IMPORTANT PLEASE READ THE TERMS OF SERVICE CAREFULLY BEFORE CONTINUING
Welcome to Level Up By DK, Inc (“Level Up By DK”, "Level Up" “us”, “our” or “we”). We produce content, videos, training materials, products, services and/or other materials (collectively along with our titles, features, content, software, updates, audio content, video files, downloadable content, add-ons, and/or modified versions, “Content”), made available on our websites, which includes without limitation levelupbydk.com, levelupbydk.uscreen.io, among others (collectively the “Site(s)”), and various mobile applications (“Apps”). These terms and conditions (collectively, the “Terms” or “Agreement”) define your rights and obligations related to our Sites, Apps, and Content, your purchase, use, or downloading of any of our Content, services or offerings, participation in our events or promotions, and more generally use any of our other products or services (collectively with the Content, Apps, and Site, the “Services”).
THIS AGREEMENT ALSO CONTAINS A BINDING INDIVIDUAL ARBITRATION CLAUSE AND CLASS-ACTION WAIVER PROVISION BELOW. IF YOU ACCEPT THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION. THESE TERMS WILL AFFECT YOUR LEGAL RIGHTS. PLEASE REVIEW THEM CAREFULLY. YOU MAY HAVE A TIME-LIMITED RIGHT TO OPT OUT.
By using our Services, you agree to be bound by the terms of this Agreement. By entering into this Agreement, you are confirming you are an adult of legal age, you understand and accept this Agreement, and you are legally and financially responsible for all actions using or accessing the Services. If you are under the legal age of majority, your parent or legal guardian must consent to this Agreement. If you (or your parent or legal guardian) do not or cannot agree to the terms of this Agreement, you may not use our Services.
By accepting and agreeing to this Agreement, you are also agreeing to all terms of service and use, legal requirements, privacy policies, and any other agreements, terms and conditions of the third-party platforms used to access, download, store, and/or use the Services. Please review those third parties’ terms, policies, and agreements carefully. We are not responsible for the terms, policies, disclosures or actions of any third-party platforms.
We may modify these Terms at any time, and if we do, we will notify you by email or by posting the modified Terms. Please review any modified Terms before you continue using the Services. If you continue to use the Services, you are bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not use the Services. By using any of our Services, you represent that you are at least 18 years old, and that all information you submit is correct
If you breach these Terms we may take action against you, including but not limited to terminating your Account and/or disabling your access to the Services. You acknowledge that we have no obligation to, and will not, reimburse or refund you for Services or other purchases and/or downloads lost due to involuntary suspension or termination of your Account.
2. License Grant
Subject to these Terms and your compliance therewith, Level Up By DK grants to you a personal, nonexclusive, non transferable, non-sublicensable, revocable, limited right and license to download, play, listen to, display, and use the Content solely for your permitted use within the Services (collectively, the “License”). “Content” means the audio and/or video recordings, text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, communications, interactive features, works of authorship of any kind, or other materials that are generated, provided, or otherwise made available through the Services.
The rights granted to you under the License are subject to these Terms and your full compliance with the Terms, and you may only make use of the License if you comply with all applicable Terms. The Content is licensed, not sold, to you, and you hereby acknowledge that no title or ownership in the Content is being transferred or assigned to you and the Terms should not be construed as a sale of any rights in the Content. Level Up By DK retains all right, title, and interest to the Content, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audio files, MP3 files, video files, audiovisual files, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights. Level Up By DK has the right to remove some or all of the Content from the Sites or Apps at any time for any reason.
The Content is protected by U.S. copyright and trademark law and any other applicable intellectual property laws and treaties throughout the world. You acknowledge that all copyrights and other intellectual property rights in the Services are owned by us or our third-party licensors to the full extent permitted under the United States Copyright Act and all international copyright laws and all other applicable laws. All rights in product names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of our Content and Services, whether or not appearing in large print or with the trademark symbol, belong exclusively to us or our licensors and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws.
The Content may not be copied, reproduced, altered, modified, or distributed in any manner or medium, in whole or in part, without prior written consent from Level Up By DK. All rights not expressly granted under this Agreement are reserved by Level Up By DK.
