TERMS OF USE agreement
 
BY USING THIS SITE OR PURCHASING ANY PRODUCTS ON THIS SITE, YOU AGREE TO THESE TERMS OF USE AND PRIVACY POLICY. PLEASE READ CAREFULLY.
 
These TERMS OF USE constitute an agreement (this “Agreement”) by and between Positive PollyAnna, LLC, a limited liability company organized under the laws of the state of Ohio and having a place of business located at P.O.  Box 1804, Chesterfield, VA 23832 (“Provider”) and you (“User”).
 
     1.Definitions.

(a) “Account” refers to access-controlled data including billing information and personally identifiable information of a User; and data indicating Service plans, features, and/or content selected by the User through Provider’s customer portal at the time of enrollment,and as modified from time to time.
(b) “Authorized Representative” refers to an officer of the Provider, or the Provider’s duly authorized agent; and, the User’s attorney-in-fact or court-appointed guardian.
(c) “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
(d) “User Data” refers to data in electronic form input or collected through the Service by or from User.
(e) “Service” refers to Provider’s self-help Internet-based educational  service including all downloadable materials, website tools and content, and social media features.
 
     2.Service & Payment.

Provider agrees to provide the Service to User pursuant to this Agreement and its current policies and procedures as may be amended from time to time.At this time the Service is provided free of charge; however, Provider may require fees for the Service after providing User with notice and the option to purchase said services.
 
     3.Service Level Agreement. In the event of any Service failure whatsoever including,        without limitation, hardware or software malfunctions, service unavailability, data            loss including User data loss, or User’s loss of access to the Service for any reason            the Provider is not liable to User for any damages whatsoever including actual,                consequential, indirect, incidental, special, or punitive of any kind regardless of the          cause of such failure, including force majeure, and even if such failure is due to                Provider’s negligence. In the event of a failure of Service, Provider will make                      reasonable efforts to resolve the failure, but makes no representation, promise, or            warranty as to the speed with which a failure shall be resolved or the nature or                extent of services that are restored, if any. Provider further makes no representation,        promise, or warranty as to the percentage of system up-time that a User may                  expect. User has no right to demand or require restoration of service, return or                restoration of User’s data, or any element of the Service provided prior to a failure of      Service. The Service is provided as-is and without warranty of any kind.
 
     4.Materials, Software, & IP.

(a) Materials. User recognizes and agrees that: 
(i) the Materials are the property of Provider and are protected by copyright, trademark, and other intellectual property laws;
(ii) User does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use the Materials as necessary for use of the Service as contemplated under the terms of this Agreement;
(iii) Users are permitted to make copies of the Materials for Allowed Personal Use only, where Allowed Personal Use means that which is necessary for use of the Service as contemplated under the terms of this Agreement;
(iv) Users may not provide the Materials or copies thereof to any other person, natural or juristic, regardless of whether the other person is also a User of the Service, and may not knowingly allow or enable another to gain access to the Materials, or to the Service or any component or feature thereof;
(v)Users may not record and/or store streaming media provided through the Service even for personal use;
(vi) Users may not create derivative works based upon the Materials or any component or aspect thereof;
(vii) Users may not reproduce, deface, alter, or commercially use the Provider’s trademarks or confusingly similar renditions thereof; and
(viii) all rights held by the User in and to the Materials are extinguished upon termination of the User’s account regardless of the reason for termination, and all Materials and copies thereof must be destroyed upon termination, or at the sole option of the Provider the Materials may be returned to the Provider.
(b) Intellectual Property in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant User any intellectual property rights in or to the Service or any of its components or Materials. Nothing contained in this Agreement shall be construed to grant a license to use the Service, the Materials, or any part or component thereof in any way except that which is within the literal scope of allowed use as set forth herein.
 
     5.Online Policies.

(a) Authorized Use Policy (AUP). User agrees to comply with the AUP as set forth in Appendix A. In the event of User’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate User’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against User or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.
(b) Privacy Policy. The Privacy Policy set forth in Appendix B applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees.
 
     6.Each Party’s Warranties.

(a) User’s Identity. User warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and 
(ii) that it is an individual 18 years or older. Breach of this term is grounds for immediately terminating the User’s access to the Service without a refund. 
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
(c) Disclaimers. Except for the express warranties specified in this section six (6), THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND USER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or material interruption.
 
