Effective Date: July 14, 2025
This Terms of Service (“Terms”) is an agreement between you and TN Marketing, LLC (“TNM”, “us”, “our” or “we”) and sets forth the legally binding terms for your use of our websites, which include a link to these Terms (the “Sites”), as well as in connection with any of our sales or marketing activities or other services available on our Sites or offline (“Services”).
These Terms apply to your use of the Sites or Services (however accessed and/or used, whether via personal computers, mobile devices or otherwise) or any other means or applications in which you connect with us and your use of our Sites or Services.
By using our Sites or Services, you are agreeing to these Terms Please read them carefully. Our Sites or Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. If additional terms or conditions are available with or applicable to the relevant Sites or Services, then those additional terms become part of your agreement with us if you use those Sites or Services. By accessing or using the Sites or Services, you intend and agree to be legally bound by these Terms. You may wish to print or save a local copy of the Terms for your records.
Our Privacy Policy found at http://www.tnmpolicies.com is incorporated into and subject to these Terms by reference. Please review that Privacy Policy for information about how we collect, use, and share information, including the data rights available to you. We are not responsible for any information that you share with others via your use of our Sites or Services. You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of our Sites or Services. If you submit feedback or suggestions about our Sites or Services, you agree that we may use your feedback or suggestions without obligation to you.
YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS OF SERVICE LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTIONS 8 AND 9 BELOW.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTIONS 15 OR 16 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION OR SMALL CLAIMS COURT PROCEEDING. YOU FURTHER AGREE THAT YOU VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PRIOR TO COMMENCING ARBITRATION, YOU AGREE TO FIRST ATTEMPT TO SETTLE ANY DISPUTE WITH TNM USING THE INFORMAL DISPUTE PROCESS DESCRIBED BELOW.
PURCHASING THROUGH AN APP: If you have purchased a subscription or membership though an app (e.g., Google Play store or Apple iTunes Store) the sale is through the applicable app merchant and not through TNM. Therefore, your purchase and auto renewal payments will be subject to the terms of the applicable app merchant and payment and management of the subscription or membership will be administered by them. Sales through app stores are final and may not be subject to refund by the applicable app merchant.
QUICK LINKS
We recommend that you read these Terms in full to ensure you are fully informed. However, to make it easier for you to review those parts of these Terms which apply to you, we have divided up the document into the following sections:
1. Who We Are And Our Services
2. Acceptance of Terms
3. Account and Contact Information
4. Payment and Cancellation Rights
5. Your Use of the Sites and Services
6. Proprietary Rights
7. Digital Millennium Copyright Act Notice (U.S. only)
8. Disclaimer of Warranties
9. Limitation of Liability
10. Your Legal Liability
11. California Resident Rights
12. Geographic Restrictions
13. Changes to Terms of Service
14. Third Party Links
15. Arbitration / Dispute Resolution for U.S. Residents
16. Resolution of Disputes for Non-U.S. Residents
17. No Rights of Third Parties
18. Miscellaneous
19. Contact Us
1. WHO WE ARE AND OUR SERVICES
TN Marketing, LLC is a U.S. based company that sells online streaming services and products relating to topics that enable people to pursue their passions.
You must follow any policies made available to you within the Services, including our Privacy Policy, which form part of these Terms.
2. ACCEPTANCE OF TERMS
Agreement to the Terms. Each time that you access or use our Sites or Services you signify that you have read, understand, and agree to be bound by these Terms. If you do not agree to any of these Terms, you must discontinue using the Sites or Services.
Eligibility. You must be at least 18 years old or have reached the age of majority in the jurisdiction in which you reside to use the Sites or Services or become a member and by registering with us you attest that you have reached the age of majority and have the legal capacity to be legally bound by these Terms. The Sites or Services are not intended for users under 18 years of age, and we do not authorize users under 18 years of age to use the Services
Electronic Form/Communications. By accessing or using the Sites or Services you consent to having this agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail or by posting notices on the Sites. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
Business/Employer Uses of our Services. If you are using our Sites or Services on behalf of a business or employer, you are accepting these Terms on their behalf, and that business or employer agrees to be bound by these Terms.
3. ACCOUNT AND CONTACT INFORMATION
Access to the Sites and Services. You do not need to register as a member in order to access and browse some sections of the Sites or Services, but you may not be able to access all of the features of the Sites or Services unless you register with us and create an account. If you are browsing the Sites or Services and have not yet registered with us your use of the Sites or Services will still be subject to these Terms.
Account. You can create an account by submitting the information required (“TNM Account”). You’ll need to provide a valid email address and a password which you will be required to submit each time you log in. The email address you provide is your username. You must provide accurate, current and complete information during the registration process and keep your TNM Account up-to-date at all times. If you create your own account, you agree that all registration information you give us will be accurate and current. Any falsification of any information whatsoever may, at TNM’s option, result in immediate suspension or termination of your right to use the Services. If your account has been assigned to you by an administrator, such as your employer or educational institution, different or additional terms may apply and your administrator may be able to access or disable your account. You will timely notify us of any changes to any of the foregoing information. You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Services password, or on which you enable a “Remember Me” or similar functionality (“Activated Device”). Accordingly, you agree that you will be solely responsible for all activities that occur under your Services accounts, including the activities of any individual with whom you share your Services account or an Activated Device. To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account. If you learn of any unauthorized use of your password, please contact us at support@tnmarketing.com.
