Terms of Service

TERMS OF SERVICE
Effective 11/01/2023
Healthspan Coaching LLC (the "Company"), which owns and operates www.barzilaiconsulting.com (“Website”) provides health coaching and consulting (under the brand “Healthspan Coaching”) and life coaching and consulting (under the brand “Oultive Coaching). These services can be ordered by customers through one or more of the Company’s web pages located at the www.barzilaiconsulting.com domain and all other web pages owned and operated by the Company that link to or refer to these terms of service (collectively, the "Website"), or through any other order forms the Company might make available on one or more occasions (“Order Forms”).
These terms of service are an agreement between the Company and each person, whether a human or an organization, who orders one or more services through the Website or an Order Form (“you”). Among other rights and obligations of the parties, these terms of service govern your access to, your use of, and the Company’s provision of any services you order (“Our Relationship”). THESE TERMS OF SERVICE WILL BE EFFECTIVE AS A BINDING AGREEMENT BETWEEN YOU AND THE COMPANY FOR THE DURATION OF OUR RELATIONSHIP.
PLEASE CAREFULLY READ THESE TERMS OF SERVICE BEFORE SUBMITTING AN ORDER. UNDER THESE TERMS OF SERVICE, YOU ARE GIVING UP IMPORTANT RIGHTS, INCLUDING CHOICE OF LAW, A BINDING AGREEMENT TO ARBITRATE DISPUTES THAT ACTS AS A WAIVER OF JURY TRIALS, A REQUIREMENT TO PROCEED WITH CLAIMS ON AN INDIVIDUAL (AS OPPOSED TO CLASS ACTION) BASIS, AND LIMITATIONS ON CERTAIN DAMAGES.
1. OFFER AND ACCEPTANCE.
1.1 Your Order is an Offer.
(a) By submitting an order for one or more services through the Website or an Order Form, you offer to purchase those services from the Company subject to these terms of service and the terms of the order.
(b) Your order will become effective as an offer when it is submitted by you and received by the Company at its office in the state of Massachusetts. You may cancel the order any time before the Company accepts it. To cancel your order, you must give the Company written notice that you want to cancel the order.
1.2 The Company’s Response to Your Order. The Company is not required to accept your order. Our Relationship will begin on the day the Company accepts your offer ("Effective Date") by either (a) notifying you (other than by an automatic order confirmation) that the Company has accepted your order, or (b) performing under these terms of service with respect to your order for a period of more than 5 days, with that acceptance being deemed to occur the day the Company first began such performance.
1.3 Refund Upon Cancellation or Rejection of Your Order. If you make one or more payments to the Company with respect to an order and either you cancel that order or the Company rejects that order, the Company will refund you the full amount of those payments. IF THE COMPANY ACCEPTS YOUR ORDER, YOU WILL NOT BE ENTITLED TO ANY REFUND.
1.4 Invoices, Statement of Work, Term Sheet, and Other Documents Agreed to By the Parties. These terms of service will also apply to each invoice, statement of work, term sheet, or other document that meets each of following conditions: (a) the document does not qualify as an “order” as described above; (b) the document is agreed to by you, whether in writing or by your actions, such as paying the invoice; and (c) the document states it is subject to, incorporates, or contains an agreement to these terms of service. The purpose of the other sections of these terms of service, the terms “order” and “your order” will be deemed to refer to that document.
2. DURATION OF AGREEMENT
2.1 Start of Agreement. These terms of service will become effective as an agreement between you and the Company when Our Relationship begins (as provided under “The Company’s Response to Your Order”).
2.2 End of Agreement. These terms of service will cease to be effective as an agreement between you and Company when Our Relationship ends. Unless Our Relationship ends early under “Ending Our Relationship Early” or under “Material Breach”, Our Relationship with respect to an Ordered Service will end when the Company has fulfilled its obligations to provide you that Ordered Service.
3. CHANGES TO THESE TERMS OF SERVICE
The Company may amend these terms of service on one or more occasions. All amendments will be effective immediately when the Company publishes on the Website the amended terms of service and notifies you of the amended terms by email or other permitted form of notice. The amendments will become effective regardless of whether you acknowledge receipt of such notice. The amendments will apply to Our Relationship on the day they become effective, but any amendment to “Dispute Resolution” will not apply to any Dispute (defined below) existing before you were notified of that amendment.
