Terms & Conditions of Use
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October 22, 2020
This website (“Website”) is operated by InCharge Debt Solutions (“InCharge”) and these terms and conditions apply to all websites and text message programs owned, operated, controlled and otherwise made available by InCharge and its affiliates (including, but not limited to, mirrored, co-branded and successor sites).
IMPORTANT – READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE ACCESSING OR USING THIS WEBSITE, SUBSCRIBING TO INCHARGE SERVICES, INCLUDING THE TEXT PROGRAM PURCHASING PRODUCTS, DOWNLOADING SOFTWARE, TECHNOLOGY, CONTENT OR DATA AND/OR OTHERWISE USING THE INCHARGE SERVICES AND PRODUCTS, AND THE RELATED INCHARGE SOFTWARE, DATA AND/OR TECHNOLOGY USED, STORED, LICENSED OR ACCESSED IN CONNECTION THEREWITH AND THE RELATED INTELLECTUAL PROPERTY RIGHTS EMBODIED THEREIN (COLLECTIVELY, THE “INCHARGE TECHNOLOGY”).
These Terms and Conditions of Use include an Arbitration Agreement, which will govern any dispute between you and us. Unless you opt out as described below, this Arbitration Agreement will:
· Eliminate your right to a trial by jury; and
· substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings.
INCHARGE IS WILLING TO PROVIDE YOU WITH ACCESS TO THE INCHARGE TECHNOLOGY THROUGH THIS WEBSITE AND MAKE AVAILABLE PRODUCTS AND SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, ON ANY REGISTRATION OR ORDER FORM RECEIVED BY YOU FROM INCHARGE OR ITS AFFILIATES IN CONNECTION WITH THE INCHARGE TECHNOLOGY (COLLECTIVELY, “REGISTRATION AND ORDER FORMS”) AND ON ANY DOCUMENTS REFERENCED HEREIN OR ANY additional terms and conditions that can be viewed either on the pages containing ANY services or offerings, or via a link on those pages or other directions to the additional terms and conditions (COLLECTIVELY, THE “AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY CEASE USING THE INCHARGE TECHNOLOGY, AND/OR EXIT THIS PAGE BEFORE DOWNLOADING, ACCESSING, USING, SUBSCRIBING OR INSTALLING THE INCHARGE TECHNOLOGY OR PURCHASING PRODUCTS AND SERVICES FROM INCHARGE.
Authority
By accessing, subscribing, downloading and/or otherwise using the InCharge Technology, you (a) certify that you are at least 18 years of age, and that, if you are acting on the behalf of any person or entity, you are authorized to act on behalf of such party, (b) have read this Agreement and have agreed to be legally bound by this Agreement, and (c) agree to all operating rules and policies of InCharge that may be published within the InCharge Technology or this Website.
Intellectual Property
The InCharge Technology (including, this Website) is owned and operated by InCharge and its licensors and are protected by copyright and other intellectual property laws under United States and international laws and treaties – Copyright 2010-2020 InCharge Debt Solutions. All rights reserved. The compilation and arrangement of all content, data and other information found within the InCharge Technology is also the sole and exclusive property of InCharge and its licensors and is protected by U.S. and international intellectual property laws. The “look and feel” of the InCharge Technology, meaning, the structure, sequence and layout of the audiovisual components of such technology as perceived by you, including, but not limited to, the color combinations, button shapes, and all other graphical and navigational elements, are also proprietary to InCharge and its licensors and fully protected under U.S. and international intellectual property laws.
Trademarks
Any and all trademarks displayed within the InCharge Technology are owned by InCharge, its licensors or its affiliates. Nothing in this Agreement should be construed as transferring any aspects of such rights to you or to any third party.