3. License and Use Conditions; Community Guidelines (Code of Conduct)
You agree that you are responsible for your own conduct while using our Services and/or accessing our Content, and for any consequences thereof. You may not do or attempt to do any of the following with respect to the Services, Content, or any parts thereof (Code of Conduct):
- use the Services, Content, or any parts thereof commercially or for a promotional purpose, or otherwise commercially exploit same;
- distribute, lease, license, sell, rent, display, or otherwise transfer or assign the Content, or use them in a way that is not expressly authorized in the Terms;
- make a copy of any Content, or any part thereof, or otherwise make same available on a network for use or download;
- modify or delete any portion of the Content, or any audio-video files made available therein;
- use the Services, Content, or any parts thereof to promote or endorse any third party causes, ideas, Web sites, products or services;
- re-produce, edit, re-transmit, redistribute, or in any way repurpose the Content, or any audio-video files made available therein;
- remove, disable, circumvent, or modify any proprietary notice or label or security technology included in the Content;
- use the Services, Content, or any parts thereof to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights;
- use, export, or re-export the Services, Content, or any parts thereof in violation of any applicable law or regulation.
- bypass, remove, deactivate, descramble, or otherwise circumvent any technological measure implemented to protect the Content, or Services;
- delete, obscure, or in any manner alter any attribution, warning, or link that appears in the Services, or Content;
- discrimination or make discriminatory comments of any form or manner, including without limitation on the basis of race, gender, religion, sex, gender identity, age, disability, ethnic origin, or sexual orientation when using our Services;
- disparage, defame, name-call, or engage in any form of intimidation against another user, including swearing or use of any other inappropriate or offensive language, or making offensive or insensitive remarks of any kind when using our Services;
- make or post any sexually explicit remarks or images, or engage in any act of sexual misconduct, including but not limited to sexual innuendo, sharing sexually explicit content, or making offensive or inappropriate advances or comments to other users when using our Services;
- reveal personally identifying information of other users or infringe on the privacy of other users when using our Services;
- harassing, stalking, spamming, or making any other inappropriate comments or actions towards other users when using our Services;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing.
We reserve the right to discontinue providing our Services or any parts thereof, and to require that you cease accessing or using same at any time for any reason, including without limitation if you violate the Code of Conduct in any way.
You agree that your use of the Services is at your own risk, and that you will not use the Services to violate any applicable law, regulation, policies, or instructions as outlined in these Terms and you will not encourage or enable any other individual to do so.
You also understand and agree the Content, videos and accompanying materials necessarily require physical exercise or activity. By voluntarily participating in this fitness program you assume all risk of injury. Without limiting the generality of the foregoing, you understand and acknowledge that there are risks of physical injury, or even death, associated with any physical activity, including the Level Up By DK exercise program and that, in addition, certain medical conditions may be aggravated or made worse by physical activity (collectively, “Risks”). You assume any and all risk and danger incidental to the use of the videos and any other materials offered by Level Up By DK, including but not limited to, the foregoing Risks and the way you perceive and utilize the information conveyed in the Level Up By DK videos. You agree to consult with your physician, before commencing the exercise program shown in the Level Up By DK materials, and you agree not to participate in Level Up By DK programs with any medical condition, including, but not limited to, a history of heart disease, that poses a direct threat to the health or safety of yourself or others and that Level Up By DK shall not be liable for any injury resulting from or arising out of, participating in the Level Up By DK exercise program or from the Risks. You also understand that Level Up By DK encourages you to exercise and eat a healthy, well-balanced diet on your own to supplement the Level Up By DK exercise program, and that you, not Level Up By DK, assume all risks and responsibilities for your own actions, safety, health, performance, well-being, and any complications or injuries which may arise when exercising or eating on your own.
Under no circumstances and under no legal theory, tort, contract, strict, liability, or otherwise, shall Level Up By DK or any related companies be liable to you or any other person for any indirect, special, incidental, damages for lost profits, loss of goodwill, work stoppage, accuracy of services, content or results, computer failure or malfunction, or damages resulting from the Content, Services or any parts thereof.
You also agree to indemnify and hold harmless Level Up By DK and its officers, employees, agents, representatives, affiliates, subcontractors, members and assigns, against any and all claims, disputes, demands, actions, suits, damages, liabilities, obligations, losses, settlements, judgements, costs and expenses (including without limitation attorneys’ fees and costs) made or entered into against us that arise out of, relate to or are the result of your actions, contents and communications related to our Services. Similarly, if you have a dispute with any third party relating to your use of our Services, you release Level Up By DK (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
4. User Comments and Feedback
We and our Services may offer various opportunities to interact and share your opinions and thoughts with us and others, or via various forum, social media pages, or via other community initiatives. However, please note that the opinions or views expressed, or statements made via posts, user comments, feedback, “wiki” entries, online chat, or via other features (collectively referred to herein as “User Comments”), do not reflect the opinions or views of Level Up By DK.