4. THE SERVICES
4.1 Delivery of Services. If the Company accepts your order, the Company shall provide you each service that is marked, selected, described, or otherwise included in that order (each an “Ordered Service”) and the Company shall provide each Ordered Service in accordance with that service’s descriptions and specifications stated in your order (including any such descriptions or specifications included in your order by reference). With respect to each Ordered Service, the Company will be deemed to provide you that Ordered Service by –
(a) providing you with reasonable access to all meetings, calls, sessions, retreats, and other events that (1) your order states the Company will provide you access to as part of that Ordered Service or (2) the Company provides its clients access to in the ordinary course of business as part of that Ordered Service, except the Company will not be required to provide you such access to the extent your order states that the Order Service excludes or otherwise does not include such access (collectively, “Events”);
(b) ensuring one or more coaches, consultants, advisors, instructors, concierges, analysts, assistants, customer support specialists, or other service providers employed or contracted by the Company to provide services on behalf of the Company ("Team Members") timely host, appear for, and participate in scheduled Events in accordance with your order for that Ordered Service;
(c) providing you reasonable access to all Facebook groups, Slack channels, Zoom meetings, message boards, live streams, and other interactive forums that your order states the Company provides as part of that Ordered Service or that the Company provides to its clients as part of that Ordered Service in the ordinary course of business (collectively, “Forums”);
(d) providing you reasonable access to all documents, audio and video recordings, social media posts, sample forms, webpages, and other digital content that your order states are provided by the Company, or that the Company provides in the ordinary course of business to its clients, as part of that Ordered Service (“Content”); and
(e) providing you substantially all other deliverables, if any, in accordance with your order for that Ordered Service.
4.2 Programs are Subject to Change. The Company may, on one or more occasions, change the Content, Events, Forums, and other aspects of any Program in response to customer feedback, available technology, and other factors. Each time the Company determines to make such a change, the Company will replace the item that was changed with an item of equal or greater value.
5. YOUR DUTIES
5.1 Use of Services
You may use each Ordered Service only in accordance with that service’s respective purpose stated in your order (each a “Purpose”). If no purpose is stated in the order for a particular Ordered Service, the Purpose of that Ordered Service will be as follows: “To help clients discover and take meaningful steps toward fulfilling their personal life and wellness goals.”
Subject to the terms in your order, the access to Events, Forums, and Content that the Company grants you under these terms of service is limited to –
(a) only you, except if you are an organization, then also to your primary contact you designate in writing to the Company (“Primary Contact”) and your other employees, contractors, officers, managers, and other workers (collectively, "Support Team") that you designate in writing]], and
(b) the duration of the Ordered Service stated in your order.
When Our Relationship ends with respect to an Ordered Service, you will lose access to the Events, Forums, and Content the Company provides as part of that Ordered Service.
5.2 Promptly Paying
(a) The price for each Ordered Service is the amount stated in your shopping cart at time of check out, unless stated otherwise in the order. Payment is due at the time stated in the order.
(b) You shall promptly pay the Company all amounts owed to the Company in accordance with the terms of the order, including the price stated in your order for each Ordered Service (subject to applicable discounts), any accrued interest or late fees, and any licensing fee owed.
(c) When Our Relationship ends, you remain obligated to promptly pay the Company until the full price of each Ordered Service has been paid, except in the following circumstances: (1) Our Relationship ended early and you either are entitled to a full or partial refund under these Terms of Service or would have been entitled to such a refund if you had earlier paid the full price for that Ordered Service; or (2) the Ordered Service is one that the Company bills hourly under these Terms of Service. If one of those two exceptions applies to an Ordered Service, you will be obligated to pay for that Ordered Service on a pro rata basis proportional to the extent that service was provided to you before Our Relationship ended compared to the full service that was promised. Except as stated otherwise in these Terms of Service or your Order, your payment obligations under these terms of service do not depend on Our Relationship remaining in effect, or you maintaining access to Events, Forums, or Content. For example, if Our Relationship ends early after a material breach by you, or if the Company removes you from one or more Events or Forums for violating the Company’s Community Standards (defined in “Complying with Community Standards”), you remain responsible to pay the Company for the full price of each Ordered Service as if Our Relationship did not end early or you were never removed.
(d) Your failure to pay the Company within 30 days of the applicable pay-by date will be a material breach of these terms of service.
(e) Any act or failure to act of yours will be a material breach of these terms of service if it causes or is intended to cause a bank, credit card issuer, payment processor, or similar financial service to rescind, reverse, withhold, or charge back one or more payments that were charged in accordance with these terms of service by the Company or a payment processor acting on the Company's behalf.
