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TERMS AND CONDITIONS

MINDAUTHORITY LLC PROGRAMS, MATERIALS AND SERVICES

Effective January 3, 2023

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A USER AND CUSTOMER AT AND THROUGH THIS INTERNET SITE AND RELATED INTERNET SITES, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.

These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to the review, access and receipt of information and materials (collectively, the “MALLC Materials”) and services (collectively, the “Services”) related to Neuro-Linguistic Programming (“NLP”), life coaching, brain conditioning, self-awareness, self-improvement, personal development, personal motivation, personal wellness, mental discipline, mindfulness, and holistic and spiritual maintenance (collectively, the “Subject Matter”) by those persons (each, a “Customer”) accessing and ordering packages containing MALLC Materials and Services (collectively, the “Programs”, and each a “Program”) at and through the Internet website https://www.jimfortin.com, and related websites and social media pages and sites (collectively, the “Site(s)”), as provided by the Site(s)’ proprietor, MindAuthority LLC, an Arizona limited liability company (“MALLC”). By clicking “I accept” and also by placing an Order at or through the Site(s), or any of them, by accessing, ordering, paying for and receiving any Programs, MALLC Materials and Services, and by utilizing the Site(s) in connection therewith, Customer, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you, as a Customer, do not agree to be bound by all of these Terms, please do not order or purchase any Programs, MALLC Materials or Services or use or utilize the Site(s) in connection therewith. MALLC reserves the right to cancel your Customer Account, and to discontinue making the Programs, MALLC Materials and Services, the Site(s) and all features thereat and therethrough available to you, as Customer, should you, as Customer, violate any of these Terms.

In agreeing to these Terms, you acknowledge that prior to doing so, you have received, read and understood these Terms, as well as the MALLC’s Privacy Policy and other policies related to the Programs, MALLC Materials and Services (collectively, the “MALLC Policies”), each of which is incorporated into and integrated with these Terms and made part hereof as if restated in full, as posted at the Site(s), and that you have read, understand and agree to all provisions and conditions set forth in these Terms. In the event of any conflict or inconsistency between these Terms and any of the MALLC Policies or any other document or policy referenced herein, these Terms shall govern and take precedence, with the sole exception of MALLC’s Privacy Policy, which shall govern and take precedence over all.

1. Becoming an MALLC Customer

To become an MALLC Customer, establish a below-defined Customer Account, and be eligible to order, purchase and receive Programs, MALLC Materials and Services through the Site(s), a person must register directly at the Site(s). Customer is not authorized to market or resell the Programs, MALLC Materials or Services, or any of them, in any event or under any circumstances.

2. Sale and Purchase of Programs, MALLC Materials and Services

a. Program Packages

MALLC will offer to Customer the opportunity to select and purchase one or more Programs, which in turn address one or more items of Subject Matter. At the Customer’s option and selection, the Programs may include without limitation one or more certain subscription packages (each, a “Subscription”, and collectively, the “Subscriptions”), the features of which will be set forth in the corresponding Order provided in Section 2(b), below. The Subject Matter of each Program, and of any applicable Subscription, is identified at the Site(s) and will be confirmed in the corresponding Order made by Customer.

b. Orders

MALLC hereby agrees to provide to Customer the Programs, Subscriptions, MALLC Materials and Services as set forth in greater detail in each order (each, an “Order”, and collectively, the “Orders”) provided by Customer to MALLC through the Customer Account and accepted by MALLC in writing (including without limitation through written verification at the Site(s) or by verifiable electronic mail) in connection with these Terms. The Orders, solely upon MALLC’s acceptance and confirmation of each such Order at and through the Site(s), automatically shall be incorporated herein and integrated herewith by this reference without the need for any amendment of these Terms. Each Order shall identify the Program or Programs, and Subscription or Subscriptions as applicable, in which Customer will participate, the corresponding Subject Matter, the corresponding MALLC Materials, the price for each Program, the monthly charge for each Subscription, the dates, times and means by which the corresponding MALLC Materials and Services will be provided, certain below-defined MALLC Subs, including without limitation life coaches and other instructors, who/which will be providing certain Services, and in any event including any MALLC Subs who/that will provide and perform Professional Services as set forth in Section 1(c), below, and warranties and guaranties regarding the Programs, Subscriptions as applicable, MALLC Materials and Services that are the subject of the Order (if any). As applicable, in the event Customer elects a Subscription, the Order shall also confirm that the Subscription shall renew automatically on a monthly basis, with the Customer being charged automatically for each subsequent month, until such time as Customer provides advance written notice of Customer’s election to terminate the Subscription. In the event of any conflict or inconsistency between these Terms and the terms of any Order, these Terms shall govern and take precedence. MALLC shall be obligated to provide to Customer, and Customer shall be obligated to purchase, solely those MALLC Materials and Services as expressly referenced in an Order provided by Customer to MALLC through the Customer Account and accepted by MALLC as set forth in this Section 2(b).

c. Subcontractors and Sub-Consultants

MALLC shall have full control over the means and methods of performance and provision of the Programs, Subscriptions, MALLC Materials and Services, and in connection therewith, MALLC shall have the right, but not the obligation, in its sole discretion, to enter into written service provider agreements, subcontract agreements and sub-consulting agreements with persons or entities of MALLC’s choice (collectively, the “MALLC Subs”, and each an “MALLC Sub”), including without limitation certain life coaches and other instructors, any of which may or may not be principles of or affiliated or commonly controlled with MALLC; provided that to the extent any of the Services such as nutritional counseling services or mental health counseling services (collectively, “Professional Services”), may be provided and performed only by appropriately licensed, certified and/or registered professionals (each a “Professional”), such Professional Services shall be performed exclusively by one or more MALLC Subs, each of which is such a Professional, in which event MALLC shall obtain appropriate proof of legally required licensing, certification and/or registration of any such Professional that is utilized as an MALLC Sub in the performance of Professional Services as a condition precedent to such utilization; provided that MALLC is in no way responsible for such Professional maintaining such Professional’s license, certification and/or registration. Solely with respect to any Professional Services, MALLC shall exercise no control or supervision over the provision of such Professional Services. Rather, Customer acknowledges and agrees that the applicable MALLC Sub will be solely responsible for and will have complete authority, responsibility, supervision and control over the provision of all such Professional Services performed to and for Customer. Nothing contained in these Terms will be construed in and of itself to permit MALLC or any MALLC Sub to engage in any regulated professional practice or activity for which a license, certification or registration is required under the laws of the jurisdiction in which Customer receives any Services, including without limitation by any applicable Board of Naturopathic Physicians or Naturopathic Medicine, Board of Homeopathic Physicians or Homeopathic and Integrated Medicine Examiners, or regulatory agency concerning nutrition and dietetics, such as the Commission on Dietetic Registration or the Academy of Nutrition and Dietetics. MALLC shall not be responsible for any acts or omissions of the MALLC Subs, or any of them, except to the extent such acts or omissions result from the gross negligence or intentional misconduct of MALLC. With the exception of such gross negligence or intentional misconduct of MALLC, Customer may not under any circumstances hold MALLC responsible or liable for any act or omission of any MALLC Sub, Customer’s sole recourse therefor shall be limited exclusively to the appropriate MALLC Sub, and Customer shall indemnify and hold harmless MALLC in relation to the same as set forth under Section 11, below. To the extent not prohibited under any applicable agreement between MALLC and an MALLC Sub, MALLC hereby assigns to Customer MALLC’s rights, benefits, claims and remedies under MALLC’s agreement with such MALLC Sub and in relation to such MALLC Sub for such purpose.

d. Programs, Subscriptions, MALLC Materials and Services Non-Exclusive

Customer acknowledges and agrees these Terms are non-exclusive, and that MALLC may produce and provide similar programs, subscription packages and MALLC Materials and perform similar Services for or on behalf of other parties, including without limitation those engaged in the same or other businesses and endeavors.

e. No Purchase Required

Customer acknowledges and agrees that there are no minimum purchase requirements for MALLC Customers. All Program, Subscription, MALLC Materials and Service purchases are optional; provided that once an Order is fully executed and accepted by MALLC, Customer shall be responsible for purchase of Programs, MALLC Materials and Services, and for all Subscription fees as applicable, as set forth in such Order, subject to Customer’s limited right to cancel such Order, and any corresponding Subscription as applicable, solely if and to the extent set forth in such Order.

f. Application of MALLC Policies

All Programs, Subscriptions, MALLC Materials and Services are subject to the applicable MALLC Policies, and as a condition precedent to placing any Order for any Programs, Subscriptions, MALLC Materials or Services, Customer understands, acknowledges and agrees that such MALLC Policies govern Customer’s purchase, receipt, and if and where applicable cancellation, of any Programs, Subscriptions, MALLC Materials and Services; provided that payment for MALLC Materials and Services already received, even for Programs ultimately not completed and Subscriptions not utilized, shall be non-refundable in any event and under any circumstances.