Security. If you use our Services you are responsible for restricting access to your TNM Account and ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via the Services. Your login ID email address (or other unique identifier needed to create an account) and password, together with any mobile number or other contact information you provide, form your “Account Information.” You understand and agree that you are responsible for maintaining the confidentiality and security of your password and other Account Information, and that you are solely responsible for all activities that occur on or through your TNM Account. You further agree to notify TNM immediately of any unauthorized access to your TNM Account or unauthorized use of your Account Information or any other security breach by emailing us at support@tnmarketing.com.
Contacting You. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address, you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent for that specific purpose. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number as set forth below (including use of automated dialing equipment), text/SMS messages (collectively, “Text Messages”) as set forth below, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable laws or regulations (“Applicable Laws”).
Text Messages. If you subscribe to our Text Message program powered by Bird.com Inc. (“Bird”), the following terms apply. We use Bird, a third-party marketing service provider, as our Text Message platform to manage and deliver Text Message communications. By subscribing to Text Messages from TNM through Bird’s Text Message platform, or by otherwise providing your mobile telephone number, you are providing your express consent to receive recurring automated promotional and personalized marketing Text Messages from TNM via Bird at the telephone number you provided. These Text Messages may include promotional offers, updates, cart reminders, new product alerts, special discounts, and other information related to our Services. Consent to receive Text Messages is not a condition of any purchase. Message frequency may vary depending on your interactions with us. We strive to limit the frequency of Text Messages to ensure they are relevant and not excessive. Text Messages may be sent using an automatic telephone dialing system or other automated technology. Message and data rates may apply. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or Text Message features (as applicable). Please check with your mobile carrier for details on your plan. Neither TNM nor the participating carriers guarantee that Text Messages will be delivered. You can opt-out of receiving Text Messages at any time by responding to any of our Text Messages with any of the following Text Message replies: “STOP,” “END,” “CANCEL,” “UNSUBSCRIBE,” STOPALL or “QUIT.” You will receive a confirmation message once you have been unsubscribed. For support or help, text “HELP” “INFO” or contact us at programdirector@program-director.net. Our Text Message practices comply with the Telephone Consumer Protection Act (“TCPA”) and 10-digit long code (“10DLC”) regulations. This includes obtaining prior express written consent for marketing Text Messages and ensuring all Text Messages are sent in accordance with carrier and industry standards. We also adhere to time-of-day restrictions, prohibiting any telephone solicitation before 11 AM and after 8 PM in the recipient’s time zone. Your information will be handled in accordance with our Privacy Policy, and Bird’s Terms of Service and Privacy Statement.
4. PAYMENT AND CANCELATION RIGHTS
Purchasing Through an App: If you have purchased a subscription or membership though an app (e.g., Google Play store or Apple iTunes Store) the sale is through the applicable app merchant and not through TNM. Therefore, your purchase and auto renewal payments will be subject to the terms of the applicable app merchant and payment and management of the subscription or membership will be administered by them. Sales through app stores are final and may not be subject to refund by the applicable app merchant. As such the terms below regarding purchases directly through us will not apply.
Purchasing our Products or Services Directly From Us. Please refer to the applicable offer for a description of our products available for purchase through the Services (each, a “Product”) and Services such as our series, libraries and collections, or current subscription plans and pricing. Product information, including descriptions, technical information, specifications, and other information related to a product, are provided for your convenience in your selection of Products. The accuracy or completeness of Product information is not guaranteed and is subject to change without notice. Any terms and conditions of any offer disclosed to you when ordering is deemed part of these Terms. All prices posted on the Sites or Services are subject to change without notice. TNM reserves the right to change the fees for its Products and Services and will provide notice of any increase prior to your being charged.
Orders. Any prices displayed on the Sites are quoted in U.S. dollars and are intended to be valid and effective only in the United States. We will add shipping and handling fees and applicable sales/use tax in accordance with our then-current policies. All orders are for personal use only and orders for resale are prohibited without prior written approval. Products displayed on this Sites are available only while supplies last. If your order is canceled by us after you have been charged, we will issue a credit. We try to display the image of the Products available on our Sites, including colors, as accurately as possible but they may vary and the actual colors you see depend upon your device display. The appearance of the Products on the Sites or Services may differ from the physical article depending on your Internet browser or the device or monitor you use. If we have cancelled your order after charging your account, we will issue a credit for the amount charged. The risk of loss and title for all Products purchased by you and shipped by us pass to you upon our delivery to the carrier for shipment. The risk of loss and title for all Products purchased by you and shipped directly by one of our vendors pass from such vendor to you upon such vendor’s delivery to the carrier for shipment. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays or failure in shipment due to incorrect information provided by you, your failure to receive a shipment from a carrier, or other factors outside of our reasonable control.