(f) The Company will regularly invoice you for any Ordered Services that are billed on an hourly basis. Each invoice will state the number of billable hours worked, the nature of the work performed, any billable expenses or other fees being charged to you, and total amount you owe the Company for the period covered by the invoice. If you in good faith dispute an amount the Company bills in the invoice, you shall timely pay the Company the correct amount, and promptly notify the Company of the reasons for disputing the amount billed. The parties shall thereafter promptly negotiate in good faith regarding the amount in dispute.
5.3 No Sharing Access.
You must not share with anyone your log-in information for accessing the Events, Forums, or Content, and shall not otherwise grant anyone access to the Events, Forums, or Content except as follows:
(a) you may share your log-in information for accessing the Events and Forums with your Primary Contact (if you are an organization) and 2 additional members of your Support Team); and
(b) you may share your log-in information for accessing Content with one or more members of your Support Team only to the extent necessary for you to use the Ordered Services in accordance with the Purpose of the Ordered Service, and only if you first instruct those members of your Support Team that the Content can only be used for assisting you and no one else].
(c) A violation of “No Sharing Access” will be a material breach of these terms of service.
5.5 No Making Your Own Recordings. You shall not make any audio recording, video recording, picture, or image or other recording of any Event without the Company’s prior written consent. Any recordings of Events shall be exclusively made and provided by or on behalf of the Company.
5.6 Maintaining Up-to-date Contact and Billing Information. If your contact information or billing information changes at any time during Our Relationship, you must provide the updated information to the Company within 14 days of any such change.
6. ADDITIONAL PAYMENT TERMS
6.1 Payment Authorization. If an Ordered Service is eligible at checkout for payment by credit or debit card, PayPal, or other form of electronic payment ("Electronic Payment"), and you chose to pay for that Ordered Service by Electronic Payment, you hereby authorize the Company to charge the credit card or other form of Electronic Payment that you provide to the Company or its payment processor. The Company and its payment processor (a) may keep the card or other Electronic Payment information on file and (b) may, without prior notification, automatically charge you in accordance with the schedule stated in this order or otherwise at checkout unless the date or amount changes, in which case you will receive notice 10 days in advance of the change. You must provide a back-up form of payment if the first form of Electronic Payment does not process or declines. Your refusal to authorize any form of payment or your dispute of an Electronic Payment properly processed under these terms of service will be a material breach of the Terms of Service.
6.2 Discounts and Special Promotions. Your order for an Ordered Service will be subject, at your election, to the terms of each discount or special promotion stated in a document issued by the Company that is in effect by its own terms as of the day you submit your order for the Ordered Services.
7. RESCHEDULING; FAILURE TO SHOW
7.1 Rescheduling Events by the Company. The Company may, on one or more occasions, reschedule any Event by providing you with a notice of the new date and time at least 24 hours before the Event was otherwise scheduled to occur, or as soon as practical if the Company is affected by an emergency.
7.2 Rescheduling Events by Your Request. You may, on one or more occasions, request that the Company reschedule a one-on-one Event by providing the Company and the impacted Team Member with a notice containing your request at least 24 hours before the Event was otherwise scheduled to occur, or as soon as practical if you are affected by an emergency. Within a reasonable time of receiving such a request from you, the Company will coordinate with you to reschedule the one-on-one event.
7.3 Failure to Attend. If you fail to attend a one-on-one Event within 10 minutes of the scheduled time and did not request to reschedule in accordance with this section, the Company will not be obligated to reschedule that Event and will be deemed to have fulfilled its obligations for that Event.
7.4 Group Events. Group Events, such as Events that can be joined by more than one of the Company's customers or the public in general, will be held at the times determined by the Company. The Company will not replace or reschedule any group Event that you fail to attend.
8. ENDING OUR RELATIONSHIP EARLY
8.1 Cooling Off Period. Either party may end Our Relationship early by giving notice to the other party no later than [3] days after the Effective Date, except Our Relationship will not end under this section “Cooling Off Period” if any of the following occurs:
(a) the Company began to provide you a one-on-one Service before receiving your notice to end Our Relationship; or
(b) the Company determines you accessed, downloaded, viewed, or otherwise used more than a trivial portion of the Content].
8.2 Early End Due to Bankruptcy or Liquidation. Our Relationship will end early at 11:59 P.M. (the Company's time) on the day that either party becomes the subject of a petition in bankruptcy or any other proceeding relating to (1) that party's insolvency, receivership, or liquidation, or (2) assignment for the benefit of that party's creditors.