     7.Limitation of Liability. IN NO EVENT: (a) WILL PROVIDER BE LIABLE FOR HARM OF            ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT; AND (b) WILL                    PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR      PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO                  LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN      CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF                    PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN                    QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF              USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the            application of the provisions of this Section 7, Provider’s liability will be limited to the      greatest extent permissible by law.
 
     8.Data Management.

(a) Access, Use, & Legal Compulsion. Provider will make reasonable efforts to maintain User’s data in secret; however, no guaranty of secrecy is made. Provider may disclose User Data as required by applicable law or by proper legal or governmental authority. Provider will give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense.
(b) User’s Rights. User possesses and retains all right, title, and interest in and to User Data, and Provider’s use and possession thereof is solely as User’s agent.
(c) Retention & Deletion. Provider will retain all User Data until erased pursuant to the Data Policy set forth in Appendix C.
 
     9.Term & Termination.

(a) Term. This Agreement will continue for the longer of one month following the Effective Date (a “Term”) or until the next regular monthly renewal date as may be determined by the Provider. Thereafter, this Agreement will renew for subsequent terms (“Terms”) of one month, unless either party notifies the other of its intent not to renew ten (10) or more days before the beginning of the next Term. 
(b) Termination for Cause. The Provider may terminate this Agreement for material breach without notice, unless the User first cures such breach.
(c) Effects of Termination. The following provisions will survive termination of this Agreement: (i) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (ii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
 
10.Miscellaneous.

(a) Notices. Provider may send notices pursuant to this Agreement to User’s contact points listed in User’s Account, and such notices will be deemed received ten (10) days after they are sent. User may send notices pursuant to this Agreement to P.O. Box 1804, Chesterfield, VA 23832, and such notices will be deemed received ten (10) days after they are sent.
(b) Amendment. Provider may amend this Agreement, including the Data Policy,the AUP or Privacy Policy, from time to time by posting an amended version at its website and sending User written notice thereof with a link to an Internet page where the User may accept or reject the amendment. Rejecting the amendment shall result in termination of the User’s account and blocking the User’s access to the Service. Amendments will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). User’s continued use of the Service following the effective date of an amendment will confirm User’s consent thereto. This Agreement may not be amended in any other way except as described in this paragraph.
(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. The User may not assign this Agreement or any of its rights or obligations here under for any reason.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Ohio, without reference to the principles of conflicts of law. The parties consent to the personal jurisdiction of the federal and state courts of the State of Ohio.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(i) Certain Notices. Provider hereby notifies User that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
(j) Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of its appendices the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.
(k) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
 
Appendix A. Authorized Use Policy
Effective Date: [December 01, 2015]

     1.General Provisions
Provider requires that all customers and other users of Provider’s Service (the “Service”) conduct themselves with respect for others. In particular, please observe the following rules in your use of the Service:
  • Abusive Behavior:Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group
  • Privacy: Do not violate the privacy rights of any person. Do not collect or disclose any personal address, social security number, or other personally identifiable information. Do not cooperate in or facilitate identity theft.
  • Intellectual Property: Do not infringe upon the copyrights, trademark rights, trade secret rights, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder.
  • Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide the Service. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial of service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other users of the Service.
  • Spam:Do not send bulk unsolicited e-mails (“Spam”) or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way. Do not violate the CAN-Spam Act of 2003.
  • Fraud:Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way.
  • Violations of Law: Do not violate any law.
     1.Consequences of Violation

Violation of this Acceptable Use Policy (this “AUP”) may lead to suspension or termination of the user’s account or legal action. In addition, the user may be required to pay for the costs of investigation and remedial action related to AUP violations. Provider reserves the right to take any other remedial action it sees fit.
 
     1.Reporting Unauthorized Use

Provider requests that anyone with information about a violation of this AUP report it via an e-mail to the following address:

Positive PollyAnna, LLC,
c/o Dominic A. Frisina,
Frisina, LLC
4301 Darrow Rd. Suite 1450
Stow, Ohio 44224

Please provide the date and time (with time zone) of the violation and any identifying information regarding the violator, including e-mail or IP (internet protocol) address if available, as well as details of the violation.  
     1.Revision of AUP
Provider may change this AUP at any time by posting a new version on this policy to its website and sending the user written notice thereof. The new version will become effective thirty (30) days after the date of such notice.
 