No Binding Offer. Nothing on the Sites or Services constitutes a binding offer to sell, distribute or give away any Products or Services. In the event the Products and Services are listed at an incorrect price, we have the right to refuse or cancel orders placed at the incorrect price, regardless of whether the order has been confirmed or you have been charged. We reserve the right at any time after receipt of your order to accept or decline such order, or any portion thereof, or to not ship to particular addresses, even after your receipt of an order confirmation or after you have been charged. We also reserve the right at any time to limit the quantities of merchandise, Products and/or Services ordered for you or your household. There may be information on the Sites that contains typographical errors, inaccuracies, or omissions that may relate to Product descriptions, colors, pricing, and availability. We make no representation as to whether information on the Sites or Services is current or the completeness or accuracy of any information on the Sites or Services.
Billing Information. You agree to pay all amounts owed to us for the Services under any terms, policies or other written or electronic agreement we may have in place. We may collect fees though our (PayPal), and/or (WorldPay) When you provide payment information (“Billing Information”) to TNM or its authorized third party payment processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you (“Payment Method”), and you authorize TNM to charge such Payment Method for the full amount of the transaction. When you accept these Terms, you are also agreeing to the applicable payment processor’s terms of service. We may replace our third party payment processor without notice to you. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). Any failure to maintain valid, up-to-date payment information with our third-party payment processor or to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to the Services immediately without notice. Interest will be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. If TNM does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by your Payment Method, we may re-present such un-cleared or rejected payment, or any lessor amount thereof, to your Payment Method Provider. In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys’ and collection agency fees. You agree to reimburse us for all such collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts you owe to us. TNM reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment and to update your information from available third-party sources. In the event TNM cannot charge the Payment Method you provide we reserve the right to terminate your order and invoice you for any unpaid amounts. You must promptly notify TNM if your Payment Method is canceled (e.g., for loss or theft). If you fail to notify us, you remain responsible for any continued charges to the Payment Method you provided.
Cancelation Rights. REGARDLESS OF THE TERMS OF AN OFFER YOU CAN RECEIVE A FULL REFUND FOR ANY MEMBERSHIP IF YOU CONTACT US TO CANCEL WITHIN THE FIRST THIRTY DAYS AFTER YOU ACCEPT THE OFFER.
How to Cancel Auto-Renewal. You can cancel any membership at any time to avoid future charges, or to receive a pro rata refund for an annual membership. You can cancel any future terms or membership and any corresponding charges by going online to your account or contacting customer service at 855-706-3535.
Free or Introductory Promotional Offer. If you enrolled for any of our Services under a special introductory offer (for example, a discounted or free initial trial or free merchandise), you are subject to the terms of the offer you accepted and, unless you cancel within the time frame presented in the offer, the applicable regular fee for the Services you selected will be posted to your Payment Method after the introductory offer or trial period is completed. We reserve the right to limit any introductory or trial offer to one per person/household.
5. YOUR USE OF THE SITES AND SERVICES
Rules of Conduct. In connection with your use of the Sites and Services, you will not (i) use the Sites and Services other than as permitted in these Terms and only for your personal use; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Sites, Content (as hereinafter defined), or Services; (iii) upload or input to the Sites or Services any information which contains software viruses, or any computer code, files or programs designed to interrupt, destroy or limit the functionality of the Sites or Services, any computer software or hardware or telecommunications equipment; (iv) reverse engineer, decompile, reverse assemble, decode, modify or attempt to discover any source code or generate its content or any software or other products or processes accessible through the Sites or Services; (v) use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Sites or Services, monitor traffic on the Sites or Services, obtain or accumulate personal information about other users, or collect or store personal data about other users; (vi) copy or adapt the object code of any software, HTML, JavaScript or other code; (vii) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Sties or Services; (viii) use the Sites or Services in any manner that in TNM’s sole judgment, adversely affects the performance or function of the Sites or Services or interferes with the ability of other users to access or utilize the Sites or Services or undertake any acts not expressly permitted under the Terms; (ix) to the extent permitted by applicable laws, develop a product or service which is competitive with any of TN Marketing LLC’s products or services; (x) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Content; (xi) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Sites or Services, to any third party for any reason; (xii) exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage; (xiii) use software or any other means to harvest information from the Sites or Services; (xiv) harass others or disclose personal information about others that could amount to harassment; (xv) impersonate others or create false accounts; (xvi) Send chain letters, junk mail, ‘spamming’ material or any other form of bulk communication; (xvii) publish, post, upload, store, distribute or disseminate any unlawful, defamatory, infringing, obscene, sexually explicit, harmful, confidential, libelous, hateful, threatening or otherwise illegal material or information, or anything which might constitute a criminal or civil offence; or (xviii) undertake to use the Sites or Services in violation of any Applicable Law or generally accepted practices or guidelines (“Accepted Practices”) or take any action which would cause us to be in violation of any Applicable Law or Acceptable Practices.
Ordering Online. Products available on our Sites or through our Services are subject to availability when you order. Images on our Sites may not accurately capture the actual appearance or quantity of what is available for purchase.
No Binding Offer. Nothing on the Sites or Services constitutes a binding offer to sell, distribute or give away any products or services. We reserve the right at any time after receipt of your order to accept or decline such order, or any portion thereof, or to not ship to particular addresses, even after your receipt of an order confirmation or after you have been charged. Any prices displayed on the Sites or Services are quoted in U.S. dollars and are intended to be valid and effective only in the United States. In the event the products and services are listed at an incorrect price, we have the right to refuse or cancel orders placed at the incorrect price, regardless of whether the order has been confirmed or you have been charged. If your order is canceled by us after you have been charged, we will issue a credit. We reserve the right at any time to limit the quantities of products or services, which you, or your household, seek.