9. NO AUTOMATIC RENEWAL
Unless the terms of the order say otherwise, Our Relationship with respect to an Ordered Service will not automatically renew. If you submit an order to renew Our Relationship, the order might be subject to different terms of service and the availability of the Company’s services existing at the time of that order.
10. MATERIAL BREACH
10.1 Cure Period. If a party commits a material breach of these terms of service, the nonbreaching party may give notice to the breaching party providing no less than 14 consecutive days to cure the breach (“Cure Period”). The Cure Period will begin when the breaching party receives that notice. Our Relationship will end if the breaching party fails to cure the breach before 11:59 pm (in the breaching party’s time zone) on the last day of the Cure Period. The nonbreaching party’s notice will not cause this Our Relationship to end if the breaching party cures the material breach during the Cure Period.
10.2 Material Breach of Community Standards. The Company may end Our Relationship immediately upon notice to you if the Company determines that you committed a material breach of the Community Standards. Conduct will be deemed a material breach of the Community Standards if it, for example, (1) involves harassment or unlawful discrimination; (2) threatens, encourages, or is likely to cause injury; (3) is hateful, demeaning, or disparaging; (4) is likely to cause emotional distress, anxiety, or fear; (5) is disruptive or offensive; (6) is fraudulent, deceptive, or intentionally misleading; (7) involves the promotion of goods or services of your business or someone else you work for or are affiliated with, unless the you obtained beforehand the Company’s written approval; or (8) is otherwise unlawful or violates the legal rights of others.
11. INTELLECTUAL PROPERTY
11.1 Ownership. You acknowledge that the Company owns or obtained the rights to use all copyrights, trademarks, trade secrets, and know-how in the Content (collectively, "Intellectual Property"). The Company does not transfer ownership of any Intellectual Property to you as part of Our Relationship or these terms of service.
11.2 License to Use Content. The following license applies to the extent each Ordered Service includes access to or provision of Content. In exchange for your payment of the applicable licensing fee required in the order for each Ordered Service, the Company hereby grants you a non-exclusive, nontransferable, non-sublicensable license to use each Order Service’s Content as permitted under “Permitted Use” for the duration stated in License.
11.3 Duration of License. Each License will become effective on the Effective Date, and will cease to be effective when Our Relationship ends or the License is revoked under “Revocation of License”, whichever occurs first.
11.4 Permitted Use. You are permitted under the License to use all Content included in each Ordered Service as follows: to watch, play, read, listen to the Content as reasonably necessary for you to receive, use and benefit from an Ordered Service in accordance with that service’s respective Purpose.
11.5 Non-permitted Use. You shall not use the Content or other Intellectual Property except as permitted in “Permitted Use.” For example, you shall not –
(a) Download, store (other than as your browser will automatically store in your cache), publicly perform, broadcast, display, distribute, sell, give away, offer to sell, or offer to give away any Content, Intellectual Property, or derivative work made using any Content or Intellectual Property;
(b) brand or mark a product or service of anyone (except of the Company) with any Intellectual Property;
(c) brand, mark, or identify any Content with one or more trademarks of anyone other than the Company; or
(d) otherwise use any Content inconsistently with the Purpose of the Ordered Services.
You acknowledge that these terms of service prohibit you from using the Company’s Content or Intellectual Property to create new or different content to be marketed, sold, given away, or otherwise distributed to other persons, and creating such content would be a material breach of these Terms of Service.

12. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
12.1 Definition of Confidential Information. The parties acknowledge that, as part of Our Relationship, you might disclose Confidential Information to the Company (including its Team Members) on one or more occasions. In these terms of service, “Confidential Information” means the following information to the extent you have shared that information with the Company only on a one-on-one basis in connection with receiving or using the Ordered Services: your goals, life history, self-assessments, and any other personal information regarding your life or health. Confidential Information does not include information that is already public when you disclose it to the Company or becomes public, at no fault of the Company, after you disclose it to the Company. Any information will be deemed public if you share it (a) in Forums, or (b) during Events attended by the public or one or more other customers of the Company.
12.2 Reasonable Precautions by the Company. The Company shall, during Our Relationship and for the [3] years after Our Relationship ends, take precautions to prevent disclosure or use of Confidential Information other than as authorized in these terms of service. Those precautions will be at least as effective as a reasonable person in the position of the Company. Subject to those precautions, the Company may share Confidential Information with any of its Team Members, employees, contractors, owners, officers, managers, agents, representatives, professional advisors, legal counsel, or wholly owned subsidiaries (collectively, "Affiliates").