Confidentiality
At all times during the term hereof and at all times thereafter, you shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of yourself, or any other individual or entity, any Confidential Information of InCharge. “Confidential Information” means any Submissions, trade secrets, or confidential or proprietary information whether in written, digital, oral or other form that is unique, confidential or proprietary to InCharge or its licensors, including, but not limited to, all parts of the InCharge Technology and any other materials or information related to the business or activities of InCharge that are not generally known to others engaged in similar businesses or activities.
Digital Millennium Copyright Act Notice
Pursuant to the Digital Millennium Copyright Act, InCharge has designated the person listed below as its agent to receive notifications of alleged copyright or other intellectual property infringement on this Website. InCharge respects the intellectual property of others, and asks our users to do the same. If you believe that your work has been copied in a way that constitutes infringement, or your intellectual property rights have been otherwise violated, please provide InCharge’s Copyright Agent the following information (the “Copyright Notice”): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim has been infringed is located in the InCharge Technology; (d) your address, telephone number and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the information in your Copyright Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
InCharge’s Agent for transmitting the Copyright Notice for claims of copyright or other intellectual property infringement can be contacted at:
InCharge
Office of the General Counsel
5750 Major Boulevard, Suite 300
Orlando, FL 32819
Use of the InCharge Technology
Subject to the terms and conditions set forth herein and any third party restrictions, InCharge grants you a non-transferable, non-exclusive and non-sublicenseable limited right and license to view, use and access the InCharge Technology to incidentally view, print and download the images, text, graphics, photographs, audio, video and other content available within the InCharge Technology solely for your informational purposes and for your immediate, private, personal and non-commercial use; provided you retain all InCharge copyright and proprietary notices contained in the original materials or any copies thereof.
All rights not expressly stated herein are reserved by InCharge and InCharge disclaims any and all implied licenses. Without limiting the foregoing, you agree not to: (i) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or otherwise access the InCharge Technology, or any part thereof; (ii) copy, distribute, display, transmit or reproduce the InCharge Technology, or any part thereof, in any form, including, but not limited to, fonts, icons, link buttons, wallpaper, and unlicensed merchandise; (iii) publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, publicly display or perform, co-brand, frame, permit third parties to link to, or create compilations or derivative works of the InCharge Technology, or any part thereof, including, but not limited to, using any part of the InCharge Technology to create fonts, icons, links, buttons, wallpaper and unlicensed merchandise; (iv) assign, sublicense, convey, transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder; or (v) use the InCharge Technology in any fashion that may infringe any patent, copyright, trademark, trade secret or any other intellectual property or proprietary right of InCharge, its third party suppliers or any other third party.
You agree not to access the InCharge Technology by any means other than through the interface that is provided to you by InCharge for use in accessing the InCharge Technology.
By posting of information or other materials on this Website or within the InCharge Technology or by making such information available for downloading by you, InCharge does not waive any proprietary right in and to the InCharge Technology (including, but not limited to, copyright, service mark, trademark, patent, trade secret or other intellectual property or proprietary right) and does not transfer any rights to you in the InCharge Technology except for the limited license expressly granted herein.
Submissions
Any and all comments, suggestions, ideas, graphics, personally identifiable information and any other information that you transmit to InCharge through the InCharge Technology (“Submission”) become and will remain the sole and exclusive property of InCharge and may be used by InCharge anywhere, anytime and for any reason whatsoever, including, but not limited to, developing, manufacturing, and marketing products and services incorporating the Submission, subject only to our Privacy Policy with respect to our use of your personally identifiable information. By making a Submission, you waive the right to make any claim against InCharge Debt Solutions or any of its respective parents, subsidiaries, affiliates, employees, agents, directors, officers, and shareholders related to the Submission, including, but not limited to, unfair competition, invasion of privacy, negligence, breach of implied contract or breach of confidentiality, and you further waive all moral rights you may have in any materials uploaded or sent to us by you. To the extent InCharge does not acquire full ownership to your Submission, you hereby assign all right, title and interest in and to your Submission to InCharge without the payment of any further consideration to you by InCharge. You agree to execute any instruments and to do all things reasonably requested by InCharge to vest in InCharge all right, title and interest in and to your Submission. You also hereby irrevocably designate and appoint InCharge and its duly authorized officers and agents as your agent and attorney in fact, which appointment is coupled with an interest, to act for and in its behalf to execute, verify and file any document and do any other lawfully permitted acts to further the purpose of the foregoing sentences with respect to the ownership of the Submission as if executed by you.