Monitoring. TNM reserves the right to monitor all network traffic to the Sites or Services and anyone using the Sites or Services expressly acknowledges that such monitoring may occur. TNM may block unauthorized attempts or intrusions to upload or change information or cause damage to the Sites or Services in any fashion. You acknowledge that TNM has no general obligation to monitor User Content (as hereinafter defined) nor to actively seek facts or circumstances indicating illegal activity, but has the right to review, disable access to, or to edit any User Content in order to: (i) operate, secure and improve the security of the Sites or Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure compliance with these Terms; (iii) comply with Applicable Laws or the order or requirement of a court, law enforcement, or other administration agency or governmental body; (iv) respond to User Content or user conduct that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms.
Posting of User Content. The Services may contain communication services (“Public Forums”) designed to enable you to post and communicate content, such as reviews, photos, videos, or other information or content (collectively, “User Content”) with other members or visitors to our Sites. You agree that all such User Content you submit, post, upload, embed, display or communicate through the Services will comply with these Terms and with the Rules of Conduct set forth herein. You acknowledge and agree that when you post User Content it is available to the public and that you have no expectation of privacy concerning your User Content. As a result, please exercise caution when posting any personal information in User Content as it may be seen and used by others. TNM has no obligation to monitor User Content but reserves the right to review and remove any User Content at any time, without notice, for any reason and in its sole discretion. TNM specifically disclaims any liability with regard to User Content and any actions resulting from your participation in any such Public Forums. TNM IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION YOU POST ON OR THROUGH THE SITES OR SERVICES.
Objectionable Content. If you encounter something you find objectionable and in violation of these Terms, you can report it to support@tnmarketing.com.
License to User Content. All User Content must comply with these Terms. By submitting, transmitting, or displaying your User Content on or through the Sites or Services, you automatically grant (and you represent and warrant that you have the right to grant) to TNM, its licensees, and their respective successors and assigns, officers, directors, employees, licensees, agents, representatives and other users of the Services, a worldwide, sublicenseable, assignable, perpetual, irrevocable, non-exclusive, royalty-free, unlimited right and license to use, reproduce, publish, distribute, publicly display and perform, reformat, adapt, modify and delete your User Content in connection with the Services (“License”).
Representation of Ownership. You retain copyright and other intellectual property rights with respect to any User Content to the extent that you have such rights under Applicable Laws. By posting or submitting User Content through the Services you represent and warrant that (i) you own such User Content or otherwise have the right to grant us the License set forth in these Terms; (ii) the User Content is accurate and not confidential and the distribution, submission, transmission, posting and use of your User Content on the Services is not in violation of any Applicable Law or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights); and (iii) you are solely responsible for, and TNM will have no liability in connection with, your User Content or any other User Content you access through the Services. Your ownership in your User Content does not confer any rights to the Sites or Services, nor any rights to other User Content or TNM Content stored by or on behalf of TNM.
Privacy. Our Privacy Policy explains how we treat your personal information and protect your privacy when you use our Sites or Services. By using our Sites or Services, you agree that we can collect, use, and share data from you as described in our privacy policy. We are not responsible for any information or Content that you share with others via your use of the Sites or Services. You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Sites or Service.
Feedback/Idea Submissions. TNM does not accept unauthorized idea submissions. Any ideas disclosed to TNM are not confidential and TNM may develop, use and freely disclose or publish similar ideas without compensating you or accounting to you. All comments or materials submitted to us, including testimonials, images, reviews, questions, comments, or suggestions (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis. If you provide TNM with any Feedback, you hereby grant TNM a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under Applicable Laws (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that TNM is not required to make any use of any Feedback that you provide and that we may use your Feedback without obligation to you. You agree that if TNM makes use of your Feedback, TNM is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to TNM to grant TNM and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary, privacy or other personal rights.
Termination. TNM may terminate your access to its Sites or Services immediately or disable any user name, password or other identifier, whether chosen by you or provided by TNM, at any time, without notice or liability, if, in TNM’s sole opinion, you have violated any provision of these Terms. Termination will not limit any of TNM’s rights or remedies at law or in equity. You can stop using our Services at any time, although we’ll be sorry to see you go. We may also stop providing Services to you, or add or create new limits to our Services, at any time.
Third-Party Links. The Sites or Services may contain links to other websites or applications. These websites and applications are not under the control of TNM, and the existence of a link from the Sites or Services does not imply any endorsement of or affiliation with the linked websites or applications. TNM makes no warranties or representations, and disclaims all liability, relating to the accuracy, content, terms of use, privacy policies, products, services, legality, reliability, viewpoint, accuracy, currency, decency, or any other aspect of the linked websites or applications.
Data Collection Policy. No party unaffiliated with TNM may collect or use, or direct, authorize or assist other persons or entities to collect or use any data from a user, or a computer or device operated by a user, while accessing our Sites or Services without our prior express written permission.
