a contract between you (“you” or “User”) and Positive Acorn, LLC, an Oregon Domestic Limited Liability Company (“Positive Acorn” or “we”). If you do not agree to accept the Terms in their entirety, please discontinue your use of the Site immediately. We may periodically change the Terms in our sole discretion, and your continued use of the Site constitutes your acceptance of the revised Terms. Please check this “Terms of Service” page for updates from time to time, as this is typically the only manner in which we will notify you of any changes to the Terms.
Types of Users
Depending on how you use the Site, different portions of the Terms may apply to you in different ways. If you have registered on the Site as described in these terms below, you are a “User”. If you do not register, but view the site or interact with the Site in any other way, you are a “Visitor.”
Ownership of Intellectual Property
The Site contains text, data, images, code, audio, video, or some combination thereof (collectively “Content”). The Site also utilizes various types of functionality (“Functionality”). Unless otherwise expressly noted in these Terms, all Content and functionality of the Site, including any and all copyrights, trademarks (and all associated goodwill), patent rights, trade secret rights, and all other intellectual property rights (collectively “Intellectual Property Rights”), are the property of Positive Acorn or its licensors. Positive Acorn does not claim ownership in the trademarks or service marks owned by other third parties.
Registration and Your Account
Notice of Copyright Infringement
If you believe that your content has been used on the Site in a manner that constitutes copyright infringement, please provide our Copyright Agent with the following information: (A) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (B) a description of the copyrighted work that you claim has been infringed; (D) a description of where the material that you claim is infringing is located on the Site; (C) your address, telephone number, and email address; (E) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (F) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Our Copyright Agent for notice of claims of copyright infringement can be reached as follows: Copyright Agent, email@example.com
Permitted Use of Site and Prohibited Activities
Subject to these Terms and the Licensing Agreement which is incorporated by reference herein, Positive Acorn, its name, marks, and materials, as well as its site and underlying code are the property of Positive Acorn and protected under copyright. Some information, such as downloadable resources and course content, are shared with users and visitors. In these instances, specific guidelines for fair use may accompany these courses or materials and constitute an extension of this Terms of Service Agreement. In these instances Users and Visitors have the right to consume these materials under the restrictions of copyright, including but not limited to the use of proper attribution.
This Site is not intended for individuals under the age of 13. If you are under the age of 13, you may not access or use the Site even if you have obtained permission from your parent or legal guardian. Without limiting any other restrictions set forth in these Terms, in using the Site you may not:
Engage in, facilitate, or promote any conduct that is unlawful, tortious, or that constitutes a breach of a contract between you and a third party;
Engage in, facilitate, or promote any conduct that is threatening, abusive, harassing, or invasive of another person’s privacy;
Solicit, collect, or transmit to a third party any private or personal information that could identify another User without permission from that User or;
Transmit unsolicited commercial or bulk messages (“spam”);
Interfere with or disrupt the Site, or the servers or networks connected to the Site;
Use the username or password of another User at any time, disclose your password to any third party, or allow any third party to access the Site by using your username or password, or the username and password of another User;
Use any automated process to access or use the Site in any manner;
Modify, reverse engineer, reroute, sublicense, redistribute, or resell the Site or any portion thereof;
Interfere with or disrupt the Site, or the servers or networks connected to the Site; or
Operate a business through the Site.
Positive Acorn may in its sole discretion and at any time suspend, terminate, or refuse to provide User privileges with respect to the Site with or without notice.
We attempt to describe Site content as accurately as possible. However, Positive Acorn does not warrant that product descriptions are accurate, complete, reliable, current, or error-free. Please note that the provisions of this Section apply only to Content found on the Positive Acorn site. Your access to third party sites or purchases from third-party sites, whether they are referenced on or linked from the Site or not, are governed by different terms and we are not a party to such transactions.