You represent and warrant that your Submissions: (a) shall be true, accurate, current, complete and not misleading, (b) shall not violate the rights of any third party, including, but not limited to, intellectual property and proprietary rights, (c) shall not be fraudulent or involve counterfeit or stolen information or items, (d) shall not violate any law, statute, ordinance or regulation, and (e) shall not create any liability for InCharge. You also agree to maintain and promptly update your Submissions by means of the InCharge Technology in order to keep that information true, accurate, current and complete.
Participation Disclaimer
InCharge does not and cannot review all Submissions posted to or created by users accessing the InCharge Technology (including, but not limited to, this Website), and is not in any manner responsible for the content of these communications or the activities of these users. You acknowledge that by providing you with the ability to view and distribute user-generated content through the InCharge Technology (including, but not limited to, this Website), InCharge is merely acting as a passive conduit for the distribution of such information and is not undertaking any obligation or liability relating to the content or the users’ activities. Even though InCharge may monitor and review transmissions, we assume no responsibility or liability which may arise from the content thereof, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy, obscenity, profanity or misrepresentation. Notwithstanding the foregoing, InCharge reserves the right to block or remove communications, postings, or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading; (c) in violation of a copyright, trademark, patent, trade secret or other intellectual property rights of another or (d) offensive or otherwise unacceptable to InCharge in its sole discretion.
Disruptive Behavior
Harassment in any manner or form on this InCharge Website or through the use of the InCharge Technology, including via email, web blog (“blog”), comments, submissions, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others or misrepresenting your affiliation with another, including a InCharge employee or representative, as well as other members or visitors on this InCharge Website or through use of the InCharge Technology is prohibited. You may not upload to, distribute, send or otherwise publish through this InCharge Website or within the InCharge Technology any content which is harmful, libelous, defamatory, obscene, disruptive, harassing, threatening, offensive, invasive of privacy or publicity rights, abusive, hateful, or racially, ethnically or otherwise objectionable; which may constitute or encourage a criminal offense, violate the rights of any party; or which may otherwise give rise to civil liability, violate any law or infringe on a third party’s intellectual property right (including, but not limited to, material that violates InCharge’s then current policies).
You may not: (i) use InCharge Technology to harm minors in any way; (ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the InCharge Technology; (iii) upload, post, email, transmit or otherwise make available any materials that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (iv) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; and (v) “stalk” or otherwise harass another; or collect or store personal data about other users.
Electronic Delivery Policy and Your Consent
By using the InCharge Technology, you consent to receive from InCharge all communications including notices, agreements, legally required disclosures or other documents or information in connection with the InCharge Technology (collectively, “Notices”) electronically in accordance with our Electronic Delivery Policy. InCharge may in its discretion provide such electronic Notices by posting them on this Website. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Website and the InCharge Technology.
Warranty Disclaimer
You access and use the InCharge Technology at your sole risk. The InCharge Technology is provided to you on an “as is” and “as available” basis. To the fullest extent permissible pursuant to applicable law, InCharge disclaims all warranties (whether express, statutory or implied) of any kind, including, but not limited to, implied warranties of title, merchantability, data accuracy, system integration, fitness for a particular purpose, non-infringement and any other warranty arising under the Uniform Commercial Code, usage of trade, course of conduct or otherwise.