Modification to Services. We are constantly changing and improving our Sites, Services, and Products, TNM has the right to modify its Services (and Products and services accessible through its Services), and its Sites at any time in its sole discretion which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionalities. You agree that TNM has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality or other aspects of its Sites or Services. Your only right with respect to any dissatisfaction with any modifications made to its Sites or Services, or any policies or practices of TNM in providing its Services is to cancel your account and/or stop using the Sites or Services.
Injunctive Relief. You expressly acknowledge and agree that there may be no adequate remedy at law for a breach of this Section, that such a breach may irreparably harm TNM and TNM is entitled, without limiting any of its other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach of these Terms.
Third Party Terms. You agree that in addition to these Terms, your use of our mobile app is subject to the usage rules set forth in Apple’s App Store terms of service, if you download our app from the App Store, or in Google’s Play terms of service, if you download the app from Google Play, or any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download our mobile app or otherwise access the Services.
Without limiting the generality of the foregoing, if you downloaded our mobile app from Apple, you and TNM acknowledge and agree to the following: This agreement is concluded between you and TNM only, and not with Apple Inc. (“Apple”). The mobile app downloaded from Apple may only be used on Apple hardware products. TNM, not Apple, is solely responsible for the app and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the app. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TNM’s sole responsibility. TNM, not Apple, is responsible for addressing any claims by you or any third party relating to the app or your possession and/or use of the app, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the app or your possession and use of the app infringes that third party’s intellectual property rights, Apple will have no responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and upon your acceptance of the terms and conditions of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against you as a third-party beneficiary thereof.
Ownership of Content and Marks. The Sites or Services, and all content published on or accessible through the Sites or Services (‘Content”), is owned by TNM, its affiliates or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. TNM owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Sites. All trademarks, logos, service marks, trade names, and trade dress appearing on the Content and Sites (“Marks”), are proprietary to TNM, its affiliates, or its licensors. You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Sites or Services. You may not frame or utilize framing techniques to enclose any Marks or Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing TNM, its affiliates’, or its licensors’ name or Marks without the prior express written consent of TNM. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Sites, Services, Marks or Content, in whole or in part, without the prior written consent or TNM.
Our Limited License to You. You acknowledge and agree that the Sites, Services and Content are provided under license, and not sold, to you and your use. You do not acquire any ownership interest in the Sites, Services or Content under these Terms, or any other rights thereto other than to use the Sites, Services and Content in accordance with the license granted, and subject to all terms, conditions, and restrictions under these Terms. TNM grants you a limited, personal, non-commercial, non-exclusive, revocable, non-assignable, and non-transferable license to access (but not through scraping, spidering, crawling or other technology or software used to access data) and display the Content (excluding any software code) solely for your personal use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose. You may not insert any code or product to manipulate the Content, Sites or Services in any way that affects any user’s experience. TNM and its licensors reserve all rights not expressly granted in and to its respective Sites, Services, Marks and Content. You may not use the Sites, Services, Marks or Content in a manner that constitutes an infringement of our rights or that has not been authorized by us. More specifically, unless explicitly authorized in these Terms you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Sites or Services. You may, however, from time to time, download copies of individual pages from the Sites or Services for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices intact.
About Software in Our Services. You may be required to download software (such as a mobile or desktop app) to use the Sites or Services or certain features of the Sites or Services, and the Sites or Services may enable you to access software running on our (or our vendors’) servers (collectively, “Software”). You agree that we retain the ownership of all rights, title, and interest in and to the Software. Certain Software may update automatically on your device once a new version or feature is available, and you consent to such automatic updating.
TNM gives you a personal, non-commercial, worldwide, royalty-free, non-assignable, and non-exclusive license to use the Software to access the Sites or Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Sites or Services as provided by us, in the manner permitted by these Terms. You may not copy, modify, distribute, sell, or lease any part of our Sites, Services or Software, nor may you reverse engineer or attempt to extract the source code of the Sites, Services or Software, unless laws prohibit those restrictions or you have our written permission.
There may be software programs contained within certain Software that have been licensed to us by third parties. The term “Software” as used herein shall refer to this third-party software except where the term “Software” is used in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in these Terms apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under these Terms.
7. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE (U.S. Only)
Filing a Complaint. If you are a user in the United States, TNM has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (“DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Sites which allegedly infringes another person’s copyright. We are under no obligation to scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Sites. If you believe any materials on any Site infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by regular mail only, (“DMCA Takedown Notice”) that at a minimum includes:
- Identification of the URL of the Site and the material that is claimed 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;
- Your name, address, telephone number and email address (if available);
- A statement that the complaining party has 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;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
Filing a Counter-Notice. If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by regular mail only (“DMCA Counter-Notice”) that at a minimum includes:
- Identification of the copyrighted work (or works) that was removed by TNM and the URL of the Site(s) with the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
- Your name, address, telephone number and email address (if available);
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or the State of Minnesota if your address is outside of the United States;
- A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Takedown Notice to us;
- A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.
When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requesting the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:
TN Marketing, LLC.
