Terms of Service

Last updated: April 18, 2017

Terms of Service

Acceptance of Terms of Service

In consideration for accessing and using the services and products, including, but not limited to, ACCELER8 application (collectively, the "Service"), provided by Acceler8, LLC, a Minnesota limited liability company (the “Company”), you accept and agree to be bound by the terms and provisions of these Terms of Service (this “TOS”). This TOS apply to and govern your usage of the Service. IF YOU DISAGREE WITH ANY TERMS OF THIS TOS, YOU SHOULD NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE SERVES AS YOUR CONSENT TO THIS TOS.

Modifications to Terms of Service

This TOS may change without notice and you accept any such modifications with your continued use of the Service. If you disagree with any modification to this TOS, you must immediately discontinue use of the Service.

Scope of Use of the Service

You acknowledge that your use of the Service is limited to a non-transferable license on any product you own or control.

Adult Usage Only and Your Authority

In using the Service, you represent, warrant, and agree that you are at least eighteen (18) years old, possess legal guardian consent, or are otherwise able to legally enter into a contract and accept this TOS. In using the Service, you also affirm that you are at least thirteen (13) years old. If you are under the age of thirteen (13), you are not authorized to use the Service. If you are providing any information regarding a third party, you represent and warrant that you have the authority to provide such information from the third party to the Company.

If you provide access to the Service to individuals who are under the age of eighteen (18), you represent and warrant that you have: (1) obtained their parents or legal guardians’ permission to use the Services; (2) provided the parents or legal guardians with copies of this TOS; (3) obtained the parents or legal guardians’ express agreement to this TOS; and (4) provided the Company with proof of your compliance with the provisions of this Paragraph upon request. You further agree that you are solely responsible for complying with all applicable laws, including, but not limited to, data privacy, related to patients, students, and individuals who you provide access to the Service.

Additionally, in using the Service, you represent and warrant that (1) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (2) you are not listed on any U.S. government list of prohibited or restricted parties.

Unauthorized Use

Some portions of the Service are restricted and require authorization for access (e.g., username and password). Unauthorized use of or access to these areas is prohibited. Actual or attempted unauthorized use of or access to such areas may result in criminal and/or civil prosecution. Attempts to access such areas without authorization may be viewed, monitored, and recorded; and any information obtained may be given to law enforcement organizations in connection with any investigation or prosecution of possible criminal activity. If you are not an authorized user of such areas or do not consent to continued monitoring, you should not attempt to access such areas.

Accuracy of Information Provided by You

You agree that all information you provide to the Company is true, current, complete, and accurate.

You represent and warrant that you provided notice to, and obtained consent from, any third party whose personal data you supply to the Company. You further warrant that to the extent you provided personal data about a third party to the Company, you provided that third party with notice about this TOS. You accept all liability and consequences resulting from your failure to provide notice or receive consent from such individuals or for your providing outdated, incomplete, or inaccurate information.

Payment Processing

If you are purchasing items from the Service, you must use a valid credit card. The Company may use a third party to accept and process payments you make on the Service. In using such payment service, you agree that, in addition to this TOS, the third party’s terms and conditions, if any, apply to your usage of the third party’s service. You further agree to hold the Company harmless for all such transactions and look solely to that payment processor for any concerns you may have about how your payment was processed or your payment information was stored or handled.

Subscriptions

Subscriptions are billed on a monthly basis. Your subscription will renew monthly using your payment method selected. If you have a credit card on file, your card may automatically be charged in advance for the next month of subscription services. You may cancel your subscription upon thirty (30) days’ advance written notice to the Company. Once you cancel your subscription, your use of the Service shall cease. You will not receive a credit for any unused time of your subscription.

Term and Termination of Service

This TOS shall automatically renew each month, unless a party hereto provides thirty (30) days’ advance written notice to the other party.

Refunds

The sale of the Service is final. No refunds are provided.

Automatic Payments in the Event of Default

If you provided payment information to the Company, and sums are due and owing from you to the Company, and/or you are in default of your obligations under this TOS, you authorize the Company to deduct/charge any sums due and owing from your payment source(s). If you commence a credit card chargeback for any rightful charge due under this TOS, you agree the Company shall be allowed to charge your credit card or any other payment method on your account an administrative charge of $100 per chargeback in addition to any and all other amounts due and owing to the Company.