We do not review, edit or modify User Comments. However, we reserve the right to remove or modify any User Comments for any reason. By sharing User Comments and accepting the terms of this Agreement, you acknowledge that we may make such deletions or changes without notice to you, nor is any such change or removal subject to review, appeal or revocation.
We may also, from time to time, publicly share or redistribute User Comments on our Site, in our Content, or through other media or social media channels, press releases, or promotional and marketing materials. You hereby grant us a non-exclusive, perpetual and irrevocable right and license us to use your User Comments in connection with our Podcasts and Services.
Similarly, if you provide us with any Feedback, you hereby grant us a non-exclusive, fully paid, royalty-free, worldwide, perpetual, irrevocable, sublicensable, transferable, and assignable license to use, reproduce, distribute, modify, adapt, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit any and all Feedback for any purposes, for all current and future methods and forms of exploitation. “Feedback” means suggestions, comments, ideas, and all other types of information that you provide, publish, or otherwise communicate directly or indirectly to us that relates to our Content and/or Services.
In order to access or use some of the Services or access the Content, you may be required to first register with us. If you are under the age of eighteen (18), then you are not permitted to register as a user or submit personal information to us.
If you register for any feature that requires a password and/or username, then you agree that: (i) You will not use a username (or email address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. We may reject the use of any password, username, or email address for any other reason in our sole discretion. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
6. Subscription Services and Other Purchases
You may be able to purchase additional Content, gift cards, offerings, merchandise, and other items offered through the Services. Unless specifically allowed and authorized by our Refund Policy, all purchases, including without limitation of any gift cards, Content, or other offerings, are final and we are not able to offer any refunds. In addition, some of our Services and/or Content offerings may be made available by us solely in connection with your agreement to purchase a subscription to such offerings (“Subscription Services”) for a set period (e.g., monthly or yearly subscription term) (“Subscription Period”). We may offer a number of different packages or variations of Subscription Services, including in some instances a limited free trial period (“Free Trial”), which will be posted on our Sites and/or Apps. Following the completion of the Subscription Period and/or Free Trial, your Subscription Services will automatically renew for the same Subscription Period at the then-current standard rates for access to the same Subscription Services, unless and until they are cancelled or changed by you within 24 hours prior to the end of the current period.
By subscribing to a Subscription Service or purchasing any Content, you confirm that you are at least 18 years of age, that all information you submit is true and correct (including all credit card information), and that you are the authorized holder of the credit card. If you choose to cancel a Subscription Service, you can continue to use the features of your Subscription Service following cancellation until the end of your Subscription Period. You will not be charged for the Subscription Service again unless you reactivate. Payments for Subscription Services are non-refundable and there are no refunds for partial Subscription Periods.
We may change the price of a Subscription Service, introduce new subscription plans, or remove plans from time to time. By continuing to use the Subscription Service, you indicate your acceptance of such subscription price or plan change. If you do not agree with a subscription price or plan change, do not continue to use the Subscription Service. Subscription Services may not be redeemed for cash, sold or transferred to another user.
Once you enter and submit your payment information, you expressly agree and authorize us and/or our third party payment processor to immediately charge your credit card or debit card (or other approved facility) in an amount equal to the total purchase price. You also expressly authorize and agree that we and/or our third party payment processor is authorized to automatically charge your payment method for any one-time fees and/or Subscription Services. You acknowledge and agree that we do not need to obtain any additional authorization from you for any automatic and/or recurring payments.
Some Subscription Services may be offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties.
You are not authorized to access any Subscription Services unless you have opened a subscription account and paid the appropriate fee. You may not assist anyone else in accessing Subscription Services on an unauthorized basis, including by sharing your access credentials or providing any content or other materials that you obtained through Subscription Services to third parties. You are responsible for maintaining the confidentiality of your access credentials and for all usage or activity on your Subscription Services accounts, including the use of Subscription Services by any third party authorized by you to use your access credentials. Such responsibility expressly includes any purchases made or other charges incurred on your credit card in connection with your use (or an authorized third party’s use) of the Subscription Services. In the event of any fraudulent, abusive or otherwise illegal activity on your Subscription Services accounts, we may, in our sole discretion, terminate those accounts and refer you to appropriate law enforcement agencies. You may be responsible for damages from any such fraudulent, abusive, or otherwise illegal activity.