2955 Xenium Lane N.
Suite 10
Plymouth, MN 55441
Attention: Jay McNaughton
IF YOU CHOOSE TO USE THE SITES OR SERVICES, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE CONTENT AND INFORMATION OFFERED ON OR THROUGH THE SITES OR SERVICES ARE PROVIDED “AS IS.” OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER TNM NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SITES OR SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SITES OR SERVICES, OR THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THE ABILITY OF THE SITES OR SERVICES TO MEET YOUR NEEDS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, WE ALSO DISCLAIM ALL WARRANTIES OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT: THAT THE PRODUCTS, SITES OR SERVICES, OR ANY OF THEIR FUNCTIONS, WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT ANY PART OF THE SITES OR SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS ,INCLUDING WHETHER UPDATES WILL AUTOMATICALLY DOWNLOAD WHEN INSTALLED OR THAT DEPENDING ON YOUR DEVICE WHETHER UPDATES WILL BE AVAILABLE TO YOU. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, SITES OR SERVICES OR CONTENT CONTAINED THEREIN WITH REGARD TO THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. DUE TO THE NATURE OF THE INTERNET, TNM CANNOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SITES OR SERVICES. TNM MAY RESTRICT THE AVAILABILITY OF THE SITES OR SERVICES OR CERTAIN AREAS OR FEATURES IF NECESSARY, IN VIEW OF CAPACITY LIMITS, THE SECURITY OR INTEGRITY OF ITS SERVERS, OR TO CARRY OUT MAINTENANCE MEASURES THAT ASSIST IN THE PROPER OR IMPROVED FUNCTIONING OF THE SITES OR SERVICES. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITES OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SITES OR SERVICES.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Sites, Services, Products, Content and User Content, and your posting of any User Content remains with you. To the extent not prohibited by law, neither TNM nor any other party involved in creating, producing, or delivering the Sites or Services, Products, Content or User Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Sites, Services, or Products, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not TNM has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed its essential purpose. To the extent not prohibited by law, in no event will TNM’s aggregate liability arising out of or in connection with these Terms and your use of the Sites, Services, or Products, including for any implied warranties, exceed the amounts you have paid to TNM to use the Sites, Services, or Products, in the twelve month period prior to the event giving rise to the liability, or $50USD if no such payments have been made, as applicable (or, if we choose, to supply you the Services or Products again). The limitations of damages set forth above are fundamental elements of the basis of the bargain between TNM and you. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER TYPES OF DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN ALL CASES RELATING TO PROVIDING YOU THE SITE, SERVICES, AND PRODUCTS, TNM (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, DELAYS (INCLUDING, BUT NOT LIMITED TO, DELAYS SHIPPING THE PRODUCTS, OR FAILURES OR DELAYS OF COMMON CARRIERS), PUBLIC HEALTH EMERGENCY, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
You hereby agree to defend, indemnify and hold harmless TNM and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, contractors, and licensors from and against all damages, losses, liabilities, claims, and costs (including, but not limited to, reasonable attorneys’ fees and costs including costs to respond to regulatory inquiries, actions or subpoenas) related to all third party claims, charges, and investigations, resulting from, arising out of, relating to, or caused by User Content you post or submit, or your actual or alleged failure to comply with these Terms, or your use or misuse of the Sites or Services, or any Product you purchase.
11. CALIFORNIA RESIDENTS RIGHTS
If you are a California resident and in connection with the foregoing releases, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction in which such a waiter is valid) which states:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
TNM will provide the Sites and Services with reasonable care and skill but makes no representations that they are appropriate for use from locations outside the United States or compliant with laws outside the United States. If you access the Sites or Services from outside the United States, you are responsible for compliance with local laws in relation to your use of the Sites or Services.
13. CHANGES TO TERMS OF SERVICE
TNM will review and may update these Terms periodically and will note the new effective date if any changes are made. We may modify these Terms or any additional terms that apply to a Service for any reason, for example, to reflect changes to the law or changes to our Services. Any Term changes will apply to existing or accrued Disputes, as explained below in Section 15. If we make material changes to these Terms we may choose to notify you by prominently posting a notice of a new Terms of Service update on the Sites for a period of time in our discretion but we encourage you to review these Terms and make note of the “Effective Date” frequently. You should look at the Terms regularly and the “Effective Date” at the beginning of these Terms. Your continued use of the Sites or Services after we post any changes to the Terms signifies your agreement to any such changes. If you do not agree to these Terms or to the modified terms for a Service, you must discontinue using the Sites or Services.
You may be able to access other third party websites, mobile applications or resources through links accessed on the Sites or Services. Because TNM has no control over such third party websites or mobile applications, you acknowledge and agree TNM is not responsible for the availability, privacy, or security of such external websites, mobile applications or resources accessible from those third parties, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials available from such websites or mobile applications, nor does TNM endorse any such websites, mobile applications or resources, or the products or services assessable on such websites or mobile applications. Accordingly, we encourage you to review the privacy and security policies and terms of service of those third parties so that you understand how they collect, use, share and protect your information.
15. ARBITRATION / DISPUTE RESOLUTION FOR U.S. RESIDENTS
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Minnesota without application of conflict of laws rules, except that these Arbitration provisions shall be governed by the Federal Arbitration Act.