Without limiting the foregoing, InCharge does not represent or warrant that (a) the InCharge Technology will be uninterrupted, timely, secure or error-free, (b) the defects in the InCharge Technology will be corrected, (c) the InCharge Technology or the servers that operate the InCharge Technology are free of viruses or other harmful components, (d) the data, results and information within the InCharge Technology will be correct, accurate, adequate, useful, reliable or otherwise; and (e) the InCharge Technology will meet your needs, requirements or expectations.
InCharge may make changes to the content within the InCharge Technology or to the products or services described in it, at any time without notice to you. Further, InCharge assumes no liability or responsibility for any errors or omissions in the content within the InCharge Technology. The materials in the InCharge Technology may be out of date or inaccurate, and InCharge specifically disclaims any duty to update such content.
Any material downloaded or otherwise obtained by you through the use of the InCharge Technology is done at your sole discretion and risk. You will be solely responsible for any damage to your computer system or loss of data that results from the downloading of any such material including, but not limited to, damage caused by viruses.
You acknowledge and agree that InCharge shall not be responsible or liable for (i) any unauthorized access to or alteration of your Submissions; (ii) any Submission sent or received or not sent or received and (iii) any Submission stored on storage devices owned, operated or controlled by InCharge. You acknowledge and agree that InCharge shall not be responsible or liable for any Submissions or conduct of any third party, including, but not limited to, content sent using and/or included within the InCharge Technology provided by any other user of this Website or any third party licensors or suppliers of InCharge.
Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you. If any of the exclusions set forth in this Section is determined by a court of competent jurisdiction to be unenforceable, then all such express, implied and statutory warranties shall be limited in duration for a period of thirty (30) days after the date on which you first access the InCharge Technology, and no warranties shall apply after such period.
Limitation of Liability
NEITHER INCHARGE, ITS SUPPLIERS, OTHER THIRD PARTIES MENTIONED WITHIN THE INCHARGE TECHNOLOGY, NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE INCHARGE TECHNOLOGY AND SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, PUNITIVE DAMAGES, OR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND WHICH MAY ARISE, DIRECTLY, OR INDIRECTLY, FROM YOUR USE OF, ACCESS TO, OR INABILITY TO USE AND ACCESS THE INCHARGE TECHNOLOGY OR FROM YOUR PURCHASE OF PRODUCTS AND/OR SERVICES PURCHASED THROUGH THIS WEBSITE, INCLUDING, WITHOUT LIMITATION, DAMAGES OR INJURY FROM OR RELATING TO: THE DOWNLOADING OF ANY MATERIAL CONTAINED WITHIN THE INCHARGE TECHNOLOGY; THE LINKING TO OTHER WEBSITES FROM THE INCHARGE TECHNOLOGY; THE SERVICES, PRODUCTS OR INFORMATION OFFERED ON, MADE AVAILABLE THROUGH THIS WEBSITE; COMPUTER VIRUS OR SYSTEM FAILURE; AND/OR THE UNAVAILABILITY OF ANY SERVICES OR PRODUCTS MENTIONED WITHIN THE INCHARGE TECHNOLOGY WHETHER OR NOT INCHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT SHALL INCHARGE’S AGGREGATE LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE FEES PAID, IF ANY, BY YOU TO INCHARGE FOR ACCESS AND USE OF THE INCHARGE TECHNOLOGY OR THE PURCHASE PRICE OF ANY GOODS OR SERVICES PURCHASED THROUGH INCHARGE TECHNOLOGY, OR, IN ALL OTHER CASES, FIVE DOLLARS ($5.00).
ANY CREDIT SCORE MADE AVAILABLE TO YOU BY INCHARGE THROUGH THE SERVICES ON THIS WEBSITE IS NOT A FICO SCORE, AND IS NOT A MEANT TO REPLICATE ANY CREDIT SCORES REPORTED BY ANY OTHER COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY CONSUMER REPORTING AGENCY. INCHARGE DOES NOT GUARANTEE THAT ANY ESTIMATED CHANGE IN YOUR CREDIT SCORE PRESENTED AS PART OF ANY SERVICES AVAILABLE ON THIS WEBSITE WILL RESULT IN AN EQUAL OR COMPARABLE CHANGE IN ANY CREDIT SCORE CALCULATED BY ANY OTHER COMPANY WITH REGARD TO YOUR CREDIT.