12.3 Important Caveats.
(a) Although the Company is agreeing to take reasonable precautions with respect to your Confidential Information, you acknowledge (1) that the Company is doing so as a courtesy and not because of any legal mandate; and (2) that Your Confidential Information will not be covered by the Health Insurance Portability and Accountability Act (“HIPAA”). The Company will not be obligated to comply with HIPAA unless it specifically agrees in writing to do so.
(b) You acknowledge that state law might mandate that one or more of the Company’s Team Members to report to law enforcement or other government authorities information with respect to possible child abuse, domestic abuse, or other serious crimes. If the Team Member is required by law to report such information, the Team Member may do so without notifying you or obtaining your consent.
12.4 Definition of Confidential Information. The parties acknowledge that, as part of Our Relationship, each party (including Team Members) will disclose Confidential Information to the other party on one or more occasions. In these terms of service, “Confidential Information” means a disclosing party’s customer lists, business plans, goals, trade secrets, product ideas, proprietary methods, and any nonpublic information that the disclosing party shares with the receiving party that the disclosing party marks as “confidential” or “not for sharing,” or with a similar designation. Confidential Information does not include information that is already public when the disclosing party discloses it to the receiving party or becomes public, at no fault of the receiving party, after the disclosing party discloses it to the receiving party.
12.5 Reasonable Precautions by the Receiving Party. Each receiving party shall, as long as the Confidential Information is not public, take precautions to prevent disclosure or use of Confidential Information other than as authorized in these terms of service. Those precautions will be at least as effective as a reasonable person in the position of the Company. Subject to those precautions, the Company may share Confidential Information with any of its Team Members, employees, contractors, owners, officers, managers, agents, representatives, professional advisors, legal counsel, or wholly owned subsidiaries (collectively, "Affiliates").
12.6 Indemnification of the Receiving Party if Disclosure is Compelled. To the extent permitted by law, the receiving party shall promptly notify the disclosing party if it receives a subpoena, court order, or similar mandate compelling disclosure of the Confidential Information, and shall reasonably cooperate with the disclosing party in opposing such disclosure. The disclosing party shall indemnify the receiving party and its Affiliates against all Indemnifiable Losses arising out of any investigation, negotiation, or proceeding in which any such indemnitee opposes disclosure of the disclosing party’s Confidential Information (collectively, "Proceeding"). In these terms of service, "Indemnifiable Losses" means any reasonable out-of-pocket expense incurred in opposing disclosure of Confidential Information in a Proceeding, including court filing fees, court costs, arbitration fees, witness fees, attorneys’ fees, and other professionals’ fees and disbursements. The provisions of “Indemnification of the Receiving Party if Disclosure is Compelled.” will remain in effect after Our Relationship ends.
13. MEDIA RELEASE
13.1 This Release Is Important to the Company. You acknowledge that the Company records many of its Events for replays, creating course content, promotions, quality assurance, and other purposes, and that, as a result, you and your participation at Events might be recorded by the Company. Your agreement to the terms of this section is important to the Company, and without that agreement the Company would not be willing to provide you access to Events or other services that might be recorded. [You also acknowledge that the Company might, on one or more occasions, use one or more testimonials by you about the Company, the Ordered Services, or your progress, and that the Company’s use of any such testimonial has the potential to give you valuable visibility in front of the Company’s audiences. You are not obligated to provide any testimonial.]
13.2 Your Consent. In exchange for the Company’s agreement to provide you each Ordered Service, YOU HEREBY IRREVOCABLY GRANT THE COMPANY THE RIGHT TO USE PERPETUALLY, WORLDWIDE, ROYALTY-FREE THE FOLLOWING ATTRIBUTES AND STATEMENTS:
[(a) your legal name or nickname, image, likeness, [title, trade name, business logo], and voice (in any combination) together with one or more of your positive statements about the Company or the Ordered Services that you share (1) on the Forums, (2) during Events, or (3) directly to the Company (including to any Team Members) (collectively, “Testimonial”); and]
(b)] your legal name or nick name, image, likeness, voice, title, trade name, business logo, and statements to the extent contained in any recordings (including videos, audio recordings, pictures, and transcripts) of Events attended by the public or one or more customers of the Company (collectively, "Appearances").