3. Terms Subject to Change

a. General Terms Subject to Change

These Terms may change at any time, in MALLC’s sole discretion, including, but not limited to, the protocols for use of the Site(s), access to the Programs, Subscriptions, MALLC Materials and Services at and through the Site, pricing of the Programs, Subscriptions, MALLC Materials and Services, availability of the Programs, Subscriptions, MALLC Materials and Services, availability of the Site(s), content and materials made available at or through the Site(s) in connection with or in relation to the Programs, Subscriptions, MALLC Materials and Services, features and components of the Programs, Subscriptions, MALLC Materials and Services, and other e-commerce related information and/or functionality. MALLC reserves the right, its sole discretion, to discontinue the Site(s), or any of them (including Programs, Subscriptions, MALLC Materials and Services, or any of them, available thereat and therethrough), and/or modify the contents of the Site(s); provided that in the event of any change to these Terms, MALLC shall notify Customer through the Customer Account and the e-mail address on file there that these Terms have been changed, whereupon it shall be Customer’s sole and exclusive responsibility to review these Terms and become aware of and comprehend such changes. Upon such notice to Customer, any subsequent use by Customer of the Site(s), any subsequent Order made by Customer and any subsequent receipt and use by Customer of any Program, Subscription, MALLC Materials or Services, shall bind Customer to the updated and changed version of these Terms. Customer agrees MALLC will not be liable to Customer for any discontinuance or modification of the Site(s), or any of them (including features of Programs, Subscriptions, MALLC Materials and Services, or any of them); provided that once an Order is made, processed, confirmed, accepted by MALLC and paid for by Customer, MALLC shall provide the Programs, Subscriptions, MALLC Materials and Services that are the subject of such Order under the terms set forth in such Order, and MALLC shall continue to make the Site(s) and Programs, Subscriptions, MALLC Materials and Services available as provided in such Order and as otherwise provided in these Terms at the time of MALLC’s acceptance of and receipt of payment for such Order; but provided, further, that MALLC still may update the Site(s) and Programs, Subscriptions, MALLC Materials and Services from time to time in MALLC’s sole and absolute discretion, and any future Order shall be subject to such updating.

b. Price and Payment Terms Subject to Change

MALLC reserves the right, in its sole discretion, to change the price(s) of the Programs, Subscriptions, MALLC Materials and Services, and each of them, at any time, such price(s) being subject to change each time Customer accesses the order page for MALLC Materials and Services at the Site(s). In addition, all payment terms are similarly subject to change by MALLC. Unless and until Customer places an Order at the Site(s) for Programs, Subscriptions, MALLC Materials and Services, or any of them, through the Customer Account (as defined under Section 4(c)(i), below), and such Order is accepted and confirmed as provided under Section 2(c), above, and Section 6(a), below, Customer shall have no expectations as to price or payment terms based on previous access to and receipt of information at the Site(s).

4. Use, Operation and Maintenance of Site(s), System(s) and Platform(s)

a. Operating and Maintenance Responsibilities of MALLC

MALLC shall exercise reasonable efforts to maintain the Site(s) in condition and operating order, or with respect to third-party tools and applications to cause the appropriate third party(s) to so maintain. MALLC shall not be responsible for any inaccessibility of Customer due to scheduled maintenance and upgrades of the Site(s) or any corresponding Internet servers or software. MALLC shall use reasonable efforts to ensure, or to cause an MALLC Sub to ensure, that any period of inaccessibility shall not exceed forty eight (48) hours. In the event that the Site(s), Programs, Subscriptions, MALLC or Services become inaccessible, or their operation deviates materially from that provided in these Terms, and such deviation can be replicated by Customer, then Customer shall give written notification of the inaccessibility or the deviation, and in the case of deviations, sufficient information to permit replication and analysis. Upon receipt of notice from Customer of any inaccessibility or deviation, MALLC shall use reasonable efforts to diagnose, or cause an MALLC Sub to diagnose, the cause of the inaccessibility or deviation. Upon completion of the diagnosis, MALLC shall advise Customer of the cause of the inaccessibility or deviation and shall use efforts, or cause an MALLC Sub to use efforts, that MALLC considers to be reasonable in its sole discretion, without charge, to restore access to and use of the Site(s) or avoid the deviation. Notwithstanding the foregoing, MALLC shall have no obligation to resolve, or to cause any MALLC Sub to resolve, any inaccessibility or deviation, or any functionality issues, caused by or attributable to: (i) modification of the Site(s) or MALLC Materials by anyone other than MALLC or an actually authorized MALLC Sub; (ii) use of the Site(s), Programs, Subscriptions, MALLC Materials or Services for any purpose other than intended; (iii) misuse or incorrect use of the Site(s), Programs, Subscriptions, MALLC Materials or Services; or (iv) malfunction or incompatibility of any Customer computer or any telecommunications services or equipment, or software or Internet features, not under the control of MALLC. MALLC shall provide Customer reasonable technical support, or cause an MALLC Sub to so provide such technical support, during normal business hours of MALLC or such MALLC Sub, as the case may be. MALLC shall implement, or with respect to third-party tools and applications MALLC shall cause the appropriate third party(s) to implement, the data archive procedures resident in the Site(s) at regular intervals, and Customer acknowledges that the liability for loss, destruction or damage to any data Customer may store in at any such Site(s) is limited pursuant to these Terms. As between MALLC and Customer, MALLC has the sole right and responsibility to maintain and update the logical and physical organization and structure of the databases and associated files within the Site(s). In connection therewith, MALLC, in its sole discretion, shall have authority and access at all times these Terms are in effect to set up, utilize and administer third-party tools and applications for and on behalf of Customer and all Authorized End Users, as well as to make administrative setting changes in all technology platforms and services used and operated by or on behalf of Customer, each as they relate to the Site(s), Programs, Subscriptions, MALLC Materials and Services.

b. Security

MALLC shall, or shall cause an MALLC Sub to, establish and maintain commercially reasonable security measures designed to protect Customer from any security breaches at or through the Site(s). However, MALLC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than MALLC’s gross negligence or intentional misconduct. Specifically, among other things, MALLC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any causes set forth in Section 4(a)(i) through Section 4(a)(iv), above, or any features employed by any third party hosting company, it being understood and agreed that Customer may not under any circumstances hold MALLC responsible or liable therefor and that Customer’s recourse therefor shall be limited to the appropriate third party hosting company or companies.

c. Responsibilities of Customer

i. Customer Account

Customer shall access and use the Site(s), Programs, Subscriptions, MALLC Materials and Services through an account designated for Customer, which shall be tied to a username or e-mail address and a password, each to be provided by Customer (the “Customer Account”). Customer have the opportunity to change the username, e-mail address and/or password for the Customer Account from time to time in accordance with MALLC’s security policies and protocols, which shall be included among the MALLC Policies, and which MALLC shall make known to Customer with reasonable updates, which policies and protocols are incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict or inconsistency between these Terms and any such policies or protocols, these Terms shall govern and take precedence. Customer acknowledges and agrees that Customer shall be responsible for maintaining the confidentiality of any username and password associated with the Customer Account, and Customer shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Site(s) and access to, integrity of and loss of Customer’s data and/or Authorized End Users data or of Customer Content defined in Section 4(c)(ii), below. Customer agrees to accept full responsibility for all activities that occur under the Customer Account, specifically under Customer’s designated username, e-mail address and/or password. MALLC reserves the right to refuse service, terminate the Customer Account, or remove or edit content, including without limitation Customer Content, in MALLC’s reasonable discretion. The Customer Account and password are non-shareable, non-transferable and non-assignable, except upon written agreement by MALLC, in MALLC’s sole and absolute discretion, whereupon any transferee or assignee shall become an “Authorized End User”, and Customer Account and username and password information may not under any circumstances be shared except with Authorized End Users as expressly set forth in this Section 4(c)(i). Customer agrees to (A) maintain all equipment necessary for Customer and any Authorized End Users’ access to and use of the Site(s), Programs, Subscriptions, MALLC Materials and Services at and through the Customer Account; (B) maintain the security of Customer’s account identification, designated e-mail address, designated password, Customer Content and any other confidential information relating to the Customer Account; and (C) take responsibility for all charges resulting from use of the Customer Account, including without limitation those pertaining to any unauthorized use prior to Customer notifying MALLC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting MALLC to change Customer’s assigned e-mail address and/or password

ii. Customer Content

Customer and each Authorized End User, as the case may be, shall have the sole responsibility to input and maintain personal data, portfolio data, customer data and other data required for Customer’s activities, affairs and operations at the Site(s), in order for MALLC to provide the Programs, Subscriptions, MALLC Materials and Services to Customer or any Authorized End User, which data may include identifying information and credit card and/or bank account information necessary to process Orders and pay for Programs, Subscriptions, MALLC Materials and Services. Customer shall maintain Customer’s own proprietary content and that of each of the Authorized End Users provided and utilized in connection with the use and utilization of the Site(s), Programs, Subscriptions, MALLC Materials and Services (collectively, “Customer Content”), and to test to ensure that Customer Content is processed as expected. MALLC shall exercise, or cause one or more MALLC Subs to exercise, reasonable efforts to secure Customer Content, and Customer Content shall be maintained and managed at or through the Site(s) in accordance with MALLC’s Privacy Policy. Except as otherwise expressly provided in these Terms and MALLC’s Privacy Policy, MALLC shall not secure, maintain, test or alter Customer Content in any way. Except as otherwise expressly provided in these Terms and MALLC’s Privacy Policy, MALLC does not warrant that any Customer Content will be maintained or up to date in any manner, and MALLC shall not have any responsibility or liability for any failure to provide Programs, Subscriptions, MALLC Materials or Services to Customer or any Authorized End User as a result of Customer’s failure to maintain and update Customer Content as appropriate. Specifically, Customer shall remain solely responsible for all errors or problems in Customer Content impacting the Site(s) and/or the functionality thereof with respect to any Programs, Subscriptions, MALLC Materials, Services or Orders. Except as otherwise expressly provided in these Terms and MALLC’s applicable Privacy Policy, MALLC does not warrant that any Customer Content shall be made available after the time period set forth in Section 4(c)(iii), below.