INCHARGE IS NOT IMPLYING AND DOES NOT GUARANTEE THAT THE SERVICES AVAILABLE ON THIS WEBSITE WILL IMPROVE YOUR CREDIT RECORD, CREDIT HISTORY, CREDIT RATING OR CREDIT SCORE. WE WILL NOT LEND YOU MONEY OR REPAY YOUR DEBTS, NOR WILL WE ASSIST YOU IN OBTAINING AN EXTENSION OF CREDIT IN ANY MANNER. WE DO NOT, AND WILL NOT CONTACT ANY CONSUMER CREDIT REPORTING AGENCY ON YOUR BEHALF TO DISPUTE ANY INFORMATION CONTAINED ON YOUR CREDIT REPORT. CERTAIN FEDERAL AND STATE LAWS PROHIBIT MAKING ANY STATEMENT WHICH IS UNTRUE OR MISLEADING WITH RESPECT TO YOUR CREDIT WORTHINESS, CREDIT STANDING OR CREDIT CAPACITY (I) TO A CREDIT REPORTING AGENCY, OR (II) TO ANY PERSON (A) WHO HAS EXTENDED CREDIT TO YOU OR (B) TO WHOM YOU HAVE APPLIED OR ARE APPLYING FOR AN EXTENSION OF CREDIT. CERTAIN FEDERAL AND STATE LAWS ALSO PROHIBIT MAKING ANY STATEMENT THE INTENDED EFFECT OF WHICH IS TO ALTER YOUR IDENTIFICATION TO PREVENT THE DISPLAY OF YOUR CREDIT RECORD, HISTORY OR RATING (I) TO A CREDIT REPORTING AGENCY, OR (II) TO ANY PERSON (A) WHO HAS EXTENDED CREDIT TO YOU OR (B) TO WHOM YOU HAVE APPLIED OR ARE APPYING FOR AN EXTENSION OF CREDIT.
ANY INFORMATION PROVIDED TO YOU AS PART OF THE SERVICES MADE AVAILABLE ON THIS WEBSITE REGARDING YOUR RIGHTS UNDER FEDERAL, STATE OR OTHER LAW, INCLUDING, BUT NOT LIMITED TO, THE FAIR REPORTING ACT (15 U.S.C. 1681, ET SEQ.) AND THE FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003 (PUB. L. 108-159, 117 STAT. 1952) IS INTENDED TO PRESENT ONLY A GENERAL OVERVIEW OF SUCH LAW AND IS NOT INTENDED TO CONSITUTE LEGAL ADVICE. IF YOU HAVE SPECIFIC QUESTION OR CONCERNS RELATING TO SUCH LAWS, YOU SHOULD SEEK APPROPRIATE LEGAL COUNSEL.
SOME STATES DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN ALL CASES.
Access to InCharge Technology
You shall be responsible for obtaining access to the InCharge Technology and for all equipment necessary to access the InCharge Technology and you acknowledge that obtaining the foregoing may involve third-party fees (such as internet service provider or airtime charges). You are responsible for all charges associated with connecting you to the InCharge Technology, including, without limitation, all telephone, equipment, airtime and internet service provider charges.
Passwords and Your Obligations
You may be asked to register as a member on certain pages or services within the InCharge Technology and to select a unique username and password in order to be able to access your account and use any of the InCharge Technology. As a registered member, you are responsible for maintaining the confidentiality and security of your username and password and shall be responsible for all uses of your username and password, including, but not limited to, any purchases facilitated through the use thereof, whether or not in fact authorized by you. You agree to immediately notify InCharge in writing of any breach of security, including, without limitation, unauthorized use of your username or password. You also understand that exiting immediately from your account (i.e., “logging off”) at the end of each session will enhance your account security and that failure to do so may permit other persons having access to your computer to use, or modify, your account. If you permit any person to use your username and password, you shall be liable for all activity and transactions made by that person including transactions for which you may not have authorized.