 
Appendix B. Privacy Policy

Effective Date: [December 01, 2015]
 


We collect certain information through our website, located at http://www.pollyannabrown.com (our “Website”). This page (this “Privacy Policy”) lays out our policies and procedures surrounding the collection and handling of any such information that identifies an individual user or that could be used to contact or locate him or her (“Personally Identifiable Information” or “PII”).

This Privacy Policy applies only our Website. It does not apply to any third party site or service linked to our Website or recommended or referred by our Website or by our staff. And it does not apply to any other website or online service operated by our company, or to any of our offline activities.
 
     1.PII We Collect

We collect the following Personally Identifiable Information from users who buy our products and services: name, e-mail address, telephone number, address, and credit card number, and other billing information.

We also use “cookies” to collect certain information from all users, including non-subscribing website visitors. A cookie is a string of data our system sends to your computer and then uses to identify your computer when you return to our Website. Cookies give us usage data, like how often you visit, where you go at the site, and what you do.
 

     1.Our Use of PII

We use your Personally Identifiable Information to create your account, to communicate with you about your current subscription, and to offer you additional products and services. We also use that information to the extent necessary to enforce our Website TERMS OF USE and to prevent imminent harm to persons or property.

We use cookies so that our Website can remember you and provide you with the information you are most likely to need. For instance, when you return to our Website, cookies identify you and prompt the site to provide your username (not your password), so you can sign in more quickly. Finally, we use information gained through cookies to compile statistical information about use of our Website, such as the time users spend at the site and the pages they visit most often.
 

     1.Protection of PII

We employ security measures that are reasonable and customary for the kind of data that we handle and store. Unfortunately, even with these measures, we cannot guarantee the security of PII. By using our Website, you acknowledge and agree that we make no such guarantee, and that you use our Website at your own risk.
 
     
     1.Accessing and Correcting Your PII

You can access and change any Personally Identifiable Information we store through your “My Account” page.
 
     
     1.Amendment of this Privacy Policy

We may change this Privacy Policy at any time by posting a new version on this page or on a successor page. The new version will become effective thirty (30) days after the date that it is posted, which will be listed at the top of the page as the new Effective Date.
 
 
 



Appendix C. Data Policy
Effective Date: [December 01, 2015]
 
  1. Access, Use, & Legal Compulsion. Provider may access or use data in electronic form        collected through the Services from User, or accessible directly from User,                        (collectively, “User Data”) as necessary to facilitate the provision of Service. Provider      shall not sell User Data. Notwithstanding, Provider may disclose User Data as                    required by applicable law or by proper legal or governmental authority. Provider will      give User prompt notice of any such legal or governmental demand and reasonably        cooperate with User in any effort to seek a protective order or otherwise to contest        such required disclosure, at User’s expense.
  2.  User’s Rights. User possesses and retains all right, title, and interest in and to User            Data, and Provider’s use and possession thereof is solely as User’s agent. User may          access and copy any User Data in Provider’s possession at any time using tools                provided to User as part of the Service.
  3.  Retention & Deletion. Provider may retain any User Data in its possession until                  Erased(as defined below) pursuant to this Subsection (3), or until 90 days                        following termination or expiration of the User’s subscription to the Service. After            termination or expiration of the User’s subscription to the Service, the Provider may        Erase the User Data within thirty (30) days. As used herein, “Erase” and “Erasure”            refer to the destruction of data so that no copy of the data remains or can be                  accessed or restored in any way.
  4.  Leaks. Provider will promptly notify User of any actual or potential exposure or 
       misappropriation of User Data (any “Leak”) that comes to Provider’s attention. 
       Provider will cooperate with User and with law enforcement authorities in 
       investigating any such Leak, at Provider’s expense. Provider will likewise cooperate 
       with User and with law enforcement agencies in any effort to notify injured or 
       potentially injured parties, and such cooperation will be at Provider’s expense, 
       except to the extent that the Leak was caused by User. The remedies and 
       obligations set forth in this Subsection are in addition to any others User may have.
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