Code of Conduct

Your use of the Service shall only for be for lawful purposes and must be consistent with the terms, conditions, and policies set forth in this TOS. You agree to not use the Service or anything related to the Service for any unlawful or otherwise prohibited means, including, but not limited to, unlawful discrimination, harassment, obscene images, or adult content. Additional prohibited uses include:

  1. Use the Service in any manner that could damage, disable, overburden, or impair any servers or the network(s) connected to any Service server, or interfere with any other party’s use and enjoyment of the Service;
  2. Attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to any Service server or to any of the website through hacking, password mining, or any other means;
  3. Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service;
  4. Use data mining, robots, screen scraping, or similar data gathering and extraction tools on the Service;
  5. Use any metatags or any other “hidden text” utilizing the Company’s name, service, or trademarks or trade dress without the Company’s express written consent;
  6. Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
  7. Publish, post, upload, distribute, or disseminate any inappropriate, profane, defamatory, obscene, indecent, or unlawful topic, name, material, or information;
  8. Upload, or otherwise make available files that contain images, photographs, software, or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same;
  9. Use any material or information, including images or photographs, which are made available through the Service in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
  10. Upload files that contain viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another;
  11. Harvest or otherwise collect information about others who use the Service;
  12. Use the Service in connection with surveys, contests, pyramid schemes, chain letters, junk e-mail, spamming or any duplicative or unsolicited messages (commercial or otherwise);
  13. Direct traffic, post links, advertise, or engage in any similar conduct related to other websites, companies, competitors, or services;
  14. Use the Service if you are not able to form legally binding contracts;
  15. Any attempt to copy or mirror the information, data, content, or coding from the Service without first obtaining express written permission from the Service administrator;
  16. Unlawful use of any person’s image, voice, or likeness in any audio-visual or data file;
  17. Any attempt to reverse engineer or reconstruction any portion of the Service; and
  18. Use the Service to violate or infringe on the rights of any third party, including, but not limited to, engage in copyright infringement.

You agree to fully comply with all applicable laws and regulations. You further agree to cooperate in any governmental investigation regarding your use of the Services. You further agree you are and will adhere to all applicable state and federal laws and regulations.

Breach of This TOS

The Company reserves the right to cancel or terminate your use of the Service, if, in its sole discretion, you breach, or the Company reasonably believes you breached this TOS or any other obligation to the Company. Without limiting the forgoing, you agree that all of the following may be considered a material breach of your obligations under this TOS: (1) your failure to abide by any provision of this TOS or any other agreement you have with the Company; (2) your failure to pay any amounts due to the Company; (3) your communication of inaccurate information to the Company, including your failure to promptly update your information; or (4) your violation of the Company’s Code of Conduct.

If any of the foregoing events occurs, the Company may provide you with a written notice describing the breach; however, you recognize, understand, and agree that the Company is not obligated to send any such notice of default and may immediately suspend or terminate your account or the Service without notice.

Maintenance/Site Time

You agree that the Company may perform maintenance whenever it deems reasonably necessary to the Service, which may result in periodic outages of the Service. Maintenance is generally scheduled for off-peak hours, such as weekends and evenings.

The Company is not liable for any unforeseen or unexpected system outage due to unavailability of utilities or supplies, acts of God, natural disaster, labor strike or shortage, or any other condition that is reasonably outside of its control.

Additionally, you acknowledge that Apple Inc., a California corporation (“Apple”), has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.

Intellectual Property Rights

You agree that the Company holds all right, title, and interest to the Service, its websites, and any information and technology used to provide the Service. You acknowledge that no title or interest in such intellectual property rights is being, or has been, transferred to you. You further agree to make no claim of interest in the Service.

All content including, but not limited to, text, graphics, downloads, and software included on the Service is the Company’s property or its licensors’ property and protected by U.S. and international copyright laws.

You also grant the Company a non-exclusive license to use, reference, post, identify, or otherwise utilize your intellectual property rights that you submit or provide to the Company using the Service. Such information will be used by the Service in conjunction with marketing the Service.