iii. Maintenance of Customer Content; Termination of Customer Account

Customer shall maintain a copy of all Customer Content in an accessible way prior to termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services. Any Customer Content uploaded to the Site(s) shall be for the sole use by Customer, each applicable Authorized End User and MALLC; provided that MALLC will not share any such Customer Content with any other customer or any third party except as authorized under these Terms (which authorization hereby automatically includes sharing the same with all MALLC Parties and MALLC Subs as reasonably necessary to provide the Programs, Subscriptions and MALLC Materials and perform the Services under these Terms, as well as any licenses of Customer Content granted to MALLC under these Terms), or as reasonably necessary to operate and maintain the Site(s) as required under these Terms; and provided, further, that upon termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services therethrough, Customer and Authorized End Users shall have no further ability to access or use the Site(s) or any data Customer may have stored at or through the Customer Account. MALLC shall retain all Customer Content stored at the Site(s) under the Customer Account for a period of ninety (90) calendar days after termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services through the Customer Account, and so long as Customer has paid all amounts due in accordance with Section 5, below, MALLC shall during such ninety (90) day period work with Customer to transfer such Customer Content to other site(s), system(s) and platform(s), as requested and designated by Customer. Upon the expiration of such ninety (90) day period, Customer agrees that MALLC may at its sole option purge all Customer Content from the Site(s); provided that if reasonably necessary to complete the transfer requested and designated by Customer, MALLC and Customer may mutually agree to extend such ninety (90) day period; provided, further, that the transfer has commenced and proceeds diligently to completion.

iv. Third Party Hosts

Customer acknowledges that certain aspects, features and functions of the Site(s), Programs, Subscriptions, MALLC Materials and Services shall reside in one or more third-party hosting companies’ computing environment(s), which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by the Site(s), Programs, Subscriptions, MALLC Materials and Services may render the Site(s), Programs, Subscriptions, MALLC Materials and Services inaccessible or may impair the performance of the computing environment(s) for Customer, Authorized End Users and/or MALLC’s other customers. In the event of any such use by Customer, MALLC shall so notify Customer, whereupon Customer and Authorized End Users shall be obligated to put an immediate stop to such use, and Customer will notify MALLC in writing that such use has ceased. In the event of Customer’s failure to put an immediate stop to such use, MALLC reserves the right to suspend or terminate the Customer Account and access by Customer and any of the Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services therethrough. In the meantime, in the event of any damage or delay suffered by Customer that is caused by, arising from, resulting from or attributable to any acts or omissions of any third-party hosting company, as opposed to MALLC, Customer agrees that MALLC shall not be liable or responsible for such damage or delay, and Customer agrees that Customer’s sole recourse in connection with such damage or delay shall be such third-party hosting company and/or said hosting company’s insurers or sureties. To the extent not prohibited under the applicable agreement between MALLC and such third-party hosting company, MALLC’s rights, benefits, claims and remedies under MALLC’s agreement with such third-party hosting company and in relation to such third-party hosting company for such purpose.

v. Limited License

i. MALLC grants to Customer and each of the Authorized End Users authorized to purchase the Materials and Services a limited license to access and make personal use of the Site(s) and MALLC Materials solely as needed to consider, order, pay for and receive the Programs, Subscriptions and Services as set forth in these Terms and the accepted and confirmed Orders incorporated in and integrated with these Terms, and to enforce any rights, duties or obligations under these Terms or any such Order. This license does not include any resale or commercial use of the Site(s) or any contents thereof or of the Programs, Subscriptions, MALLC Materials and Services, or any of them; any collection and use of any content posted by MALLC at any of the Site(s), or any listings, descriptions, features, qualifications or related information of MALLC at the Site(s); any derivative use of the Site(s) or contents thereof or of the Programs, Subscriptions, MALLC Materials or Services; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, cookies or similar data gathering and extraction tools. Customer and Customer’s Authorized End Users shall have the ability to post certain limited content at the Site(s) upon prompting. Neither Customer nor any of Customer’s Authorized End Users may resell, sublicense, assign or otherwise allow the use of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, by or for the benefit of any other person, entity or group without the express written approval of MALLC, in MALLC’s sole and absolute discretion.

vi. Impact of Customer Content and Computing Environment

Customer shall remain solely responsible for all errors or problems in Customer Content impacting the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services, or any of them, or the performance or effectiveness thereof, maintaining and providing any necessary operating environments in which Customer and any of Customer’s Authorized End Users utilize the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, errors caused by third party software or hardware or the configuration of such items as they relate to such access, utilization or application, and interruptions in access to the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services, or other downtime attributable to any Internet provider of Customer or any of Customer’s Authorized End Users.

vii. No Unauthorized Non-MALLC Links

Other than page caching, neither Customer nor any of the Authorized End Users is authorized to download or modify the Site(s) or MALLC Materials, or any portion thereof. Unless otherwise authorized in writing by MALLC, in MALLC’s sole and absolute discretion, neither Customer, nor any of Customer’s Authorized End Users, nor any other third-party, is authorized to deep link to any web page contained at the Site(s) (i.e., no links are permitted under any circumstances from third-party websites to any page of the Site(s) other than a Site’s home page). Such links are expressly prohibited. In addition, neither Customer, nor any of Customer’s Authorized End Users, nor any third party may link any Site’s home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of a third party website as to the true ownership or sponsorship of any Site(s) and/or as to the existence or lack thereof of some affiliation or other relationship between MALLC and the third party and/or its website.

viii. No Offensive Activities

Neither Customer nor any of Customer’s Authorized End Users may post or transmit through any of the Site(s) or the Customer Account any content, item or material, or otherwise access or utilize the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services, or any of them, in any way, in any manner that violates or infringes in any way upon the rights of others, or that is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or that is otherwise objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or that is inconsistent with the non-religious and non-political purposes of the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services, or that contains advertising or any solicitation with respect to products or services, each as determined by MALLC in its sole discretion. Customer and each of Customer’s Authorized End Users are also prohibited from using any of the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services, or any of them, in any way that restricts or inhibits any other user or customer of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, from using or enjoying the same. Also, Customer shall not use any of the Site(s), Orders, Programs, Subscriptions, MALLC Materials and Services for any illegal purpose, including without limitation uses in violation of the CAN-SPAM Act of 2003 or in violation of any privacy laws.

ix. Other Use Restrictions

In accessing and using the Site(s), Programs, Subscriptions, MALLC Materials and Services, Customer shall not, and shall cause each of the Authorized End Users not to:

  • Engage in behaviors or activities that have the intention or effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing traffic, view counts, favorites or other metrics that MALLC might use to sort search results;
  • (B) Access, use or utilize the Site(s), Programs, Subscriptions, MALLC Materials or Services from any country or jurisdiction sanctioned by the government of the United States or to facilitate transactions involving individuals or entities sanctioned by the government of the United States or located in sanctioned countries or jurisdictions;
  • (C) Carry out any financial activities subject to registration or licensing, including but not limited to creating, selling or buying securities, commodities, options or debt instruments, except in strict compliance with applicable international, federal, state and local laws, statutes, ordinances, codes, rules, regulations, policies and procedures (collectively, “Applicable Law”) regarding the same;
  • (D) Create, sell or buy items that provide rights to participate in any multi-level marketing (MLM) program, an Initial Coin Offering (ICO), an Initial Dex Offering (IDO) or any securities offering, or that are redeemable for securities, commodities or other financial instruments, except in strict compliance with Applicable Law regarding the same;
  • (E) Engage in price manipulation, fraud or other deceptive, misleading or manipulative activities; or
  • (F) Infringe upon or violate the intellectual property rights or any other rights of others.
x. Other MALLC Rules of Use

MALLC may enact, implement and enforce reasonable rules of use, which shall be included among the MALLC Policies, as promulgated and amended from-to-time by MALLC in its reasonable discretion regulating the use of the Site(s) by Customer and Authorized End Users, and Customer agrees to be bound by and to bind each of Customer’s Authorized End Users to such rules. In the event of any conflict or inconsistency between these Terms and such rules, these Terms shall govern and take precedence. Breach of such rules or this section may result in the offending information being removed by MALLC, or MALLC’s termination of the Customer Account and/or access by Customer and/or any Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services.

d. Materials Posted by Others

i. Limits to MALLC Actions; Discretionary Removal of Offensive Material

Customer understands and acknowledges that MALLC cannot, does not and will not monitor all material posted or transmitted by customers, users and third party information providers at the Site(s). Although MALLC has no obligation to review or remove any such content in general, MALLC reserves the right to remove any content posted at the Site(s) at any time for any reason in its reasonable discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by MALLC in its reasonable discretion after actual notice of such posting and in no event or circumstance shall be construed as giving rise to any duty or obligation to review or remove in the future.

ii. Site Content

The Site(s) contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively, “Site Content”). MALLC does not control the Site Content supplied by parties other than MALLC or any actually authorized MALLC Subs. Any opinions, advice, statements, services, offers, and/or other information that constitute part of Site Content expressed or made available by third parties and not by MALLC or any actually authorized MALLC Subs are those of the respective authors or distributors and not of MALLC or any MALLC Sub. In many instances, the Site Content available at and through the Site(s) represents the opinions and judgments of the respective party or user, whether or not under contract with MALLC. Unless clearly, expressly and unequivocally indicated elsewhere, MALLC does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than MALLC anywhere at the Site(s) or elsewhere in connection with the Programs, Subscriptions, MALLC Materials and Services. Neither MALLC, nor any below-defined MALLC Party, makes any warranties with respect to any of the data featured or mentioned on or at the Site(s) or with respect to any Programs, Subscriptions, MALLC Materials and Services, unless provided expressly in these Terms or in an Order that is accepted and fulfilled by MALLC. Any information, content or material placed online by parties other than MALLC, including advice and opinions, are the views and responsibility of those who post the information, content or material, and do not necessarily represent the views of MALLC or any below-defined MALLC Party. Under no circumstances shall MALLC or any below-defined MALLC Party be liable for any loss, damage or harm caused by Customer’s or any Authorized End User’s reliance on information obtained at or through the Site(s) unless provided directly by MALLC or by an MALLC Sub with MALLC’s actual authorization. It is the responsibility of Customer to evaluate the information, opinion, advice or other Site Content available at and through the Site(s) and not provided directly by MALLC or an actually authorized MALLC Sub. Customer agrees that MALLC is not responsible, and shall have no liability or responsibility to Customer or any Authorized End Users, or any third party, with respect to any information or materials posted by any party other than MALLC or an MALLC Sub with MALLC’s actual authorization, including without limitation defamatory, offensive or illicit material, or material that violates these Terms, and Customer, for himself/herself/itself and for all Authorized End Users, accordingly unconditionally releases MALLC, all below-defined MALLC Parties from any and all liabilities and claims related to such information and materials posted by third parties that are not MALLC Subs actually authorized by MALLC, and Customer shall indemnify and hold harmless MALLC and the MALLC Parties in relation to the same, as set forth in Section 11, below.