Please notify us immediately of any unauthorized use of your user name and password via email to [email protected]
Security
The InCharge Technology resides on the public internet. InCharge uses commercially reasonable measures to protect the confidentiality and security of any communications transmitted to InCharge and any information stored on servers controlled by InCharge. Notwithstanding these efforts, InCharge cannot guarantee the confidentiality and security of such electronic communications and storage devices used to store such information (including, personally identifiable information) and disclaims all liability arising therefrom.
Without limiting the foregoing, you shall not (a) violate or attempt to violate the security of the InCharge or another entity; (b) access data or materials not intended for you; (c) log into or access a server or account which you are not authorized to access; (d) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (e) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with, disrupt, or harm in any way the InCharge Technology, the servers or networks used in connection with it, or services to any user, host or network; (f) use the InCharge Technology in violation of the requirements, procedures, policies or regulations of any other website providers, websites, chat rooms, networks connected to the InCharge Technology (including, but not limited, to this Website) or the like; (g) use Internet Relay Chat (IRC) bots via this InCharge Website (i.e., programs that utilize excessive resources by connecting to an IRC network and running 24 hours per day); (h) run any program on this InCharge Website or through the InCharge Technology that makes a service or resource available to others, including, but not limited to, port redirectors, proxy servers, chat servers or simulated multi-user environments; (i) run programs or specifically configure machines in such a way as to keep a dialup connection active when not in use or otherwise bypass automatic disconnection for inactivity, unless a dedicated access account is provided; or (j) engage in denial of service attacks (i.e., actions designed to impair network access by flooding a site or the Internet with useless traffic).
Violations of system or network security may result in civil or criminal liability. InCharge reserves the right to investigate occurrences that may involve such violations and may involve and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
Representations
Subject to the terms and conditions set forth herein, you may use the InCharge Technology only for lawful purposes. The InCharge Technology is subject to, and you agree that you shall at all times comply with, all applicable local, state, national, and international laws, statutes, rules, regulations and ordinances including, but not limited to, any regulations having the force of law that are applicable to the use of the InCharge Technology and to your Submission.
Authorization
To the extent you register and utilize the service known as the InCharge credit counseling services available on this Website, you hereby expressly authorize InCharge to obtain, on your behalf, a copy of your credit report from a credit reporting agency, and to disclose certain identifying information to said credit reporting agency such as your social security number as part of our effort to obtain your credit report. You hereby authorize us to receive your credit report and to utilize your report and the contents thereof in rendering the credit counseling services.
Indemnification
You agree to indemnify, defend, and hold harmless InCharge, its affiliates, agents, vendors, distributors, licensors and suppliers and their officers, directors, and employees from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (a) any violation of the terms and conditions of this Agreement, (b) any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing your account, (c) your use of (or inability to use) the InCharge Technology; and (d) any use of your Submission by InCharge or any other party, including, but not limited to, any third party claim of infringement of an intellectual property or proprietary right or invasion of privacy or publicity. Nothing herein shall apply to actions or claims under the provisions of the United States Bankruptcy Code, 11 U.S.C. § 111(g)(2).
Blog Disclaimer
The blog entries, quotations and other editorial content on this InCharge Website are provided “as is” with no warranties and confers no rights. The blog entries are solely the opinion of the author and do not necessarily reflect the opinions of InCharge and/or its affiliates.