13.3 Use of Your Attributes and Statements. The Company may without your inspection or approval] use each Testimonial and Appearance, in whole or in part, in all media now or later known for [(a) advertising, marketing, publicity, or training purposes or (b) use as part of any current or future product or service of the Company. The Company will be under no obligation to actually use any Testimonial or Appearance, and may use the Testimonial and Appearance either with or without your name.
13.4 Waiver of Right to Sue. TO THE EXTENT THE COMPANY USES EACH TESTIMONIAL OR APPEARANCE, YOU SHALL NOT, AND YOU HEREBY WAIVE THE RIGHT TO, BRING ANY CLAIM OR LAWSUIT AGAINST THE COMPANY ARISING OUT OF THAT USE.
14. CIRCUMSTANCES BEYOND ONE'S CONTROL
14.1 In these terms of service, “Circumstance Beyond Control” means, as to a party, (a) an event or circumstance (whether foreseeable or unforeseeable) that was not caused by that party, or (b) any consequence of such an event or circumstance.
14.2 If a Circumstance Beyond Control prevents a party from complying with one or more obligations under these terms of service, that inability to comply will not be a breach of these terms of service if that party (a) uses reasonable efforts to perform those obligations; (b) promptly notifies the other party of the occurrence of that Circumstances Beyond Control, its effect on performance, and how long the noncomplying party expects it to last; (c) updates that information as reasonably necessary; (d) promptly provides the other party, if that other party requests, evidence reasonably confirming the existence of the Circumstance Beyond Control; and (e) uses reasonable efforts to resume its performance under these terms of service.
15. RELATIONSHIP OF THE PARTIES.
15.1 The parties intend that their relationship under these terms of service is that of independent contractor and client.
16. NOTICES
16.1 Notice requirements. A notice or other communication under these terms of service will be effective if it is in writing, properly sent to the receiving party, and received by that party.
16.2 Sending notice. A notice will be deemed properly sent if it is addressed or transmitted to the receiving party as follows:
(a) if you are the receiving party, to the phone number, email address, mailing address, or other means of contact submitted with your order for one or more Ordered Services;
(b) to any other phone number, email address, mailing address, or other means of contact that the receiving party states in a notice may be used for sending notice to that receiving party.
16.3 Receipt of notice.
(a) A notice will be deemed to have been received as follows:
Method of Sending Time when notice is deemed received
email, text message, or other electronic communication when the receiving party acknowledges by a notice (other than by read receipt or an automatic reply) that the party received the initial notice, but the initial sending party does not need to acknowledge the receiving party’s acknowledgment
mail delivery 4 days after notice is sent by regular mail, or 2 days after notice is sent by certified mail
email sent using RPost and the sending party received for that email an RPost “Registered Receipt” stating a delivery status as high as at least “delivered to mail server” when the intended recipient’s authorized email-collecting agent accepts that email
If the intended receiving party rejects or otherwise refuses to accept the notice, or if it cannot be delivered because of a change in email address, phone number, and other electronic means of communicating with the recipient for which no notice was given, then notice will be deemed to have been received upon that rejection, refusal, or inability to deliver.
17. DISCLAIMERS
17.1 No professional advice. You acknowledge the Company will provide the Ordered Services only in the role as a coach, mentor, or guide in helping clients devise and implement positive, sustainable practices, policies, procedures, and strategies and lifestyle changes. The Company will not act as a medical doctor, licensed physician, nurse, registered dietician or registered dietitian nutritionist, psychologist, clinical social worker, licensed marriage and family therapist, lawyer, certified public accountant, certified financial advisor or other professional licensed by the State of Massachusetts. or any other state (collectively, "Professionals"). You acknowledge that any advice given by the Company will not take the place of (but rather is intended to be complimentary to) the medical, nutritional, or psychological" or “health-oriented, legal, accounting, tax, financial, or relational advice and other services provided by those licensed Professionals. You acknowledge that the Ordered Services are only for informational purposes, and that you must seek out the services of qualified Professionals to obtain diagnosis, prevention, treatment, or cure of any disease, pain, deformity, injury, or physical or mental condition, professional advice, professional judgments"], and other professional services by licensed Professionals that take into account and are tailored to your unique circumstances. You are responsible to seek the advice, treatment, counseling, and other services from Professionals before acting upon any Ordered Services, and to discuss any dietary changes or potential use of nutritional supplements with a medical doctor or other qualified Professional, and to not discontinue any prescription medications without first consulting such a Professional and to retain and regularly consult with Professionals.