7. Disclaimers and Limitation of Liability
DISCLAIMER: ALL INFORMATION, CONTENT, SERVICES, AND MATERIAL AVAILABLE IN THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULL EXTENT PERMISSIBLE BY LAW, WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ITS VIDEOS OR ANY OTHER Level Up By DK MATERIALS. FURTHER, Level Up By DK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE VIDEOS OR ANY OF THE OTHER MATERIALS ON OR AVAILABLE THROUGH, ITS SITE OR OTHERWISE RELATING TO SUCH VIDEOS OR MATERIALS OR ON ANY SITES LINKED TO THIS SITE
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT (1) THE SERVICES WILL OPERATE PROPERLY, (2) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, (3) THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, BUG FREE, OR ERROR FREE IN ANY OR ALL CIRCUMSTANCES, OR (4) THAT ANY DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED. THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY: YOUR PURCHASE AND/OR USE OF THE SERVICES AND CONTENT IS AT YOUR OWN RISK. WE DO NOT WARRANT THAT YOUR ABILITY TO ACCESS THE SERVICES OR CONTENT WILL BE TIMELY, SECURE, UNINTERRUPTED OR DEFECT-FREE. IN NO EVENT WILL WE NOR OUR AFFILIATES BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OR LOSS OF DATA, OR BUSINESS INTERRUPTION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT ARISING IN ANY WAY OUT OF PURCHASE OR USE OF THE CONTENT OR SERVICES. IN NO EVENT WILL YOU BE ENTITLED TO A REFUND OR CHARGEBACK FOR THE CONTENT OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Level Up By DK AND ITS AFFILIATES LICENSORS AND DISTRIBUTORS SHALL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE CONTENT OR SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE CONTENT OR SERVICES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE CONTENT OR SERVICES WILL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) FOR THE CONTENT OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION.
This section only applies to the extent permitted by applicable law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
You agree to indemnify, pay the defense costs of, and hold Level Up By DK, its licensors and distributors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you, or (b) any act or omission by you in using the Services. You agree to reimburse Level Up By DK on demand for any defense costs incurred by Level Up By DK and any payments made or loss suffered by Level Up By DK, whether in a court judgment or settlement, based on any matter covered by this Section 8.
We reserve the right to terminate your right to access and use the Services and/or Content if you violate these Terms or any other terms or policies referenced herein, or if you otherwise create risk or possible legal exposure for us.
10. Governing Law and Jurisdiction
This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee, United States of America, without reference to the principles of conflict of laws of any jurisdiction (including those of the State of Tennessee). For any disputes deemed not subject to binding individual arbitration, as provided in the section immediately below, you agree to submit to the exclusive jurisdiction and venue of the state and federal courts in Travis County, Tennessee, and you agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts.
11. Links to Third Party Sites
12. Digital Millennium Copyright Act (DMCA) Notices; Copyright Agent
We respect the intellectual property rights of others. To the best of our knowledge, the Content that appears on our Services does not infringe the copyrights of others. If you believe that your work has been copied in a way that constitutes copyright infringement by any content or material on our Services, please provide the following information in writing to us for further detail:
1.A physical or electronic signature of a person authorized to act on behalf of the copyright owner.
2. A description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, like the site URL of the material.
3. Information so that we can contact you, such as address, telephone number and electronic mail address.
4. A statement that you (the complaining party) have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
If you believe that we improperly removed or disabled content or materials you posted, uploaded or submitted to the Services, please provide the following to us for further detail:
1.Your physical or electronic signature.
2. A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.
13. Amendments of this Agreement
14. No Assignment
You may not, without the prior written consent of Level Up By DK, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. We, however, may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.
15. International Users
Our Services are controlled and operated by us from within the United States of America, and is intended for use only by residents of the United States. We make no representations or warranties that the content or materials of the Services are appropriate or lawful in any foreign countries, or that any items or subscriptions offered for sale through the Services will be available outside the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use, export or re-export any content downloaded from the Services or any copy or adaptation of such content, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
16. Who May Use Our Services
Unless stated otherwise for a particular Service, children are not allowed to use the Services or access the Content. A child is a person under 18 years old. To the extent permitted under applicable law, Level Up By DK declines any responsibility regarding any activities conducted by a child with or without the permission of a parent. If you are a parent and you give your permission for your child to register for one of the services, you thereby agree to the terms relating to use of the services by your child.