DISCLAIMER OF WARRANTIES AND ASSUMPTION OF RISK
THE SITE AND ALL ASSOCIATED CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND YOUR USE OF THE SITE IS AT YOUR OWN RISK. DEF EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, DEF MAKES NO WARRANTY (A) THAT THE SITE WILL MEET YOUR REQUIREMENTS, (B) THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THAT THE INFORMATION YOU MAY OBTAIN THROUGH YOUR USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (D) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OTHERWISE OBTAINED BY YOU THROUGH OR IN CONNECTION WITH THE SITE WILL MEET YOUR EXPECTATIONS, OR (E) THAT ANY ERRORS IN THE SITE WILL BE CORRECTED.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE SITE IS OBTAINED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM SUCH CONTENT.
NO ADVICE OR OTHER INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DEF OR THROUGH THE SITE WILL CREATE ANY WARRANTY WITH RESPECT TO THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DIENER EDUCATION FUND NOR ITS CONTRACTORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR PROVIDERS, WILL BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, EVEN IF DEF OR OUR CONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT, DEF’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED $100 OR THE AMOUNT OF FEES PAID BY YOU TO DEF DURING THE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE, WHICHEVER WAS GREATER. YOU AGREE THIS AMOUNT IS REASONABLE BASED ON THE TRANSACTION BETWEEN YOU AND DEF.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless Positive Acorn, its Contractors, and each of their respective directors, officers, members, managers, employees, agents, representatives, licensors, and providers from and against any and all losses, expenses, damages and costs, including reasonable attorneys' fees, arising out of your breach of the Terms or otherwise from your use of the Site. Positive Acorn reserves the right to assume partial or exclusive control over the defense of any matter subject to indemnification by you, in which case you agree to fully cooperate with Positive Acorn in asserting any available defenses.
These Terms, together with any documents referred to in the Terms, constitute the entire agreement and any contemporaneous agreements between you and Positive Acorn concerning your use of the Site, and supersede any prior agreements between you and Positive Acorn concerning the same subject matter. You may be subject to additional terms and conditions when you use other Content or services, or the Content or services of a third-party.
These Terms and your use of the Site as contemplated under the Terms must be in accordance with
Positive Acorn’s remedies under these Terms are cumulative, and the failure of Positive Acorn to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision, or of any other right or provision.
If any provision, or any portion of any provision, of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree to give effect to the parties' intentions as reflected in the provision to the extent permitted by applicable law, and the other provisions of the Terms, and any other portions thereof, remain in full force and effect in order to best accomplish the original intent of the parties.
Any dispute arising out of or in connection with these Terms or your use of the Site will be governed by the laws of the State of Oregon, without regard to its conflict-of-laws principles.
Any dispute or claim that arises out of or that relates to this agreement, or to the interpretation or breach thereof, or to the existence, scope, or validity of this agreement or the arbitration agreement, shall be resolved by private arbitration in Clackamas County Oregon and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties acknowledge that mediation helps parties settle their dispute and any party may propose mediation whenever appropriate.
Any dispute not subject to the arbitration provision must be brought in Clackamas County in the State of Oregon or, subject to applicable jurisdictional requirements, in the appropriate United States District Court, and you consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waive any objection to such venue.
You also agree that the remedy at law for your breach or threatened breach of the Terms may, by its nature, be inadequate, and that in the event of such breach or threatened breach Positive Acorn will be entitled, in addition to damages, to a restraining order, temporary and permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or proving that any monetary damage has been sustained. You further agree that regardless of any statute or law to the contrary, any cause of action or proceeding against Positive Acorn and arising out of or in connection with the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the Terms are for convenience only and have no legal or contractual effect. Whenever the word “include,” the word “includes,” or the word “including” is present in the Terms, such word will be deemed to be followed by the phrase “without limitation.”
Positive Acorn may send you notices by transmitting information through the Site or by using the Registration Data you provided in establishing an Account. You may contact Positive Acorn by sending an email to firstname.lastname@example.org. No Third Party Beneficiaries
Nothing in these Terms, whether express or implied, is intended or will be construed to confer on any person, other than the parties to the Terms, any right, remedy, or claim under or with respect to these Terms.