iii. Hyperlinks

With the use of the Site(s), Customer and Authorized End Users might have the ability to link to other, non-MALLC Internet content and to upload their own non-MALLC provided content and materials at the Site(s) for use by Customer and Authorized End Users. Customer shall be solely responsible for obtaining access authorization from any and all content sources Customer chooses to utilize that are not MALLC or an actually authorized MALLC Sub, and Customer shall indemnify and hold MALLC, all below-defined MALLC Parties and all MALLC Subs harmless from any and all costs, expenses, injuries, damages and claims that are attributable to any use of content, programs and materials uploaded or linked to by or through Customer or any of the Authorized End Users and not directly by MALLC or an actually authorized MALLC Sub, as set forth in Section 11, below. MALLC has no control over such third-party sites or the content within them. MALLC cannot and does not guarantee, represent or warrant that the content contained in such third-party sites is accurate, legal or inoffensive. MALLC does not endorse the content of any third-party site, nor does MALLC warrant that such third-party sites will not contain viruses or otherwise impact Customer and/or Authorized End Users’ computers. MALLC does not assume any responsibility or liability for the actions, products, services, and content of all these and any other third parties. If Customer or any Authorized End User chooses to link to or use a third-party website, Customer and such Authorized End User should carefully review such third party’s privacy statement and other terms and conditions of use. By using the Site(s) to search for or link to any third-party site, Customer agrees and understands that Customer may not make any claim against MALLC or any of the MALLC Parties for any damages or losses, whatsoever, resulting from Customer’s use of or access to the Site(s) to obtain search results or to link to any third-party site.

5. Disclaimers

a. Informational Purposes Only

THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED AS A DETERMINANT FACTOR IN USER’S OR ANY OTHER PERSON’S PHYSICAL, MENTAL, PSYCHOLOGICAL, NUTRITIONAL OR EMOTIONAL HEALTH CARE, HEALTH TREATMENT OR HEALTH MAINTENANCE. WHILE MALLC’S PRINCIPAL, JAMES FORTIN, IS A LICENSED AND CERTIFIED NLP PRACTITIONER, NEITHER MALLC, NOR ANY PRINCIPAL (INCLUDING WITHOUT LIMITAITON JAMES FORTIN), EMPLOYEE, AGENT OR REPRESENTATIVE OF MALLC, IS A LICENSED, REGISTERED OR CERTIFIED DOCTOR OF MEDICINE, NATUROPATHIC PHYSICIAN, HOMEOPATHIC PHYSICIAN, NURSE, PHARMACIST, PHYSICAL THERAPIST, PSYCHOLOGIST, BEHAVIORAL HEALTH PROFESSIONAL, COUNSELOR, PHYSICIAN ASSISTANT, DIETITIAN, NUTRITIONIST OR OTHER HEALTH OR HEALTH-RELATED PROFESSIONAL (COLLECTIVELY, “HEALTH CARE PROFESSIONALS”, AND EACH A “HEALTH CARE PROFESSIONAL”). MALLC DOES NOT AND WILL NOT DIRECT ANY HEALTH CARE PROFESSIONAL, THROUGH THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES OR OTHERWISE, AND UNDER NO CIRCUMSTANCES SHALL MALLC BE CONSIDERED AS PERFORMING OR PROVIDING ANY DIAGNOSTIC, TREATMENT OR PRESCRIPTIVE SERVICES THAT ARE PROVIDED BY HEALTH CARE PROFESSIONALS (COLLECTIVELY, “HEALTH CARE SERVICES”), INCLUDING WITHOUT LIMITATION SERVICES REGULATED BY ANY APPLICABLE MEDICAL BOARD OR BOARD OF NATUROPATHIC EXAMINERS, NATUROPATHIC MEDICINE, NURSING, MEDICAL EXAMINERS, PHARMACY, PHYSICAL THARAPY, PSYCHOLOGIST EXAMINERS, PHYSICIAN ASSISTANTS, HOMEOPATHIC MEDICINE, HOMEOPATHIC AND INTEGRATED MEDICINE EXAMINERS, OR BEHAVIORAL HEALTH EXAMINERS, OR THE COMMISSION ON DIETETIC REGISTRATION OR ACADEMY OF NUTRITION AND DIETETICS. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL ANY OF THE PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES BE CONSIDERED “TELEMEDICINE” OR “TELEHEALTH”, INCLUDING WITHOUT LIMITATION AS DEFINED UNDER ARIZONA REVISED STATUTES § 36-3601(3). NO INFORMATION PROVIDED BY OR THROUGH THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES SHOULD EVER BE CONSIDERED A SUBSTITUTE FOR ANY HEALTH CARE SERVICES, AND ALL CUSTOMERS WHO POTENTIALLY NEED ANY HEALTH CARE SERVICES SHOULD CONSULT WITH ONE OR MORE APPROPRIATE HEALTH CARE PROFESSIONALS. MALLC ASSUMES NO RESPONSIBILITY WHATSOEVER, AND SHALL NOT IN ANY EVENT OR UNDER ANY CIRCUMSTANCES, BE LIABLE IN RELATION TO ANY DECISION OF CUSTOMER CONCERNING HEALTH CARE SERVICES AND/OR HEALTH CARE PROFESSIONALS, INCLUDING WHETHER OR NOT TO SEEK HEALTH CARE SERVICES, WHICH HEALTH CARE SERVICES TO SEEK AND WHICH HEALTH CARE PROFESSIONALS TO UTILIZE. IN ADDITION, NEITHER MALLC, NOR ANY PRINCIPAL, EMPLOYEE, AGENT OR REPRESENTATIVE OF MALLC, IS A LICENSED, REGISTERED OR CERTIFIED EDUCATOR, AND NEITHER THE SITE(S), PROGRAMS, SUBSCIPRTIONS, MALLC MATERIALS NOR SERVICES SHALL BE CONSIDERED TO BE OFFERED AS AN ACCREDITED PROGRAM OF LEARNING. CUSTOMER SHALL REMAIN SOLELY RESPONSIBLE FOR ALL CUSTOMER DECISIONS THAT IN ANY MANNER COULD BE CONSIDERED AS RELATED IN ANY WAY TO THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES, IT BEING UNDERSTOOD AND AGREED THAT ALL SUCH DECISIONS, INCLUDING IF AND HOW CUSTOMER MAKES USED OF THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES, ARE CUSTOMER’S AND CUSTOMER’S ALONE, MADE INDEPENDENTLY OF MALLC AND UNDER NO INFLUENCE WHATSOEVER OF MALLC OR THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS OR SERVICES. ANY THIRD PARTY HEALTH CARE PROFESSIONAL OR EDUCATOR WHO PROVIDES ANY PROGRAMS, SUBSCRIPTION FEATURES, MALLC MATERIALS OR SERVICES SHALL REMAIN SOLELY AND INDEPENDENTLY RESPONSIBLE FOR COMPLIANCE WITH SUCH THIRD PARTY’S PROFESSIONAL LICENSING, REGISTRATION AND CERTIFICATION REQUIREMENTS AND SHALL NOT UNDER ANY CIRCUMSTANCES BE CONSIDERED AS PROVIDING ANY HEALTH CARE SERVICES OR EDUCATIONAL SERVICES THROUGH MALLC.

b. No Protection of Customer Information Under HIPAA

WHILE CUSTOMER, IN THE COURSE OF PARTICIPATION IN THE PROGRAMS AND SUBSCRIPTIONS AND USE AND UTILIZATION OF THE SERVICES, MIGHT SHARE OR DISCLOSE INFORMATION, WHICH OTHERWISE COULD BE CONSIDERED CUSTOMER’S PERSONAL HEALTH INFORMATION OR ELECTRONIC PERSONAL HEALTH INFORMATION UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AS AMENDED FROM TIME TO TIME “HIPAA”, THE HIPAA STANDARDS FOR PRIVACY OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION AND THE STANDARDS FOR SECURITY OF ELECTRONIC PROTECTED HEALTH INFORMATION, 45 CFR PART 160 AND PART 164, SUBPARTS A, C AND E (THE “HIPAA REGULATIONS”), AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT, AS INCORPORATED IN THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (THE “HITECH ACT”, AND COLLECTIVELY WITH HIPAA AND THE HIPAA REGULATIONS, THE “HEALTH INFORMATION REQUIREMENTS”), CUSTOMER RECOGNIZES THAT AS MALLC IS NOT A HEALTH CARE PROFESSIONAL, MALLC IS NOT A “COVERED ENTITY” AS THAT TERM IS PROVIDED UNDER THE HEALTH INFORMATION REQUIREMENTS. ACCORDINGLY, CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ANY INFORMATION SHARED BY CUSTOMER, WITH MALLC OR WITH OTHER CUSTOMERS, SHALL NOT IN ANY EVENT OR UNDER ANY CIRCUMSTANCES BE SUBJECT TO THE PROTECTIONS AND RESTRICTIONS SET FORTH IN THE HEALTH INFORMATION REQUIREMENTS, OR ANY OF THEM. CUSTOMER HEREBY AUTHORIZES MALLC AND ANY MALLC SUB RECEIVING ANY HEALTH INFORMATION OF CUSTOMER TO DISCLOSE SUCH INFORMATION AS REASONABLY NECESSARY TO PROVIDE THE PROGRAMS, SUBSCRIPTIONS AND MALLC MATERIALS AND TO PERFORM THE SERVICES UNDER THESE TERMS AND EACH APPLICABLE ORDER. CUSTOMER HEREBY RELEASES AND DISCHARGES MALLC AND EACH OF THE BELOW-DEFINED MALLC PARTIES FROM ANY AND ALL LIABILITY AND RESPONSIBILITY IN RELATION TO THE KEEPING, SAFEGUARDING AND DISCLOSURE OF HEALTH INFORMATION OF CUSTOMER, INCLUDING WITHOUT LIMITATION UNDER THE HEALTH INFORMATION REQUIREMENTS, AND ANY OF THEM, AND CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS MALLC AND THE BELOW-DEFINED MALLC PARTIES, AND EACH OF THEM, IN RELATION TO THE SAME UNDER SECTION 11, BELOW.

