WEBSITE TERMS OF SALE FOR PAID SERVICES
Last Modified: 01.07.2021
IMPORTANT NOTICE: THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
BY PLACING AN ORDER FOR SERVICES FROM THE WEBSITES (AS DEFINED BELOW), YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN SERVICES FROM THE WEBSITES IF YOU (A) DO NOT AGREE TO THESE TERMS OF SALE; (B) ARE NOT AT LEAST 18 YEARS OF AGE; OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE WEBSITES OR ANY OF THIS WEBSITES’ CONTENT OR SERVICES UNDER APPLICABLE LAW.
These terms and conditions (these “Terms of Sale”) apply to the purchase and sale of services (“Services”) on or through www.hardybraintraining.com, www.hardybraincamp.com, www.hardylearning.com, www.hardyfocus.com and www.sherriehardy.com (collectively, the “Websites”), all of which are owned by Hardy Brain Training Inc. (referred to as “the Company”, “us”, “we”, or “our” as the context may require). These Terms of Sale are subject to change by without prior written notice at any time, in our sole discretion. Any changes to these Terms of Sale will be in effect as of the “Last Modified” date referenced above. You should review these Terms of Sale prior to purchasing any Services. Your continued use of the Websites after the “Last Modified” date will constitute your acceptance of and agreement to such changes. These Terms of Sale apply to paid Services, as well as Services provided by the Company at no charge or through sponsorship by third-party donors (including Services provided to members of selected Boys and Girls Clubs).
1. Prices and Payment Terms.
(a) All prices posted on the Websites are subject to change without notice. The price charged for a particular program will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Posted prices include applicable taxes and charges for shipping and handling of any equipment or materials included in the particular program. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies or omissions at any time and to cancel any orders arising from such occurrences.
(b) Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. All purchases must be made with a valid credit card. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, regardless of the amount quoted on the applicable Website at the time of your order.
(c) If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Service may be suspended or canceled. You must resolve any problem we encounter in relation to the payment method you select in order to proceed with your use of the Service.
2. Refund Policies.
- Assessments: The purchase price for assessments is non-refundable.
- One-Time Program Purchases: One-time program purchases are non-cancelable and non-refundable. If the Company chooses to allow payment for a one-time program over time in monthly installments, you are responsible for paying the purchase price in full, whether or not you or your minor child choses to discontinue your use of the particular program before completion of the program.
- Training Programs: The enrollment fee (“Training Enrollment Fee”) for training programs is non-refundable.
- Month-to-Month Training Fee: The Company does not offer refunds of payments made for month-to-month trainings. For those parents and legal guardians who elect to enroll in month-to-month trainings, such trainings begin one month after payment of the Training Enrollment Fee, and will automatically renew for additional months until you cancel or the monthly trainings are suspended or discontinued by the Company. We bill for monthly trainings at the beginning of each monthly renewal term. If you wish to cancel month-to-month trainings, you must provide us notice of cancellation by email to firstname.lastname@example.org (please write “TERMINATION OF MONTHLY TRAININGS” in the subject line) at least 14 days before your monthly renewal date to avoid being billed for the subsequent month. You will have continued access to monthly trainings until the end of the month in which you cancel. The Company does not provide pro-rata refunds for unused days in the month of termination.
3. Interactive Metronome® Equipment.
Certain Services may include access to programs offered by Interactive Metronome® (an unaffiliated third party) that involve hardware provided by Interactive Metronome, including a “main station” that connects to a user’s computer, triggering devices and headphones (“Interactive Metronome Equipment”). When a user purchases a program that includes services provided by Interactive Metronome, Interactive Metronome will ship the Interactive Metronome Equipment directly to the Company so that the Company can program the main station depending on the needs of the particular child. When the Company has completed programming the main station, we will ship the Interactive Metronome Equipment to the customer.
ALTHOUGH WE WILL ASSIST YOU WITH ANY WARRANTY CLAIMS YOU HAVE AGAINST INTERACTIVE METRONOME IN CONNECTION WITH THE INTERACTIVE METRONOME EQUIPMENT, WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF INTERACTIVE METRONOME’S FAILURE TO HONOR ANY OF ITS WARRANTY OBLIGATIONS TO YOU. THIS EQUIPMENT IS PROVIDED BY US “AS IS” WITHOUT ANY WARRANTY FROM US WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
4. Video Conferencing Platforms.
During the assessment process and as part of the Services, you may be invited to join Company representatives on third-party videoconferencing platforms, such as Zoom or Google Meet (“Videoconference Platforms”). Videoconferences may be one-on-one between you and a Company representative, or may include the participation of one or more third parties, including other purchasers of the Services and third-party professionals or consultants (“other Participants”). Your use of the Videoconference Platforms is subject to the terms and conditions of each Videoconference Platform and is at your own risk. WE HAVE NO CONTROL OVER THE OPERATION OR FUNCTIONALITY OF THE VIDEOCONFERENCE PLATFORMS OR THE CONDUCT OF OTHER PARTICIPANTS, AND ACCEPT NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS, INJURY OR DAMAGE THAT YOU MAY SUFFER ARISING FROM YOUR USE OF SUCH PLATFORMS OR THE ACTS OR OMISSIONS OF OTHER PARTICIPANTS.