17.2 No Privilege Protection. You acknowledge that: (a) neither these terms of service nor the providing of the Ordered Services will create or imply physician-patient, therapist-patient, an attorney-client, accountant-client, or financial advisor-client, or other professional-client relationship between you and the Company; and (b) none of the communications between the Company and you will be protected by physician-patient, therapist-patient, attorney-client, accountant-client, or other privilege, and thus disclosure of the communications could be compelled by law.
17.3 No Promised Outcome. WHILE THE COMPANY WILL EXERCISE REASONABLE EFFORTS TO PROVIDE THE ORDERED SERVICES, THE COMPANY MAKES NO GUARANTEES, PROMISES, OR PROJECTIONS ABOUT ANY LEVEL OF INCOME OR OTHER OUTCOME FROM THE ORDERED SERVICES.
17.4 Accuracy of Information. WHILE THE COMPANY WILL USE REASONABLE EFFORTS TO FURNISH ACCURATE AND UP-TO-DATE INFORMATION, THE COMPANY DOES NOT PROMISE THAT ANY INFORMATION IT PROVIDES IN CONNECTION WITH THE ORDERED SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
18. LIMITATIONS ON REMEDIES AND LIABILITY
18.1 Foreseeable Damages Only.
(a) NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES THAT THE BREACHING PARTY COULD NOT REASONABLY HAVE FORESEEN AT THE TIME OF THE BREACH.
(b) EACH PARTY STATES THAT EXCEPT AS DESCRIBED IN THESE TERMS OF SERVICE (INCLUDING EACH ACCEPTED ORDER), THAT PARTY DOES NOT KNOW OF ANY SPECIAL CIRCUMSTANCES APPLICABLE TO IT THAT WOULD MAKE REASONABLY FORESEEABLE ANY DAMAGES FOR BREACH OF THESE TERMS OF SERVICE THAT OTHERWISE WOULD NOT HAVE BEEN REASONABLY FORESEEABLE. EACH PARTY ACKNOWLEDGES THAT ACCORDINGLY IT HAS NO BASIS FOR BRINGING UNDER THESE TERMS OF SERVICE A CLAIM AGAINST THE OTHER PARTY FOR DAMAGES ARISING FROM SPECIAL CIRCUMSTANCES, EXCEPT FOR THOSE DESCRIBED IN THESE TERMS OF SERVICE (INCLUDING EACH ACCEPTED ORDER), AND HEREBY WAIVES ANY RIGHT TO BRING A CLAIM AGAINST THE OTHER PARTY FOR DAMAGES ARISING FROM ANY SUCH SPECIAL CIRCUMSTANCES.
(c) NEITHER PARTY WILL BE LIABLE FOR PUNITIVE DAMAGES UNDER ANY THEORY OF LIABILITY, EXCEPT FOR AN INTENTIONAL VIOLATION OF ONE OR MORE COPYRIGHTS OR TRADEMARKS.
18.2 Liability Limited to Amount You Paid. THE COMPANY'S TOTAL LIABILITY ARISING OUT OF THESE TERMS OF SERVICE, THE CONFIDENTIAL INFORMATIONAND THE ORDERED SERVICES WILL NOT EXCEED $5000 OR THE TOTAL AMOUNT YOU PAID TO THE COMPANY UNDER THESE TERMS OF SERVICE, WHICHEVER IS GREATER.
18.3 Applicable Law Exception. NO PROVISION IN THESE TERMS OF SERVICE WILL EXCLUDE OR LIMIT THE COMPANY'S LIABILITY BEYOND THE EXTENT PERMITTED BY APPLICABLE LAW.
19. DISPUTE RESOLUTION
19.1 Negotiation and Mediation. If any dispute arising out of the Ordered Services, the Content, any order you submit for Ordered Services, Confidential Information, or these terms of service ("Dispute") cannot be resolved through negotiation, the parties shall discuss in good faith the use of mediation before resorting to arbitration, litigation, or any other type of adversarial proceeding.
19.2 Arbitration. Subject to the other provisions of this section, as the exclusive means of initiating adversarial proceedings to resolve any Dispute, a party to a Dispute (including you, the Company, or any person to whom you or the Company transfers any discretion, right, remedy, or obligation may demand that the Dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and each party hereby consents to any such Dispute being so resolved. The arbitration will occur on an individual basis before a panel of one arbitrator sitting in Middlesex County, Massachusetts. Arbitration hearings will occur through videoconferencing, unless you and the Company agree otherwise in writing. Judgment on any award rendered in any such arbitration will be binding and may be entered in any court having jurisdiction.