In the event of any third party claim that the Service or your possession or use of the Service infringes upon the third party’s intellectual property rights, you acknowledge that Apple shall not be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

Disclaimer of Warranties

THE COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE AND ANY RELATED SOFTWARE OR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVILABLE" BASIS. THE COMPANY DOES NOT CONTROL THE FLOW OF DATA OR ALL CONTENT THAT MAY BE AVAILABLE ON THE SERVICE. UNLESS OTHERWISE PROVIDED IN WRITING AND SIGNED BY AN AUTHORIZED AGENT OF THE COMPANY, THE COMPANY DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. EXCEPT AS EXPLICITLY WRITTEN IN A DOCUMENT SIGNED BY AN AUTHORIZED AGENT OF THE COMPANY, THE COMPANY PROVIDES NO WARRANTY REGARDING THE SERVICES PURCHASED OR OBTAINED FROM THE SERVICE, THE COMPANY, OR ANY THIRD PARTY ASSOCIATED OR AFFILIATED WITH THE COMPANY.

In the event of any failure to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service to you; provided, however, Apple shall have no other warranty obligation with respect to the Service.

Confidentiality and Account Security

The following terms apply to your usage of secured areas of the Service (e.g., where you need a username and password). The Company shall treat the information you provide in secured areas of the Service as confidential. The secured areas of the Service include industry-recognized security protections to aid in keeping your information confidential and secure; however, you also understand and agree that with the onslaught of highly sophisticated hackers, no electronic service can provide absolute security of your information.

One of the best ways you can help maintain security of your confidential information is to safeguard your account. You agree and understand that you are solely responsible for your account security settings, protection of your password, and all consequences that stem from activities occurring with your account. You are encouraged to proactively take steps to enhance your personal security measures. These measures may include using “strong” passwords that consist of lower case and capitalized letters, as well as numbers and other characters; regularly changing passwords; and preventing the disclosure of passwords to any third parties.

You agree that the Company is not responsible for any unauthorized use of your account. You should not share your login information with anyone and should routinely monitor your account usage. The Company will never request your password. If you suspect that your account or login information has been compromised, you should immediately change your password and contact the Company. You agree to immediately notify the Company of any suspected security breaches of your account by providing notice to:

Acceler8, LLC
226 Washington Avenue North, Suite 300
Minneapolis, Minnesota 55401 USA
info@Acceler8App.com

In the event the Company receives any subpoena or court order mandating the Company to disclose information about you or your data, the Company will attempt in good faith to notify you (based on the information provided in your account profile) before it makes the disclosure. The Company will make an effort to notify you so that you have an opportunity to obtain a court injunction preventing the disclosure. You agree to reimburse and promptly pay the Company for all expenses and costs, including the Company’s internal staff time and for external experts, including attorneys, that it may utilize in (1) responding to the subpoena, court order, or other governmental mandate; (2) notifying you of the same; and (3) any other work it deems reasonably necessary to carry out the intent of this TOS, its Privacy Policy, and other internal policies or procedures.

User Content

If you are an organization that uses the Service to collect personal information from individuals, you acknowledge and agree that you will not collect or cause to be collected and shared with the Company or hosted on the Company’s servers certain types of personal information that could trigger state breach notification laws in the event the information is accessed by an unauthorized person, including, but not limited to, social security numbers, driver’s license numbers, bank account or credit card numbers, unless such information is provided to the Company in a system specifically designed to protect and store such information. If such personal information is shared with the Company or hosted on its servers in a manner that the Company deems to be insecure, the Company has the right, but not the obligation, in its sole discretion, to delete and remove any personal information stored on its systems. In the event that an incident of unauthorized access or disclosure of such data triggers state breach notification laws because of your breach of this Paragraph, you agree that you will be wholly responsible for the timing, content, cost, and method of any such notice and compliance with such laws.

Product Claims

You acknowledge that Apple is not responsible for addressing any claims you or any third party may have relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims, (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement, and (3) claims arising under consumer protection or similar legislation.

Assumption of Risk

When you access the Service, download or upload content on the Service, proceed to other websites linked to the Service, or interact with the Service in any manner, you do so at your own discretion and risk. In other words, you are solely responsible for any damage done to your electronic device or other property, including, but not limited to, the loss or corruption of data.

Customer Support

Without limiting the forgoing disclaimer of warranties or assumption of risk sections, the Company provides e-mail support for the customers of the Service. Support can be reached by sending an e-mail to: info@Acceler8App.com.