Resolution of Disputes. In the event a dispute arises between you and TNM (“Dispute”), we want to provide you with an efficient, neutral and cost-effective means of resolving the Dispute. For the purposes of this Arbitration Agreement, a Dispute will also include Disputes that arose, accrued, or involve facts occurring before the existence of this or any prior versions of this Agreement as well as any claims that may arise after the termination of this Agreement. To that end, TNM provides in this Section the methods by which all Disputes between us, except as noted below, shall be resolved.
Opt-out of Arbitration: You may elect to exclude yourself from the agreement to arbitrate by sending a letter (an “Opt-Out Notice”) to TN Marketing, LLC, 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441; Attention: General Counsel: Arbitration Opt-Out. The Opt-Out Notice must include (1) your first and last name; (2) your postal mailing address; (3) phone number; (4) email address; (5) your TNM Services customer number found in your account under Membership Details; and (6) a clear statement that you do not wish to resolve disputes with TNM through arbitration. The Opt-Out Notice must be received no later than thirty (30) days after the start of the TNM Service relating to the Dispute. You must submit a separate Opt-Out Notice for each of your Services. All other terms of this these Terms will continue to apply to your purchase and use of the Services, including the requirement to participate in informal dispute resolution, the Class Action Waiver, and the Governing Law sections, herein.
Decline changes to Arbitration Agreement: You may reject revisions or changes to this agreement to arbitrate within thirty (30) calendar days of the changed arbitration terms by sending a letter (“Rejection Notice”) to TN Marketing, LLC, 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441; Attention: General Counsel: Arbitration Decline Changes to arbitration agreement. By sending a Rejection Notice, you indicate your rejection of all revisions or changes made to this agreement to arbitrate made effective on a specified day; you cannot choose to reject only some changes but not others. Your Rejection Notice must be individualized. A Rejection Notice that purports to opt out multiple parties will be invalid as to all such parties. No individual (or their agent or representative) may effectuate an opt out on behalf of other individuals. Your Rejection Notice must include (1) your first and last name; (2) your postal mailing address; (3) phone number; (4) email address; (5) your TNM Services customer number found in your account under Membership Details; (6) the effective date of the revisions or changes you wish to reject; and (7) an unequivocal statement that you decline the changes to the agreement to arbitrate made effective on that date. Should you decide to reject revisions or changes to this agreement to arbitrate, you will remain bound by any prior agreement to arbitrate between you and TNM. Opting out of any changes to the agreement to arbitrate has no effect on any other arbitration agreements that you may enter into in the future with us.
Informal Resolution. You and TNM agree that good-faith, informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and TNM therefore agree that, before either you or TNM demands or attempts to commence arbitration against the other under this Section, we will personally meet and confer, via telephone or videoconference (“Conference”), in a good-faith effort to resolve informally any claim covered by this Section (a “Claim”). A Conference shall be individualized such that a separate Conference must be held for each Claim; multiple individuals initiating Claims cannot participate in the same Conference, unless mutually agreed to by the parties. If you are represented by counsel, your counsel may participate in the Conference, but you shall also fully participate in the Conference. The party initiating the Claim must give notice to the other party in writing of their intent to initiate a Conference, which shall occur within 60 days after the non-initiating party receives such notice, unless an extension is mutually agreed upon by the parties. To notify TNM that you intend to initiate a Conference, send a letter to us at TN Marketing, LLC, 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441 or email us at programdirector@program-director.net, providing your name, telephone number associated with your TNM account (if any), the email address associated with your TNM account, and a description of your Claim. TNM may then send you an Informal Dispute Resolution Conference Request form, which you must fill out completely to initiate the Conference. TNM will send you notice of a Claim based on the most recent contact information that you provide us. During the period during which the non-initiating party receives a Dispute notice and the date of the Conference, the parties shall be free to attempt to resolve the Claim at issue. Engaging in a Dispute Conference must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
Mediation. If a Dispute has not been resolved by the informal resolution process described above within 90 days from the initiation of the Claim, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided herein below, in accordance with the then current JAMS Rules and Procedures. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. Nothing in this provision, however, prevents the submission of individual mediations together to be considered by a single JAMS Mediator, when multiple Disputes are submitted by the same counsel, or in the event of a threatened or anticipated Mass Filing, as defined and detailed below. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. None of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.
Limitation of Legal Remedies; Arbitration. Any Dispute that remains unresolved after mediation will be resolved through binding arbitration, except that either of us may take a Dispute to small claims court so long as it is not removed or appealed to a court of general jurisdiction. YOU AND TNM EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES (INCLUDING WHERE APPLICABLE ITS MASS ARBITRATION RULES AND PROCEDURES), ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO TNM’S INTELLECTUAL PROPERTY RIGHTS AND STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award are final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. YOU AND TNM EACH VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US.
Class Action Waiver. YOU AND TNM EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, or acting as a private attorney general (“Class Action Waiver”). Nothing in this provision, however, prevents the submission of individual claims together in batches to be heard together by a single arbitrator in the event of Mass Filings, as defined and detailed below.
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (“Notice”). All Notices to TNM must be sent to the following address: TN Marketing, LLC, 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this Section. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-day cure period, you or TNM may commence an arbitration proceeding. Unless otherwise agreed to by you and TNM in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the Dispute. This Section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and TNM agree that this Section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of Minnesota, and for any non-frivolous claim that does not exceed $5,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at https://www.jamsadr.com/.