Termination
You agree that InCharge, at its sole discretion, may terminate or suspend your access to and use of the InCharge Technology (or any part thereof) at any time and for no or any reason whatsoever, including, without limitation, for lack of use by you or if InCharge believes that you have violated or acted inconsistently with the terms and conditions of this Agreement. InCharge reserves the right at any time to modify or discontinue, temporarily or permanently your access to and use of the InCharge Technology (or any part thereof) without notice. You agree that InCharge shall not be liable to you or to any third party for any modification, suspension or discontinuance of your use of or access to the InCharge Technology. Your obligations under this Agreement shall continue even after InCharge has terminated and/or cancelled this Agreement or your access to the InCharge Technology.
Applicability of Content
This Website is operated in the State of Florida, United States of America, and InCharge makes no representation that the content provided through the InCharge Technology are applicable or appropriate for use in jurisdictions other than the United State of America. If you access our InCharge Technology (including, but not limited to, this Website) from outside of the United States, please be aware you are responsible for compliance with any applicable laws. To the extent any applicable local laws prohibit your viewing and use of the InCharge Technology, you may not view or use the InCharge Technology.
Privacy Policy
We realize that you are concerned about how the information you provide online will be used. InCharge has a Privacy Policy that discloses what information InCharge collects about you, how InCharge uses such information, the steps InCharge takes to secure such information, how you can view and correct such information and how you can decline to have such information about you collected or used. The Privacy Policy is available on this Website and is incorporated herein by this reference. Please read our Privacy Policy for more details.
Jurisdiction
This Agreement shall be governed and construed in all respects by the laws of the State of Florida, without regard to principles of conflict of laws and without application of the Uniform Computer Information Transaction Act and the United Nations Convention of Controls for International Sale of Goods. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of InCharge Technology, and purchases of products and/or services through the InCharge Technology must be filed within one (1) year after such claim or cause of action arose or be forever barred, and you expressly waive any other statute of limitation which otherwise may apply. You agree to submit to the exclusive jurisdiction of the courts of the State of Florida or the United States District Court for the State of Florida for resolution of any dispute, action or proceeding arising in connection with this Agreement or your use or non-use of this Website. You hereby irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.
Order of Preference
This Agreement governs your use and access to the InCharge Technology. This Agreement does not modify, alter or amend any other specific agreement you have entered or will enter into with InCharge. To the extent that any provision of this Agreement, or any supplemental agreement offered as any part of any registration for additional services on this Website or within the InCharge Technology, conflicts with any provision of your other agreements with InCharge, the terms and conditions of such other agreement shall, take precedence over the conflicting term(s) and conditions of this Agreement.
Links to Other Web Sites
The InCharge Technology contains links to other web sites (“Third Party Sites”) controlled or offered by third parties (non-affiliates of InCharge). InCharge is not responsible for the content, accuracy or opinions expressed on such Third Party Sites and such sites are not investigated, monitored or checked for accuracy or completeness by InCharge. InCharge hereby disclaims any and all liability for, any information, materials, and products or services posted or offered at any of the Third Party Sites. By creating a link to Third Party Sites, InCharge does not endorse or recommend any products or services offered or information contained at Third Party Sites, nor is InCharge liable for any failure of products and services offered or advertised at those sites. Such third parties may have a privacy policy different from that of InCharge and Third Party Sites may provide less security than InCharge.
Revisions and Consents
InCharge reserves the right to revise the terms and conditions of this Agreement at any time and for no or any reason whatsoever. InCharge also reserves the right to make changes at any time, without notice or obligation, to any of the information, products or services contained on or offered through the InCharge Technology (including, but not limited to, on this Website). Such updates, revisions, supplements, modifications and additional rules, policies, terms and conditions shall be effective immediately and incorporated in this Agreement upon notice thereof, which may be given by any reasonable means, including, but not limited to, posting such changes on this Website or via electronic notice as described above. By continuing to enter this Website and/or using the InCharge Technology, you acknowledge and agree that you shall be bound by any such revisions. Accordingly, you should periodically review the terms and conditions of this Agreement.