19.3 Small-Claims Exceptions.
(a) Either party may file a breach-of-contract claim arising out of these terms of service in small-claims court rather than submitting that claim to binding arbitration. Any small-claims court proceeding for such a breach-of-contract claim must be initiated in a court located in Middlesex County, Massachusetts.
(b) Either party may file a copyright claim arising out of these terms of service, the Content, the Intellectual Property, or the Confidential Information with the Copyright Claims Board of the U.S. Copyright Office rather than submitting that claim to binding arbitration.
(c) Any proceeding brought under this provision titled “Small-Claims Exceptions” will be limited solely to the individual dispute between you and the Company.
20. WEBSITE
In addition to these terms of service, your use of the Website is governed by the Company’s Website [[terms of use (available at https://barzilaiconsulting.com/terms-of-use)] and the Company’s privacy policy (available at https://barzilaiconsulting.com/privacy-policy) posted on the Website (collectively, "Website Terms"), including any later amendments to the Website Terms.
21. ACTIONS BY PLATFORMS
Your participation in the Company’s Forums including any Facebook groups, Slack channels, and Zoom meetings or other social media and bulletin board platforms is subject to the terms set forth by these platforms, and any other the company that provides a platform on which the Company hosts or maintains a Forum (each a "Platform"). You acknowledge that the Company is not affiliated with the Platforms, but is only a user like you. The Company will not be liable to you for any losses, expenses or other harm resulting from any action or inaction taken by any Platform.
22. MISCELLANEOUS
22.1 Governing Law. Massachusetts law governs these terms of service and all adversarial proceedings arising out of these terms of service, any order you submit for Ordered Services, the Confidential Information,]the Content, or the Ordered Services.
22.2 Assignment. Each party shall not, without the other party‘s prior written consent, transfer to any other person (including a human or organization) any discretion granted under, right to satisfy a condition under, remedy under, or obligation imposed under these terms of service. Any attempted transfer violating this provision titled “Assignment” will be deemed void.
22.3 Waiver. To be effective, any waiver of satisfaction of a condition or nonperformance of an obligation under these terms of service must be in writing and signed by an authorized representative of the party granting the waiver. A party’s waiver on one occasion will not operate as a waiver of satisfaction of a condition or nonperformance of an obligation on other occasions.
22.4 Severability. If a Dispute arises and the tribunal holds one or more provisions of these terms of service are unenforceable, the parties want the tribunal to order as follows:
(a) that each such unenforceable provision will be modified to the minimal extent necessary to make it enforceable or, if that modification is not permitted by law, each such provision will be disregarded;
(b) that any such unenforceable provision will remain in effect as written in any circumstances except those in which the provision is held to be unenforceable; and
(c) that the remainder of these terms of service will remain in effect as written by the parties.
22.5 Fixing Unenforceable Terms. To the extent a tribunal determines that a provision in these terms of service is unenforceable, the parties shall negotiate in good faith to modify these terms of service in accordance with the original intent of the parties so that the transactions contemplated in these terms of service will be accomplished as originally contemplated to the greatest extent possible.
22.6 Interpretation. The parties want this agreement to be interpreted in accordance with A Manual of Style for Contract Drafting, Fourth Edition.
22.7 Section Headings. If a Dispute arises, the parties want the tribunal to disregard section headings in these terms of service when interpreting these terms of service and not use those headings to determine the intent of the parties.
22.8 Entire Agreement. The following documents comprise part of these terms of service:
• your orders for one or more Ordered Services that the Company accepts,
• the Community Standards, and
• the Website Terms.
These terms of service (including the documents listed above) constitute the entire understanding between the parties with respect to the Ordered Services, the Content, Confidential Information, the Website, and other subject matter of these terms of service.
22.9 Resolving Inconsistencies. The parties want any inconsistency between the documents comprising these terms of service to be resolved as follows, with the terms of a document listed below superseding the inconsistent terms of each document listed after it: (a) each order for one or more Ordered Services; (b) this document titled “Terms of Service”; (c) the website Terms of Use; and (d) the Community Standards. (For example, the terms in each of your orders supersede inconsistent terms in all other documents comprising these terms of service, and the Community Standards are superseded to the extent its terms are inconsistent with the terms of any of the other documents comprising these terms of service.)