To the extent that this dispute resolution Section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any Dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
If the party initiating the arbitration is represented by an attorney, the arbitration demand must also be signed by both the claimant and the attorney. By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry, that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 against any represented party and their counsel. In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.
Exceptions to Arbitration. This agreement to arbitrate shall not require arbitration of the following types of claims brought by either you or TNM: (i) small claims court actions, if the requirements of the court are met; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.
Batch/Mass Arbitrations. To increase the efficiency of administration and resolution of arbitrations, you and TNM agree that if there are twenty five (25) or more similar arbitration demands brought against either party by or with the assistance of the same law firm, group of law firms, or organizations within a sixty (60) day period (“Mass Filing”), the parties shall proceed as follows:
- The parties shall select ten (10) individual arbitration demands (five (5) per side) for arbitration to proceed as part of a first stage, which will be filed with and proceed to be handled in individual arbitrations (“First Stage Requests”). Each First Stage Request will be assigned to a different, single, arbitrator. Only those ten (10) arbitration demands shall be filed with the arbitration provider, and no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If any of the ten First Stage Requests are withdrawn before the conclusion of its individual arbitration, another demand for arbitration will be chosen by the arbitration provider to replace the withdrawn First Stage Request. Upon completion of this first stage, all Parties will initiate a global mediation session for all of the demands that are not part of the First Stage Requests (“First StageRemaining Requests”). The global mediation will act as a stay of the arbitration proceedings.
- If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within thirty (30) calendar days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall proceed as follows: (A) the parties shall cooperate to group the arbitration demands into randomized batches of 100 demands per batch (except that if fewer than 100 arbitration demands remain, those demands shall be grouped into a final batch of less than 100 demands); (B) claimants’ counsel shall organize and present the batched demands to JAMS in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filings and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch.
All parties agree that “similar arbitration demands” are demands that arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. You and TNM agree that JAMS’ Mass Arbitration Procedures and Guidelines apply in all Mass Filings, including any related fee schedule. JAMS’ Mass Arbitration Procedures and Guidelines can be obtained from JAMS or by visiting its website (https://www.jamsadr.com/mass-arbitration-procedures). You agree to cooperate in good faith with TNM and JAMS to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this Section. Notwithstanding any provision in this Section to the contrary, batch arbitrations shall take place in Plymouth, Minnesota or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone. If your claim is part of a Mass Filing, any applicable limitations periods (including statutes of limitations), and any filing fee deadlines, shall be tolled for your Dispute from the time that your Dispute is first submitted to JAMS until your Dispute is selected for resolution.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
16. DISPUTE RESOLUTION NON-U.S. RESIDENTS
In the event of any dispute you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to us at tnmforeigndispute@tnmarketing.com or to TN Marketing, LLC, 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441, United States. For a period of 60 days from the date of receipt of notice from the other party, TNM and you will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or TNM to resolve the dispute on terms either you or TNM, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their claims in court or another complaint process.
If your country of residence or establishment is outside the U.S., these Terms will be governed by and interpreted in accordance with English law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. This choice of law does not impact your rights as a consumer according to the consumer protection laws of your country of residence. If you are a consumer, you may be able to bring judicial proceedings against us arising from or in connection with these Terms in a court within a jurisdiction according to the laws of your country of residence or the English courts. if you are acting as a business, and not as a consumer, you agree to submit to the exclusive jurisdiction of the English courts.
If you have any comments, queries or complaints about these Terms or our Services, please contact us at support@tnmarketing.com.
17. NO RIGHTS OF THIRD PARTIES
You agree that, except as otherwise expressly provided in these Terms, there are not third-party beneficiaries to these Terms.
These Terms, and policies incorporated herein, are the entire agreement between you and TNM. They supersede any and all prior or contemporaneous agreements between you and TNM relating to your use of the Sites or Services. If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination including Proprietary Rights, Disclaimer of Warranties, Limitation of Liability, Your Legal Liability, Arbitration/Dispute Resolution For U.S. Residents, Dispute Resolution Non-U.S. Residents, No Rights of Third Parties, and Miscellaneous shall survive any such expiration or termination. If any provision of these Terms is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply. You may not assign your rights under your TNM Account or this agreement to any third party without TNM’ prior written permission. TNM may assign these Terms, in whole or in part, at any time. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of TNM to partially or fully exercise any rights or the waiver of TNM to enforce any breach of these Terms by you, shall not prevent a subsequent exercise of such right by TNM or be deemed a waiver by TNM of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of TNM under these Terms and any other applicable agreement between you and TNM shall be cumulative, and the exercise of any such right or remedy shall not limit TNM’ right to exercise any other right or remedy. In the event of any conflict or inconsistency between these Terms and any other terms or conditions applicable to the Services, the additional terms will control for that conflict, and you specifically waive any right to challenge or dispute such determination.
Please email us at support@tnmarketing.com or write to us at: TN Marketing, LLC., 2955 Xenium Lane N., Suite 10, Plymouth, MN 55441 if you have any questions about these Terms.
When contacting us, please include your full name, address, phone number, and email address, and indicate the specific nature of your request or inquiry.