17. Binding Individual Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.
Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. If you live in the United States or another jurisdiction which allows you to agree to arbitration, you and Level Up By DK agree to arbitrate all Disputes (defined below) regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, except that each party retains the right: (a) to bring an individual action in small claims court and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
In the event of any dispute, controversy, or difference, arising among or out of, or in relation to, or in connection with the interpretation or performance of this Agreement or any of the terms hereof, or a breach hereof (“Dispute”), the parties hereto shall promptly conduct informal discussions and negotiations in good faith with a view to resolve such Dispute effecting as nearly as possible the intent and purposes of this Agreement. Any resolution of such Dispute shall be set forth in a writing signed by the parties.
If such Dispute cannot be satisfactorily resolved by the Parties themselves through friendly consultation within a period of thirty (30) calendar days after notice by you to Level Up By DK of a Dispute, you or Level Up By DK may commence an arbitration in accordance with this Agreement.
The arbitration shall be initiated and conducted according to either JAMS Streamlines (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) arbitration rules and procedure in effect at the time the request for arbitration is made, except as modified herein, including the optional appeal procedure (the “Arbitration Rules”). The Tribunal will consist of one arbitrator having experience in intellectual property and commercial disputes. The place of arbitration will be the Los Angeles, California office of JAMS or its successor (“JAMS”). The language to be used in the arbitral proceedings will be English. You and Level Up By DK agree that whether a dispute is subject to arbitration under this Agreement will be determined by the arbitrator rather than a court. Any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. Judgment upon the decision or award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Level Up By DK will pay its arbitration costs as required by the Arbitration Rules and, in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Each side shall pay his, her, or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and/or litigation costs, in which case the arbitrator shall award fees or costs as required by the applicable law.
18. Class Action Waiver.
THE ARBITRATION PROCEEDINGS DESCRIBED ABOVE IN SECTION 17 OF THIS AGREEMENT WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Neither You nor Level Up By DK shall be entitled to join or consolidate disputes by or against other individuals or entities, or to arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity, in connection with any Dispute. Further, unless both you and we agree, the arbitrator may not consolidate more than one person’s claim. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law, but to the maximum extent permitted by applicable law, may not award relief against Level Up By DK respecting any person other than you.
19. Your 30-Day Right to Opt Out
You have the right to opt out of and not to be bound by the Binding Individual Arbitration of section 17 and Class Action Waiver of section 18 of this Agreement. To exercise this right, you must send email notice of your decision to Level Up By DK, Inc, Via email firstname.lastname@example.org Attn: Legal
Your notice must include your name, mailing address, date you first purchased the Subscription Service and/or Content, and state that you do not wish to resolve disputes with us through arbitration. To be effective, this notice must be postmarked or deposited within 30 days of the date on which you first purchased the Subscription Service and/or Content unless a longer period is required by applicable law; otherwise you will be bound to arbitrate disputes in accordance with this Agreement.
You are responsible for ensuring that we receive your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, we will similarly not be bound by them with respect to Disputes with you.
Waiver: Failure of Level Up By DK to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provision or our right to enforce each such provision and no waiver, if granted, shall be continuing. No waiver of any term or condition of this Agreement shall be valid or binding on us unless the same shall have been set forth in a written document, specifically referring to this Agreement and duly signed by Level Up By DK.
Entire Agreement: This Agreement sets forth the entire agreement between you and us with respect to the subject matter hereof, and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between you and us to the extent that any such Agreement relates to the subject matter hereof.
Severability: If, but only to the extent that, any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then the parties shall be relieved of all obligations arising under that provision, it being the intent that this Agreement will be deemed amended by modifying the provision to the extent necessary to make it legal and enforceable while preserving its intent. If that is not possible, it shall be substituted with another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement is not affected and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law.
Assignment: Level Up By DK shall have the right to assign this Agreement and all or any part of our rights hereunder to any person, firm or corporation, and this Agreement shall be binding upon and inure to the benefit of our successors, licensees and assigns. This Agreement the rights and obligations hereunder may not be assigned by you.
Contact Us: Via email: email@example.com , Attn: Legal