Indemnification

As a user of the Service, you agree to and hereby do release, indemnify, defend, and hold harmless the Company and all of its agents, affiliates, subsidiaries, licensors, and assigns from any and all claims, actions, proceedings, or demands and all liabilities, claims, damages, losses, costs, and expenses, including reasonable attorneys’ fees and expenses, made by any third party or relating to or arising under violations of this TOS, your submissions to the Service, your infringement of any third parties’ intellectual property rights, your use of the Service, or your alleged violation of any rights of another. This Paragraph shall not affect nor impair any person’s right to lawfully pursue claims against other users of the Service for their alleged violations of the law. This indemnification obligation is in addition to any other rights or remedies the Company may have in law or equity.

You agree that the Company shall have the right to participate in the defense of any claim asserted against it. You also agree that the Company shall be entitled to retain counsel of its own choosing at your cost.

You further agree to notify the Company of your knowledge of any claim against it. You agree to cooperate fully with the Company during such proceedings.

Right to Refuse Service

The Company, in its sole discretion and without any liability to it, reserves the right to refuse service to any person or entity in compliance with applicable law.

Survival of This TOS

Your obligations under this TOS shall continue to apply to you even if you are no longer using the Service.

Reports of Abuse

If you have any reason to believe that the content on the Service violates any law, that any user of the Service is using the Service to violate the law, or that any user is violating this TOS, you may inform the Company in writing about the facts and circumstances of the alleged abuse/violations and request the Company to conduct an investigation into the allegations. The Company reserves the right to remove accounts, content, or postings that the Company, in its sole discretion, believes is offensive, illegal, or otherwise inappropriate.

With respect to claims of copyright infringement made under the Digital Millennium Copyright Act (“DMCA”), you may e-mail info@Acceler8App.com with your lawful takedown request. Such e-mail must include the following:

  1. A physical or electronic signature of the copyright owner or authorized agent of the copyright owner;
  2. Detailed identification of the copyrighted work;
  3. Detailed identification of the infringing material allegedly on the Site;
  4. Your full contact information, including your address, telephone number, and an email address;
  5. A statement that you have a good faith belief that the use of the copyrighted material is unauthorized by the copyright owner or the law; and
  6. A statement, made under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

The Company shall comply with the DMCA provisions of forwarding via e-mail any such communication to the account holder that allegedly engaged in the infringing conduct. If you receive a DMCA takedown notice and believe it was in error, you may send a counter notice by responding to the Company’s e-mail notice and following the steps below:

  1. Your physical or electronic signature;
  2. Identification of the material in which you removed or disabled access to along with the location where the material appeared before it was removed or access to it was disabled;
  3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  4. Your full contact information (i.e., name, address, and telephone number), and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the Company may be found, and that you will accept service of process from the person who provided the original DMCA notification.

If the Company receives a valid counter-notice, the Company shall forward such notice via e-mail to the sender of the original DMCA takedown notice.

If the Company receives, in its sole discretion, an unreasonable amount of DMCA takedown notices or believes you are violating the rights of third parties, you agree that the Company may disable your account without notice and terminate the Service. Notwithstanding any applicable obligations the Company may have under the DMCA, you agree that you will directly handle all copyright disputes by yourself and without participate of, or expense to, the Company.

Retention of Records

You agree to comply with all applicable governmental laws, ordinances, rules, and regulations related to the retention of records. Under no circumstances shall the Company be liable for your failure to retain necessary records, nor will the Company’s retention or non-retention of records act to alleviate your duty under the law.

Notices and Communication

Notices that you send to the Company must be delivered via first class mail to the following address:

Acceler8, LLC
226 Washington Avenue North, Suite 300
Minneapolis, Minnesota 55401 USA

You may also e-mail the Company notices to info@Acceler8App.com so long as you place “LEGAL NOTICE” in the subject line of the e-mail, and the Company actually receives the e-mail.

You authorize the Company to send any notices to you based on the information you provide to the Company. The Company is not responsible if you fail to keep your contact information up to date.

Choice of Law, Jurisdiction, and Venue

All purchases from the Service are deemed made within the State of Minnesota.

This TOS shall be interpreted and construed in accordance with the laws of the State of Minnesota, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction, as if this TOS were a contract wholly entered into and wholly performed within Minnesota.