6. Compensation

a. Payment in Accordance With Orders

For each of the Programs, Subscriptions, MALLC Materials and Services, payment shall be made to MALLC in the amount and manner set forth in the corresponding Order; provided that with respect to any Subscription, Customer hereby understands, acknowledges and agrees that such Subscription shall renew automatically on a monthly basis, Customer shall be charged automatically for each subsequent month, and Customer hereby authorizes MALLC to charge the Customer Account and credit card or payment method on file automatically for each such month up to and including the month in which Customer provides written notice to MALLC of Customer’s election to terminate the Subscription commencing with the following month; and provided, further, that an Order, at MALLC’s sole and absolute discretion, may require a minimum number of months a Subscription must be maintained, in which event Customer may not elect to terminate such Subscription, even by advanced written notice, unless and until Customer has paid MALLC the monthly compensation for such Subscription for the minimum number of months required in the Order. Except as set forth in a corresponding Order, all sales are final and not subject to any refunds or replacements.

b. Effect of Payment

Except as expressly otherwise provided in these Terms, any payment by Customer to MALLC under these Terms and a corresponding Order shall operate as a release of any claims, which Customer may be entitled to make in relation to the Programs, MALLC Materials and Services, and each of them, that are covered by such payment.

7. Independent Contractor

No relationship of employment is created by these Terms, it being understood that in agreeing to these Terms and providing Programs, Subscriptions, MALLC Materials and Services hereunder, MALLC is at all times acting and performing solely as an independent contractor. Neither MALLC nor Customer is authorized to be the agent or legal representative of the other for any purpose whatsoever. Neither MALLC nor Customer shall have the authority or power to make any commitments of any responsibility expressed or implied in the name of the other or to assume or create any obligation or shall be liable for any acts or omissions of the other. All employment, insurance and tax matters and filings shall be handled accordingly.

8. Confidentiality and Intellectual Property

In connection with these Terms and each of the Orders, and Customer and Authorized End Users’ access to and use and utilization of the Site(s), and order of and purchase, use and utilization of the Programs, Subscriptions, MALLC Materials and Services as set forth in these Terms and in each Order, MALLC might provide, and Customer and/or Authorized End Users might receive, certain confidential and proprietary information concerning one or more businesses, projects, products, materials, undertakings and/or services of MALLC related to the Subject Matter, or any of it (collectively, the “MALLC Proprietary Items”), which MALLC deems to be highly proprietary and valuable.

a. Scope of Confidentiality Protection

For the purpose of this Section 8, “MALLC Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by MALLC, any member of MALLC (including without limitation James Fortin), and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative (including without limitation the MALLC Subs, and each of them, subject to the remaining requirements of these Terms as pertains to such MALLC Subs and the limitation of MALLC’s responsibility and liability therefor), predecessor, successor or assign of any of them, in each event excluding Customer or any Customer Party defined below (collectively, the “MALLC Parties”, and each an “MALLC Party”), including without limitation that related to prospective development of the MALLC Proprietary Items, or any of them, descriptions, compositions and features of the MALLC Proprietary Items, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the MALLC Proprietary Items, or any of them, expected financial gains to be realized from the MALLC Proprietary Items, or any of them, identities of parties potentially involved with the MALLC Proprietary Items, or any of them, including without limitation actual and prospective manufacturers, compounders, suppliers, vendors, contractors, consultants, distributors, and other business partners of MALLC related to the MALLC Proprietary Items, or any of them, prospective impacts of the MALLC Proprietary Items, or any of them, and other information related to the MALLC Proprietary Items, or any of them, or MALLC’s ongoing or prospective involvement with the MALLC Proprietary Items, or any of them, which is not readily available to the public. For the purpose of this Section 8, “MALLC Confidential Information” shall also mean the following: (i) the contents of these Terms and the MALLC Policies and other documents incorporated herein and integrated herewith by reference, with the understanding that the existence of these Terms and Customer’s general obligation of confidentiality under this Section 8 may and should be disclosed to all third parties who seek or might receive any MALLC Confidential Information; (ii) all terms, conditions and features related to Customer’s purchase, payment for and acquisition of the Materials and Services, or any of them, as set forth in these Terms and in any Order; (iii) all MALLC Intellectual Property, as defined in Section 8(b), below; (iv) non-public information related to any and all MALLC Proprietary Items developed, performed or generated by or for the benefit of MALLC or any of the MALLC Parties; and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of MALLC or any of the MALLC Parties, which is not generally known to the public, and which under all of the circumstances ought reasonably to be treated as confidential and/or proprietary. MALLC Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of MALLC or any of the MALLC Parties. Customer shall disclose MALLC Confidential Information solely as necessary to consider, order, purchase, pay for, receive, use and receive the benefit of the Programs, Subscriptions, MALLC Materials and Services, each as set forth in these Terms and in any applicable Order, and Customer shall consider and utilize MALLC Confidential Information solely for such purposes. MALLC Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).

b. MALLC Intellectual Property

All intellectual property rights in any way related to any MALLC Confidential Information provided by or through MALLC or any of the MALLC Parties to Customer is hereby acknowledged to remain in the exclusive possession of MALLC, the applicable MALLC Party, or the applicable licensor thereof (each, an “MALLC Licensor”), as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, or any improvement thereto, are hereby fully disclaimed, waived and renounced by Customer in favor of MALLC, the applicable MALLC Party, or the applicable MALLC Licensor, as appropriate. For the purposes of this Section 8(b), “MALLC Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by MALLC and/or any of the MALLC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority, each as pertains to the Programs, Subscriptions, MALLC Materials, Services, Site Content and MALLC Proprietary Items, or any of them: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”); (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”); (iii) all copyrights and registrations and applications therefor, works of authorship (including without limitation the MALLC Materials, and each of them) and mask work rights (collectively, “Copyrights”); (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, including without that contained in the MALLC Materials, as well as identification of manufacturers, compounders, distributors, equipment, vendors, products, customers or suppliers, software and hardware information, pricing and cost information, and business and marketing plans and proposals of MALLC and/or any of the MALLC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents; (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with MALLC’s websites, or any websites of any of the MALLC Parties, or otherwise used in connection with MALLC or any MALLC Proprietary Items; and (vii) all other technology and know-how uniquely in the possession of MALLC and/or any of the MALLC Parties.

c. Restrictions Regarding MALLC Intellectual Property

Neither Customer, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign (including without limitation Customer’s Authorized End Users, and each of them), legal or financial advisor, contractor or consultant of Customer, in any event excluding MALLC, an applicable MALLC Party or an applicable MALLC Licensor (collectively, the “Customer Parties”, and each a “Customer Party”), may apply for a right in any MALLC Intellectual Property, or use or utilize any MALLC Intellectual Property for any purpose other than that provided under Section 4(c)(v) and Section 8(a), above, except upon the express written consent of an actually authorized representative of MALLC in MALLC’s sole and absolute discretion, whether or not any MALLC Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent Customer or any Customer Party may claim any rights, direct, derivative or otherwise, related to any MALLC Intellectual Property, Customer hereby disclaims, and shall cause each Customer Party to disclaim, such rights; and Customer hereby assigns, and shall cause each Customer Party to assign, such rights to MALLC. Customer agrees to execute and to cause each Customer Party to execute, and in the alternative hereby grants to MALLC, and shall cause each Customer Party to grant to MALLC, power of attorney to execute and record in Customer’s stead, and in each Customer Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of MALLC Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all MALLC Intellectual Property by MALLC, the applicable MALLC Party, or the applicable MALLC Licensor, as appropriate. Neither Customer, nor any third party, may market, utilize, reuse or redistribute any MALLC Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of MALLC. Except as expressly provided in Section 4(c)(v) and Section 8(a), above, no license or other right of any kind in any MALLC Intellectual Property is granted or otherwise provided to Customer, to any Customer Party or to any third-party in relation to these Terms or Customer’s purchase, payment for or acquisition of the Programs, Subscriptions, MALLC Materials and Services, or any of them. Neither Customer nor any Customer Party may frame or utilize any framing techniques to enclose any MALLC Intellectual Property or MALLC Confidential Information. Neither Customer nor any Customer Party may use any metatags or other hidden text utilizing MALLC Intellectual Property.

d. Restrictions Regarding Disclosure of MALLC Confidential Information to Third Parties