ARBITRATION AGREEMENT WITH CLASS ACTION WAIVER
Mandatory Binding Individual Arbitration. Except as expressly provided below, you agree that any dispute, claim, case, or controversy (whether based in tort, contract, statute, regulation, ordinance, equity or any other legal theory) between you and InCharge (whether arising out of or relating to past, present or future acts or omissions) (“Claims”) shall be exclusively resolved by binding arbitration on an individual basis, rather than in court (“Arbitration Agreement”).
Waiver of Class Actions. You and In Charge each agree that each party will assert Claims in arbitration only in our individual capacity, and not as a representative or member of any purported class. We each agree that we will not participate in any class, mass, collective, consolidated, private attorney general or other representative arbitration proceeding. Each party agrees that the arbitrator has no authority to arbitrate Claims on a class-wide basis and shall not consolidate, combine, or jointly arbitrate Claims of more than one person in a single arbitration.
Waiver of Jury Trial. Each party waives its constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, electing instead to resolve by binding arbitration all Claims.
Small Claims Not Subject to Arbitration. Either party may bring individual Claims in small claims court.
Arbitration Procedures. Either party may initiate an arbitration proceeding, which will be conducted by a single neutral arbitrator.
Arbitration Provider. Each party will initiate arbitration before JAMS, Inc. (“JAMS”) or any successor to JAMS, which is an alternative dispute resolution provider (“ADR Provider”). In the event JAMS is unwilling or unable to set a hearing date within fourteen (14) days of the filing of a “Demand for Arbitration”, then either party can elect to have the arbitration administered by another mutually agreeable arbitration administration service who will hear the case.
Arbitration Rules. The arbitration will be conducted under the JAMS Streamlined Arbitration Rules and Procedures (available at www.jamsadr.com) (“Arbitration Rules”). The rules of the ADR Provider will govern all aspects of the arbitration, except to the extent such rules are in conflict with this Arbitration Agreement.
Arbitration Location. If an in-person hearing is required, then it will take place in Orlando, FL, Minneapolis, MN, Chicago, IL, New York City, NY, Los Angeles, CA, Atlanta, GA or Dallas, TX (whichever is closest to your residence), unless the claimant primarily resides outside the United States (in which case the arbitrator will give the parties reasonable notice of the date, time and place of any oral hearings).
Fees. Payment of all filing, administrative, and arbitrator fees will be governed by the Arbitration Rules.
Arbitrator’s Authority and Award. The arbitrator will decide the rights and liabilities, if any, of the parties, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any Claim. The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s Rules, and this Arbitration Agreement. The arbitrator will issue a written award and reasoned statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. Any award will be subject to judicial confirmation or entry in any court having jurisdiction.
Governing Law. This Arbitration Agreement is governed by the Federal Arbitration Act and federal arbitration law.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to, the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement or to enforce an arbitration award.
General Provisions
If any part of this Agreement is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions of this Agreement. You agree that if any part of the terms and conditions of this Agreement are found to be unenforceable, then the remainder of the terms and conditions of this Agreement will remain in full force and effect.
InCharge’s failure to insist upon or enforce strict performance of any provision of the terms and conditions of this Agreement shall not be construed as a waiver of any other provision, term or right set forth herein. Neither the course of conduct between the parties nor trade practice shall act to modify any of the terms and conditions of this Agreement. InCharge may assign its rights and duties under this Agreement to any party at any time without notice to you. You may not assign this Agreement or the rights granted herein to any party without the prior written consent of InCharge. The section headings used in this Agreement are for convenience only and have no legal or contractual effect.
Entire Agreement
This Agreement constitutes the entire agreement between you and InCharge with respect to the subject matter addressed herein, and governs your access to and use of the InCharge Technology, superseding any prior agreements between you and InCharge relating to such subject matter, but this Agreement may be supplemented by any other agreement you enter into with InCharge pursuant to your enrollment and/or participation in other features of the InCharge Technology.
Print this Agreement
For record keeping purposes, InCharge encourages you to print this Agreement and the ancillary documents described herein.