You agree that any claim, dispute, action, or litigation based hereon, relating to or arising out of this TOS or related to the Service shall be brought and maintained exclusively in the state or federal courts with jurisdiction in Hennepin County, Minnesota. Similarly, you agree and irrevocably submit to the jurisdiction of the state or federal courts with jurisdiction in Hennepin County, Minnesota, for the purpose of any such litigation as set forth above. You expressly waive any objection of venue and jurisdiction, including, but not limited to, arguments that such litigation has been brought in an inconvenient forum.

Exclusive Remedy and Damages Cap

You agree that the Company’s entire liability, and your exclusive remedy, in law, in equity, or otherwise, with respect to any claim you assert against the Company related to the Service, this TOS, or procurement of other Service, is limited solely to the amount you actually paid for the Service to the Company within the past twelve (12) months. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY PECUNIARY LOSS RELATED TO THE COST OF PROCURMENT OF SUBSTITUTE SERVICES, LOST EARNINGS, WAGES, BACK WAGES, FUTURE WAGES, OR STATUTORY PENALTIES) ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE, INABILITY TO USE THE SERVICE, OR ANY OTHER HARM YOU CLAIM IN WHICH THE COMPANY MAY BE RESPONSIBLE.

Time Limitations for Action

You hereby agree that any cause of action arising out of or related to the services provided to you by the Company must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

Waiver of Jury Trial

EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS TOS OR RELATED TO THE SERVICE. THIS PARAGRAPH APPLIES TO ALL DISPUTES WITHOUT LIMITATION, INCLUDING, BUT NOT LIMTED TO, DISPUTES OVER AN AWARD OF ATTORNEYS’ FEES.

No Third-Party Beneficiaries

Nothing in this TOS is intended to confer upon any third party any rights, remedies, obligations, or liabilities; provided, however, Apple and its subsidiaries are third-party beneficiaries to this TOS, and Apple may enforce this TOS against you as a third-party beneficiary thereof.

Restriction of Assignment

You may not assign any of your rights or delegate any of your duties under this TOS without the prior written consent from the Company. Any attempt by your creditors or another third party to obtain an interest in your rights under this TOS is voidable at the Company’s option.

Restrictions on International Use; Export and Import Compliance

Use of the Service and the transfer, posting, and uploading of software, technology, and other technical data via the Service may be subject to the export and import laws of the United States and other countries. You agree to, and shall, comply with all applicable export and import laws and regulations. In particular, you: (1) represent that you are not a party identified on any government export exclusion list, including, but not limited to, the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists, nor will you transfer software, technology, and other technical data via the Service to parties identified on such lists; (2) agree not to use the Service for military, nuclear, missile, chemical, or biological weaponry end uses in violation of U.S. export laws; and (3) agree not to transfer, upload, or post via the Service any software, technology, or other technical data in violation of U.S. or other applicable export or import laws.

Successors and Assigns

This TOS shall bind and inure to the benefit of the successors, assigns, heirs, executors, and administrators of the parties hereto, except as otherwise expressly provided herein.

Non-Waiver

No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this TOS shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by the Company in exercising any right, power, or privilege hereunder shall operate as a waiver. Similarly, the Company’s election to not assert its rights under this TOS shall not preclude the Company from asserting its rights in the future.

Severability of Terms

If any provision of this TOS is held illegal, unenforceable, or invalid by any court or an arbitrator of competent jurisdiction, the remaining provisions shall be unaffected. If any provision, which is held illegal, unenforceable, or invalid, would be legal, enforceable, or valid if the provision was more narrowly drawn, the offending provision shall be interpreted so as to give maximum effect to the originally drafted provision.

Attorneys’ Fees

If the Company prevails in any action, suit, or proceeding arising from or based upon this TOS or your usage of the Service, the Company shall be entitled to recover its reasonable attorneys’ fees in connection therewith in addition to court costs and other fees and disbursement incurred in such action, suit, or proceeding. The Company shall also be entitled to all of its expenses and fees incurred in collecting any judgment(s) against you and for all appeals.

Headings

The headings in this TOS are for convenience only. The heading of any paragraph shall not affect the interpretation of any provision of the rights or obligations of the parties.

Privacy Policy and Notice of Privacy Practices

Please read the Company’s Privacy Policy.

California Residents Only

In accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs (the “Unit”) by contacting the Unit in writing at 400 R Street, Sacramento, California 95814, or by telephone at (800) 952-5210.