Customer shall, and shall cause each Customer Party to, hold MALLC Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each Customer Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available any MALLC Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of MALLC, in MALLC’s sole discretion; and (ii) removing or permitting to be removed from such MALLC Confidential Information any notice indicating the confidential nature of, or MALLC’s proprietary right in and to the MALLC Confidential Information. Customer shall, and shall cause each Customer Party to, exercise at least the same degree of care and protection with respect to MALLC Confidential Information that Customer or such Customer Party, as applicable, would exercise with respect to Customer’s (or such Customer Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Customer shall, and shall cause each Customer Party to, take all precautions necessary to ensure that MALLC Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 8. In the event of written consent to disclose Confidential Information to any other party, including without limitation Customer Personnel, Customer shall, and shall cause each Customer Party to, advise that other party of his/her/its obligations with respect to the MALLC Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 8 may be directly enforced by MALLC against him/her/it as a condition to such disclosure. Customer or the Customer Party, as applicable, shall provide an original of such written acknowledgment to MALLC, if so requested by MALLC. In any event, Customer or such Customer Party, as applicable, shall disclose the MALLC Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of MALLC. In addition, Customer or such Customer Party, as applicable, shall ensure that confidentiality notices are included on copies of MALLC Confidential Information so provided and shall account for the return or destruction of the MALLC Confidential Information and all reproductions thereof, if so requested by MALLC. MALLC hereby consents to the disclosure of MALLC Confidential Information by Customer to any Customer Party solely for the purposes set forth in Section 4(c)(v) and Section 8(a), above, and expressly subject to the remaining requirements of this Section 8.

e. Exception for Customer Content

Any proprietary Customer Content that is collected or generated through use or utilization of the Site(s), Materials and Services, or any of them, shall be deemed confidential information of Customer, which Customer may freely use and disclose as Customer sees fit. Customer shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the Customer Content, and Customer shall have indemnity obligations to MALLC therefor and in relation thereto as provided in Section 11, below. Customer represents and warrants that (i) Customer has the appropriate authority, license or other rights to use and disclose all such Customer Content and to provide such Customer Content as contemplated in these Terms; (ii) Customer has and will maintain all rights, consents and approvals required to grant to MALLC the rights to access, use, adapt, display and modify Customer Content in accordance with this Section 8(e) and will upon MALLC’s request provide proof of the same; and (iii) Customer shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. Customer hereby grants to MALLC a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all Customer Content that is collected or generated through use and utilization of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, for any legal purpose, including without limitation to provide MALLC’s Programs, Subscriptions, and MALLC Materials and perform MALLC’s Services and other obligations under these Terms, to enforce these Terms, to analyze, transfer and use such Customer Content in an aggregated form, from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Site(s), Programs, Subscriptions, MALLC Materials and Services and MALLC’s other programs, subscription features materials and services and any products and endeavors of MALLC, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for MALLC to do so or as may be reasonably necessary or appropriate in connection with the operation, maintenance, repair, updating, development, improvement or other activities of and through the Site(s), marketing, manufacturing, distribution and sales of programs, subscription packages and materials and performance of services, functions and endeavors by MALLC.

f. Ownership of MALLC Confidential Information

Subject to the licenses set forth in Section 4(c)(v) and Section 8(a), above, all MALLC Confidential Information, including without limitation reproductions thereof, shall be deemed to be and remain the exclusive property of all MALLC (or the applicable MALLC Party or MALLC Licensor, as appropriate), and no ownership rights of any kind in and to any all MALLC Confidential Information are transferred hereby, hereunder or in connection herewith to Customer, any Customer Party or any third party. Customer acknowledges that Customer does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them. All rights are reserved.

g. Other Exceptions to Confidentiality

The foregoing obligations of confidentiality shall not apply to any MALLC Confidential Information, which: (i) is or becomes available to the public through no act or omission of Customer, any Customer Party or any party in violation of the terms and conditions of this Section 8 or any other confidentiality or non-disclosure agreement; (ii) was already known by Customer at the time of the disclosure by MALLC, as evidenced by Customer’s written records existing prior to the date of MALLC’s disclosure; (iii) is lawfully obtained from a person or entity other than MALLC or Customer without any obligation of confidentiality or non-disclosure; (iv) is approved for release by MALLC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Section 8(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving MALLC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Customer first promptly notifies MALLC of the order and permits MALLC to seek an appropriate protective order; or (vii) is developed independently by or for Customer by personnel not having access to any MALLC Confidential Information.

h. Reverse Engineering / Independent Development

Notwithstanding any other provision of this Section 8 or these Terms, Customer shall not (and Customer shall not use any third party to), and Customer shall cause each Customer Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any MALLC Confidential Information.

i. Restrictive Covenant

In consideration of any MALLC Confidential Information, which Customer or any Customer Party will receive or have access to, in connection with the Site(s), Programs, Subscriptions, MALLC Materials, Services and MALLC Proprietary Items, Customer shall not, and Customer shall cause each Customer Party not to, use or utilize any MALLC Confidential Information to: (i) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of MALLC for the purpose of or with the result of (A) competing with MALLC with respect to the Site(s), Programs, Subscriptions, MALLC Materials, Services and MALLC Proprietary Items, or any of them, or any similar programs, products, subscription features, services or endeavors, (B) altering, modifying, diverting or precluding the development of any MALLC business relationship involving the Site(s), Programs, Subscriptions, MALLC Materials, Services and MALLC Proprietary Items, or any of them, or any similar programs, products, subscription features, services or endeavors, or (C) otherwise interfering with business transacted with MALLC with respect to the Site(s), Programs, Subscriptions, MALLC Materials, Services and MALLC Proprietary Items, or any of them, or any similar programs, products, subscription features, services or endeavors; or (ii) directly or indirectly solicit or attempt to solicit, encourage, induce or entice MALLC’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with MALLC with respect to the Site(s), Programs, Subscriptions, MALLC Materials, Services and MALLC Proprietary Items, or any of them, or any similar programs, products, subscription features, services or endeavors.

j. Obligation to Notify and Assist

Customer agrees to immediately notify MALLC of any unauthorized use or disclosure of any MALLC Confidential Information related to Customer or any Customer Party’s possession of such MALLC Confidential Information or any other breach of this Section 8 and these Terms, and Customer agrees to cooperate in every reasonable way to help MALLC regain possession of any misused or mis-disclosed MALLC Confidential Information and prevent (or limit to the extent possible) its further unauthorized use or disclosure.

k. No Warranty

Except as clearly and expressly provided in this Section 8(k) and in Section 9, below, all MALLC Confidential Information is provided “as-is, where-is”. MALLC makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any MALLC Confidential Information, except to the extent MALLC actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event MALLC hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.

i. Injunctive Relief

Customer recognizes and agrees that a breach of any of the provisions of this Section 8 will constitute immediate and irreparable harm to MALLC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event that Customer or any Customer Party attempts or threatens to violate any obligations under this Section 8, MALLC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches by Customer or such Customer Party, as the case may be, and notwithstanding the provisions of Section 13 and Section 14, below, MALLC shall be entitled to seek such relief in any court of competent jurisdiction in Maricopa County, Arizona, without the need to prove damages. Customer hereby consents to the personal jurisdiction of such courts for such purpose and agrees that in the event such relief is granted, Customer shall also pay MALLC’s reasonable attorney’s fees in connection with the same.

9. Limited Warranty and Disclaimers

a. Limited Warranty – Site(s)

MALLC warrants that, during the term of the Agreement, MALLC will use reasonable efforts to operate and maintain, or cause one or more MALLC Subs to operate and maintain, the Site(s) in good working order to the extent reasonably practicable, and all information provided directly by MALLC or the MALLC Subs through the Site(s) will be accurate to the best of MALLC’s actual knowledge.

b. Limited Warranty – Programs, Subscriptions, MALLC Materials and Services

THE PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, AND EACH OF THEM, MIGHT BUT ARE NOT OTHERWISE REQUIRED TO BE SUBJECT TO CERTAIN LIMITED WARRANTIES SOLELY AS SET FORTH IN THE CORRESPONDING ORDER. TO THE EXTENT ANY SUCH WARRANTY HAS BEEN PROVIDED BY A THIRD PARTY TO MALLC OR FOR THE BENEFIT OF CUSTOMER, THEN UPON MALLC’S ACCEPTANCE AND CONFIRMATION OF AN ORDER, MALLC ASSIGNS SUCH LIMITED WARRANTIES TO CUSTOMER AS APPLICABLE TO CUSTOMER AND THE CORRESPONDING MATERIALS AND SERVICES, in accordance with and as set forth in these Terms and ANY APPLICABLE ORDER. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IF ANY EVENTS OR CIRCUMSTANCES GIVE RISE TO ANY CLAIMS IN RELATION TO ANY SUCH LIMITED WARRANTIES FROM ANY THIRD PARTY, CUSTOMER’S SOLE RECOURSE SHALL BE AGAINST THE THIRD PARTY PROVIDING SUCH WARRANTIES, WITH CUSTOMER BEING AN ASSIGNEE OF MALLC TO THE EXTENT NOT PROHIBITED UNDER THE APPLICABLE AGREEMENT BETWEEN MALLC AND SUCH THIRD PARTY, AND THAT IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL MALLC BE HELD LIABLE OR RESPONSIBLE FOR ANY SUCH WARRANTIES. MALLC’S RESPONSIBILITY AND LIABILITY SHALL BE LIMITED TO THE REQUIREMENTS EXPRESSLY SET FORTH IN THESE TERMS AND THE APPLICABLE ORDER.