Certain Videoconference Platforms might be enabled with chat or message board functionality that permits attendees to make certain content available on the platforms and to other Participants, including text, comments, photos, pictures, files and data (collectively “Content”). By making your Content available on a Videoconference Platform, you hereby grant to the Company a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute your Content, in whole or in part, including your name and likeness, in any media. You represent and warrant that you are either the sole owner of your Content or you have all rights necessary to grant us a license to use your Content as described herein.
You represent and warrant that you will not (a) infringe, misappropriate or violate the intellectual property rights or rights of publicity or privacy of other Participants, and you will not engaged in any unauthorized use of any Content made available by other Participants during any videoconference; (b) engage in vulgar, indecent, offensive, threatening, harassing, racist, violent or defamatory behavior towards other Participants, or behavior that is otherwise unlawful, or that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; or (c) collect or solicit information from other Participants for any reason whatsoever, including without limitation for sending unsolicited communications. We reserve the right to terminate your participation in any videoconference if we determine in our sole discretion that your behavior is objectionable or restricts, inhibits or impairs other Participants’ use or enjoyment of such videoconferences.
You acknowledge and agree that any Content supplied by the Company on any Videoconference Platform is owned exclusively by the Company, and you agree that you will not use, copy, modify, publicly display, reproduce, translate, create derivative works from or distribute the Company’s Content without the Company’s express prior written authorization.
(a) Warranty Disclaimer. ALL SERVICES OFFERED ON THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
(b) Disclaimer regarding Results of Services. The Company strives to create programs that improve learning abilities and has a tremendous track record of success developed over decades in education. However, because of the complexity of human brain function, the tremendous variability of developmental level of our students, and in infinite number of variables beyond our control, the Company is unable to and does not make any representation, promise, guarantee or warranty regarding the outcomes, results or levels of improvement or success that will achieved by users of our Services. Any examples of actual results experienced by users of our Services, by way of examples, testimonials or otherwise that may appear on the Websites are not necessarily typical or representative of the results that can or should be expected by any particular user.
(c) Medical Advice Disclaimer: Any information presented on or through the Websites, including any questionnaires, assessments or Services is not intended to diagnose, cure, treat or prevent any medical or psychological problem or disorder, including without limitation any neurological deficits, learning disabilities, ADHD, dyslexia, dementia or similar disease. Any questionnaires or assessments provided by the Company are intended only as a screening aid to enable the Company to determine, in its sole discretion, if a particular child is an appropriate candidate for the Services. None of the Services, questionnaires or assessments are not provided, administered or reviewed by a physician or other healthcare professional, and are not intended as a substitute for seeking professional medical or healthcare advice.
(d) Physical Activity Disclaimer: Some of the Services may involve moderate physical activity and movements by students. It is your responsibility as parent or legal guardian to ensure that your minor child is physically capable of engaging in such activity and movements, and you, on behalf of yourself and your minor child, assume the risk that such activity and movements may not be appropriate for your minor child due to any medical condition, disease, injury, disability or any other reason.
7. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS OF SALE, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE SERVICES YOU HAVE ORDERED THROUGH OUR SITE. This limitation of liability shall (i) only apply to the extent permitted by law; and (ii) not apply to liability resulting from our gross negligence or willful misconduct.
8. Indemnification. You agree to defend, indemnify and hold harmless the Company and its officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Sale or your use of the Services other than as expressly authorized in these Terms of Sale. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of the Company.
9. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
10. Governing Law and Jurisdiction.
All matters relating to these Terms of Sale, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction).
Except where prohibited, you agree that any and all disputes, claims and legal proceedings directly or indirectly arising out of or relating to these Terms of Sale shall be resolved individually, without resort to any form of class action, and exclusively in the federal courts of the United States or the courts of the State of North Carolina, in each case located in the City of Durham, North Carolina, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Sale in the courts of your state, province or country of residence. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. By placing an order for Services on the Websites, you agree that any notice, agreement, disclosure or other communication that the Company sends you electronically will satisfy any legal communication requirements, including that such communications be in writing. Your placement an order for Services on the Websites constitutes your express permission and consent to the jurisdiction in such courts for the purposes of such actions. In any action to enforce these Terms of Sale, the prevailing party will be entitled to costs and attorneys’ fees. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SALE OR YOUR PLACEMENT OF AN ORDER FOR SERVICES ON THE WEBSITES MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
11. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent. Any purported assignment or delegation in violation of this Section 11 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale.
12. No Waivers. The failure by us to enforce any right or provision of these Terms of Sale will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.
13. Severability. If any provision of these Terms of Sale is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Sale and will not affect the validity or enforceability of the remaining provisions of these Terms of Sale.
14. No Third-Party Beneficiaries. These Terms of Sale do not and are not intended to confer any rights or remedies upon any person other than you.
16. Contact Information. To ask questions or comment about these Terms of Sale, contact us at: email@example.com.