c. Exceptions to Limited Warranties

Notwithstanding any other provision of these Terms or any Order, the foregoing warranties and any warranties provided under an Order shall not apply to the following: (i) any errors or problems caused by any breach of any obligations of Customer or any of the Authorized End Users under these Terms; (ii) any application, modification of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, in any way other than as expressly provided in these Terms; (iii) any improper use of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them; (iv) any use of the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, except as expressly provided for in these Terms and the accepted and confirmed Orders; (v) any errors or problems in Customer data, including without limitation Customer Content, impacting the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them, or performance or effectiveness thereof; (vi) any failure by Customer or any of Customer’s Authorized End Users to maintain and provide any necessary operating environment or equipment in which Customer and/or any Authorized End Users use, access, apply or utilize the Site(s), Programs, Subscriptions, MALLC Materials and Services, or any of them; (vii) any errors caused by third-party software or hardware (other than that originated by an MALLC Sub, for which MALLC assigns any warranties provided by the MALLC Sub in connection therewith as Customer’s sole and exclusive remedy, and for which Customer’s sole recourse shall be against such MALLC Sub and not in any event or under any circumstance against MALLC) or the configuration of such items as they relate to such access, utilization or application; (viii) any interruptions in access to the Site(s) or other downtime attributable to any Internet provider of Customer or any Authorized End Users; or (ix) any matters for which Customer is expressly declared to be responsible and liable, or for which MALLC is expressly declared not to be responsible or liable, under these Terms or any MALLC Policy incorporated herein and integrated herewith by reference.

d. Warranty Disclaimers

NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(k), SECTION 9(a) AND SECTION 9(b), ABOVE, AND SUBJECT TO SECTION 9(c), ABOVE, MALLC DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM, OR ANY OTHER SERVICES, MATERIALS, PROGRAMS, SUBSCRIPTION PACKAGES, FEATURES OR DATA PROVIDED BY OR THROUGH MALLC. THE LIMITED WARRANTIES SET FORTH HEREIN IN SECTION 8(k), SECTION 9(a) AND SECTION 9(b) ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY DISCLAIMS AND WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES OF MALLC AND ALL MALLC PARTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS OR ANY RIGHTS OF CUSTOMER. THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, AND EACH OF THEM, AND ALL OTHER SERVICES, MATERIALS, PROGRAMS, SUBSCRIPTION PACKAGES, FEATURES AND DATA PROVIDED BY OR THROUGH MALLC ARE OTHERWISE DONE SO BY AND THROUGH MALLC AND TO CUSTOMER STRICTLY ON AN “AS IS, WHERE IS” BASIS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY WARRANTED BY MALLC IN SECTION 8(k), SECTION 9(a) AND SECTION 9(b), ABOVE, AND SUBJECT TO SECTION 9(c), ABOVE, MALLC AND ITS LICENSORS DO NOT WARRANT THAT THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM, OR ANY OTHER MATERIALS OR ITEMS OBTAINED BY CUSTOMER OR ANY AUTHORIZED END USERS AT OR THROUGH THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM, OR ANY OTHER SERVICES, MATERIALS, PROGRAMS, SUBSCRIPTION PACKAGES, FEATURES OR DATA PROVIDED BY OR THROUGH MALLC, OR ANY USE OR OPERATION THEREOF: (i) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR ANY AUTHORIZED END USERS; (ii) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (iii) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, EQUIPMENT OR DATA; (iv) WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER OR ANY AUTHORIZED END USERS MAY SELECT FOR USE, OR THAT ALL ERRORS THEREIN WILL BE CORRECTED; (v) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (vi) WILL GENERATE DATA OR OTHER RESULTS THAT ARE COMPLETE OR USEFUL FOR CUSTOMER’S PURPOSES. IT IS THE RESPONSIBILITY OF CUSTOMER TO EVALUATE THE COMPLETENESS OR USEFULNESS OF ALL PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES AND ALL DATA AND MATERIALS GENERATED THROUGH THE USE OF THE SITE(S) FOR CUSTOMER’S PURPOSES. CUSTOMER AGREES THAT NO INCONSISTENT STATEMENT MADE BY A REPRESENTATIVE OR OTHER EMPLOYEE OR AGENT OF MALLC OR ANY MALLC SUB WITH RESPECT TO A REPRESENTATION, WARRANTY OR OTHER PROVISION OF THESE TERMS OR WITH RESPECT TO THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM, OR ANY OTHER SERVICES, MATERIALS, PROGRAMS, SUBSCRIPTION PACKAGES, FEATURES OR DATA PROVIDED BY OR THROUGH MALLC, SHALL SUPERCEDE THESE TERMS, AND SPECIFICALLY THE DISCLAIMERS PROVIDED IN THIS SECTION 9(d), WHICH SHALL GOVERN AND TAKE PRECEDENCE IN THE EVENT OF ANY CONFLICT, AMBIGUITY OR QUESTION OF INTERPRETATION. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT MALLC EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR THOSE AUTHORIZED BY CUSTOMER TO USE OR UTILIZE THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM.

10. Limitation of Liability

a. Limitations and Exclusions

IN NO EVENT SHALL MALLC BE LIABLE TO CUSTOMER, ANY AUTHORIZED END USER, OR ANY OTHER PARTY FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION OR LOSS OF PRODUCTION) FOR ANY CLAIM IN ANY MANNER  ARISING OUT OF OR IN CONNECTION WITH OR IN ANY MANNER RELATED TO THESE TERMS, THE SITE(S), THE PROGRAMS, THE SUBSCRIPTIONS, THE MALLC MATERIALS AND THE SERVICES, OR ANY OF THEM, WHETHER BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHERE MALLC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR ANY ACCEPTED AND CONFIRMED ORDERS, IN NO EVENT SHALL MALLC BE RESPONSIBLE OR LIABLE FOR (i) ANY CORRUPTION, DAMAGE, LOSS OR MISTRANSMISSION OF DATA; (ii) THE SECURITY OF DATA DURING TRANSMISSION VIA ANY INTERNAL NETWORKS OR EQUIPMENT OF CUSTOMER OR ANY OF THE AUTHORIZED END USERS OR VIA PUBLIC TELECOMMUNICATIONS MEDIA OR FACILITIES; (iii) HARDWARE, SOFTWARE, OR OTHER ITEMS OWNED BY CUSTOMER OR ANY AUTHORIZED END USERS OR THAT ARE THE PROPERTY OF A THIRD PARTY THAT IS NOT AN MALLC SUB; OR (iv) ANY OTHER MATTERS OR ITEMS FOR WHICH CUSTOMER IS EXPRESSLY MADE RESPONSIBLE, OR FOR WHICH MALLC IS EXPRESSLY DECLARED NOT TO BE RESPONSIBLE, UNDER THESE TERMS. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER THE SITE(S), PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, AND EACH OF THEM, ARE SUITABLE FOR THE INTENDED USES OF CUSTOMER AND CUSTOMER’S AUTHORIZED END USERS. CUSTOMER UNDERSTANDS THAT USEAGE OF THE SITE(S) MAY NOT BE UNINTERRUPTED AND ERROR-FREE. IF CUSTOMER OR ANY OF THE AUTHORIZED END USERS IS A CALIFORNIA RESIDENT, THEN BY ACCEPTING THESE TERMS CUSTOMER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.

b. Maximum Aggregate Liability

EXCEPT WHERE MALLC’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING, THE TOTAL AGGREGATE LIABILITY OF MALLC UNDER OR IN RELATION TO THESE TERMS, AND THE SITE(S), SITE CONTENT, PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, OR ANY OF THEM, OR ANY OTHER MATERIALS, ITEMS, SUBSCRIPTION PACKAGES AND FEATURES PROVIDED BY OR THROUGH MALLC, OR ANY OTHER MATTER COVERED BY THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO DATE BY CUSTOMER UNDER AND IN RELATION TO THESE TERMS AND THE APPLICABLE ORDER(S), EACH AS THEY RELATE SOLELY TO THE PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES AT ISSUE. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 10 SHALL APPLY IN ALL EVENTS AND UNDER ALL CIRCUMSTANCES, WITH THE ONLY EXCEPTION BEING TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF MALLC SHALL NOT EXCEED THE STATUTORY LIMIT.

c. Acknowledgment

Customer and MALLC acknowledge that they have reached agreement on base compensation and other charges set forth in these Terms in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in these Terms and that the same form an essential basis of the bargain between the Customer and MALLC. Section 9 and Section 10 of these Terms allocate the risks under these Terms between MALLC, on one hand, and Customer, on the other, and are viewed by such parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of these Terms reflect this allocation of risk and the limitations specified herein. Each of Customer and MALLC has a duty to mitigate the damages and losses that would otherwise be recoverable from the other pursuant to these Terms (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or losses.

11. Indemnity

Subject to the limitations set forth in Section 9 and Section 10, above, Customer shall indemnify, defend, protect and hold MALLC and each of the MALLC Parties harmless from and against any and all actions, causes of action, demands, liabilities, losses, damages, injuries, costs, or expenses, of whatever kind in nature, including attorney's fees and reasonable expenses incurred in connection with these Terms, to the extent arising or resulting from, caused by or pertaining to: (a) Customer’s breach or violation of any duties, obligations or responsibilities under these Terms or under any Order or MALLC Policies, or any failures by Customer to perform as required (t)hereunder; (b) the negligence, willful misconduct or otherwise wrongful conduct of Customer, any Customer Party, or any third party for whom Customer is legally responsible, in relation to these Terms and the Site(s), Programs, Subscriptions, MALLC Materials and Services and Customer’s order, purchase, payment for and acquisition thereof; and (c) any receipt, use or utilization of the Programs, Subscriptions, MALLC Materials and Services, or any of them; each except to the extent the damage or liability is caused by: (A) MALLC’s breach or violation of any duties, obligations or responsibilities under these Terms; or (B) MALLC’s negligence, willful misconduct or otherwise wrongful conduct. The Parties agree to notify each other immediately upon the making of any claim or institution of litigation or dispute resolution proceedings giving rise to any obligation of indemnity under these Terms. Notwithstanding the provisions of this Section 11, no claim or litigation which is based in whole or in part upon allegations arising from activities undertaken pursuant to these Terms shall be settled by Customer without the advance written approval of MALLC, which approval shall not unreasonably withheld or delayed.

12. Termination

MALLC or Customer may terminate the Customer Account and any pending Orders for cause upon written notice if the other breaches or defaults in any of his/her/its material obligations, duties or responsibilities under these Terms or any applicable Order, and such breach is not cured within thirty (30) calendar days following receipt of written notice thereof, or in the event such breach cannot reasonably be cured within such time period, such cure is not commenced within such thirty (30) calendar day period and diligently continued to completion. In the event the Customer Account and any pending Orders are terminated, Customer shall provide payment for all Programs, Subscriptions, MALLC Materials and Services provided as of the date of the termination. In addition, in the event of such termination, Customer shall provide payment in full for all Programs, Subscriptions, MALLC Materials and Services for which an Order has been executed and accepted, and MALLC shall produce and provide the corresponding Programs, Subscriptions, MALLC Materials and Services to Customer, except as otherwise mutually agreed in writing (including by verifiable electronic mail) between Customer and MALLC. For such purposes, the requirements of the corresponding Order(s) and these Terms as applicable thereto shall survive such termination, and MALLC and Customer shall owe no further duties or obligations under or in relation to these Terms or the Programs, Subscriptions, MALLC Materials and Services except those that expressly survive expiration or termination of these Terms. Customer’s and each of the Authorized End Users’ access to the Site(s), Programs, Subscriptions, MALLC Materials and Services shall be terminated immediately upon termination of the Customer Account, subject to the requirements of Section 4(c)(iii), above, and Customer and each of Customer Authorized End Users shall thereupon have no further ability to access or use the Site(s) or order further Programs, Subscriptions, MALLC Materials or Services. Upon such termination, all Customer data, including the Customer Content, stored within the Site(s) shall be preserved for a limited time and transferred as set forth in Section 4(c)(iii), above.

13. Applicable Law

All claims and disputes related to these Terms, the Programs, Subscriptions, MALLC Materials and Services, and the transactions contemplated hereunder shall be settled in accordance with the Dispute Resolution provisions set forth in Section 14 of these Terms. Interpretation and performance of these Terms shall be in accordance with and pursuant to the substantive laws of the State of Arizona, without regard to principles of conflicts of laws.

14. Dispute Resolution

Any dispute, controversy or claim that may arise under or in relation to these Terms, or any Orders, or any MALLC Policies, or any other documents or terms incorporated herein or integrated herewith by reference, or any interpretation or enforcement of these (t)hereof, or any transactions contemplated (t)hereunder, or any of the Programs, Subscriptions, MALLC Materials and Services, or any other matters contemplated under these Terms (each, a “Dispute”, and collectively, “Disputes”) shall be submitted to a mediator located in the Phoenix, Arizona metropolitan area prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by the parties, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. The mediation shall conclude when all parties thereto sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by the parties informally or through mediation, the Dispute shall be submitted to binding arbitration before a mutually agreeable arbitrator in the Phoenix, Arizona metropolitan area. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona. Customer hereby consents to the personal jurisdiction of such courts located in Maricopa County, Arizona, for such purpose. CUSTOMER ALSO HEREBY WAIVES RIGHT TO A JURY TRIAL. Should any arbitration or other legal proceeding concerning any provision of these Terms or the rights and duties of any person or entity in relation hereto be commenced among the parties, or should any party institute any proceeding in a bankruptcy or similar court which has jurisdiction over any party or any or all of such other party's property, the party or parties prevailing in such arbitration or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for their attorneys’ fees and court costs in such arbitration or proceeding which fees and costs shall be determined by the arbitrator or court, as the case may be, in such proceeding or in a separate action brought for that purpose.

15.Miscellaneous Provisions

a. Assignment

None of Customer’s rights, obligations or claims under or with respect to these Terms or the Programs, Subscriptions, MALLC Materials and Services may be assigned, in whole or in part, by such party without the prior written consent of MALLC, which consent shall not be unreasonably withheld, conditioned or delayed. MALLC may freely assign its rights, obligations or claims under or with respect to these Terms or any of the Site(s), Site Content, Programs, Subscriptions, MALLC Materials and Services.

b. Invalid Provisions / Severability

If any provision of these Terms is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable; these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

c. Inconsistency Among Terms

Except as expressly otherwise provided in these Terms, where any provision or term, in whole or in part, of any contract documents related to these Terms conflicts with or is inconsistent with the express provisions of these Terms, then the provisions of these Terms shall control, and the provisions or terms of the related contract documents shall be deemed to be inapplicable and void.

d. Entire Agreement

These Terms, together with all accepted and confirmed Orders, all MALLC Policies referenced herein, and all other documents, agreements and undertakings incorporated herein and integrated herewith by reference, represent the entire agreement between MALLC and Customer and modify and supersede any prior agreements executed by MALLC and Customer with respect to the subject matter hereof, including without limitation the Site(s), Programs, Subscriptions, MALLC Materials and Services. There are no promises, terms, conditions, or obligations between Customer and MALLC other than those contained or otherwise referenced (t)herein.

e. Modification

Except as otherwise expressly provided in Section 3, above, these Terms may not be changed, modified, or amended without the written consent of an actually authorized representative of both MALLC and Customer.

f. No Waiver

Failure on the part of MALLC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by MALLC of its rights hereunder. Any waiver by MALLC of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit MALLC’s remedies and rights under and pursuant to these Terms.

g. Interpretation; Construction

The headings set forth in these Terms are for convenience only and shall not be used in interpreting these Terms. They are not to be construed as a part of these Terms, and they in no way define, limit or amplify the provisions of these Terms. These Terms have been drafted by legal counsel representing MALLC, but Customer has had an opportunity to review these Terms and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.

h. Force Majeure

MALLC shall not under any circumstances be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give Customer prior notice thereof when such delay or failure is due to the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, strikes, internet disruption, disease, viruses, bacteria, epidemics, pandemics or health threats as declared by a government or health care agency, insurrections, attacks or politically destabilizing events or circumstances as declared by a government agency or authority, or other causes beyond MALLC’s control.

i. Notices

Any notice to be given under these Terms shall be in writing and shall be deemed to have been given when personally served, when mailed by certified or registered mail, or when submitted by verifiable electronic mail, addressed to the Customer’s address and to MALLC’s address as designated on the most recent accepted and confirmed Order or as set forth in connection with the Customer Account, to the attention of those designated therein. The addresses and/or contact points may be changed from time to time by either Customer or MALLC by serving notice as provided in this Section 15(j).

j. Survival

The respective rights and obligations of the parties under Section 4(c)(iii), Section 5, Section 8 through Section 11, and Section 13 through Section 15 of these Terms, as well as the expressly surviving provisions of Section 12 of these Terms, and the applicable provisions of the MALLC Policies, shall survive the termination of the Customer Account and access by Customer and Authorized End Users to the Site(s), Programs, Subscriptions, MALLC Materials and Services.

BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), CUSTOMER AND EACH OF CUSTOMER’S AUTHORIZED END USERS UNDERSTAND, ACKNOWLEDGE AND CONFIRM THAT CUSTOMER AND EACH SUCH AUTHORIZED END USER HAVE READ THESE TERMS TO COMPLETION, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT CUSTOMER AND EACH SUCH AUTHORIZED END USER HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY, AND WITHOUT ANY UNDUE INFLUENCE. CUSTOMER AND EACH SUCH AUTHORIZED END USER ACKNOWLEDGE THAT SUCH PARTIES HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO THEIR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH CUSTOMER AND EACH SUCH AUTHORIZED END USER UNDERSTAND TO BE A PREREQUISITE TO THEIR ABILITY TO ORDER, PURCHASE, RECEIVE AND UTILIZE ANY OF THE PROGRAMS, SUBSCRIPTIONS, SERVICES AND MALLC MATERIALS, AND TO USE AND UTILIZE THE SITE(S). FINALLY, CUSTOMER AND EACH SUCH AUTHORIZED END USER UNDERSTAND THAT THESE TERMS, TOGETHER WITH THE PROVISIONS AND CONDITIONS OF EACH CORRESPONDING ORDER, THE MALLC POLICIES AND ANY DOCUMENTS INCORPORATED (T)HEREIN AND INTEGRATED (T)HEREWITH BY REFERENCE, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH ACTIVITIES, WITHOUT REGARD TO THE DATE OR TIMING OF ANY SUCH ACCESS, PARTICIPATION, PURCHASE, USE OR UTILIZATION. CUSTOMER CERTIFIES THAT CUSTOMER AND EACH OF CUSTOMER’S AUTHORIZED END USERS ARE AT LEAST 18 YEARS OF AGE AND OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS, AND DO SO KNOWINGLY, VOLUNTARILY AND WITHOUT ANY UNDUE INFLUENCE.

 

BY CLICKING AGREEMENT AS PROVIDED AT THE SITE(S), AND BY CONTINUING TO USE AND NAVIGATE THE SITE(S), PLACE ORDERS AND PARTICIPATE IN, RECEIVE, USE AND UTILIZE THE PROGRAMS, SUBSCRIPTIONS, MALLC MATERIALS AND SERVICES, CUSTOMER HEREBY UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT At all relevant and applicable times, all representations, warranties and covenants of CUSTOMER PROVIDED in these Terms are accurate and complete, AND MALLC shall have the right to rely on the same in full.

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