The following terms of service (these “Terms of Service”), govern your access to and use of the Sharpen studio, applications, and platform (together, being the “Platform”), including any content, functionality, and services offered on or through the Platform (“Services”) and any other media form, channel, mobile site, or mobile application related, linked, or otherwise connected to the Platform provided by Resiliency Technologies, Inc., a Delaware corporation with an address at 1209 Orange Street, Wilmington, Delaware 19801 (“Resiliency,” “we,” “us,” or “our”). “You,” or “user” means you as a user of the Platform.
Please read the Terms of Service carefully before you start using the Platform. By using the Platform, opening an account, or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree, on behalf of yourself or on behalf of your employer or any other entity (if applicable), to be bound and abide by these Terms of Service. You further acknowledge, you have read and understood our Privacy Policy. If you do not want to agree to these Terms of Service or the Privacy Policy, you must not access or use the Platform.

This Platform is offered and available to users who are at least 18 years of age and of legal age to form a binding contract. By using the Platform, you represent and warrant that you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.

If you sign up for our Services on behalf of an organization, (i) you represent and warrant that you are an authorized representative of that entity with authority to bind that entity to these Terms of Service; (ii) your use of the Services will bind that entity to these Terms of Service; and (iii) “you” and “your” in these Terms of Service will refer to both you and that entity.

 

1.    Intellectual Property Rights
Unless otherwise indicated, the Platform is the property of Resiliency and all source code, databases, functionality, software, Platform designs, audio, video, text, photographs, interactive features, software, metrics, and graphics of any nature and regardless of format (herein, collectively, or individually, the “Materials”) and the trademarks, service marks, and logos used in connection with the Platform (the “Marks”) are owned and controlled by Resiliency and are protected by copyright and trademark laws and any other applicable intellectual property law or regulation of the United States, foreign jurisdictions, and international conventions. The Materials and Marks are provided “As-Is.” Except as expressly provided herein, no part of the Platform and no Materials may be copied, reproduced, aggregated, republished, uploaded, posted, displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Resiliency’s express prior written permission. Resiliency reserves all rights in the Platform, Materials, and Marks.

 

2.    Your Use of the Platform
You retain ownership rights in the content you upload to, or develop on, the Platform, including, without limitation, videos, audio, graphics, photos, text, branding, designs, drawings, patterns, models, compositions, architectures, protocols, formulae, algorithms, processes, programs, methods, technology, devices, works of authorship, data, databases, data collections, and other materials (collectively, “Content”), and you are responsible for all Content that you provide to the Platform. You warrant that any and all materials and Content uploaded to the Platform or obtained by Resiliency at your direction are owned by you, or you are authorized to use such Content, and the Content does not infringe on or misappropriate any third party’s rights, including, but not limited to, all intellectual property rights and any right of publicity. Resiliency is under no obligation to host or serve Content. If you see any Content you believe does not comply with this Agreement, including content that violates the law, please report it to us. To protect your account on the Platform, keep your password confidential. You should not reuse your Platform account password on third-party applications. Our Privacy Policy explains how we treat your personal data and protect your privacy when you use the Platform. 

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Permissions and Restrictions

You may access and use the Platform as made available to you, as long as you comply with this Agreement and applicable law. The following restrictions apply to your use of the Platform. You are not allowed to:

1.    Make any unauthorized use of the Platform;

2.    Circumvent, disable, or otherwise interfere with security-related features on the Platform;

3.    Trick, defraud, or mislead Resiliency or other users;

4.    Interfere with, disrupt, or create an undue burden on the Platform or Resiliency’s networks or servers;

5.    Use the Platform in an effort to compete with Resiliency;

6.    Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Platform;

7.    Bypass any measures on the Platform designed to prevent or restrict access to the Platform or any portion thereof;

8.    Harass, annoy, intimidate, or threaten any of Resiliency’s employees, independent contractors, or agents providing services through the Platform;

9.    Delete the copyright or other rights notice from any Materials;

10.    Copy or adapt the Platform’s software;

11.    Upload or transmit, or attempt to do so, viruses, Trojan horses, or other material including anything that interferes with any party’s use of the Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operations, or maintenance of the Platform;

12.    Upload or transmit, or attempt to do so, any material that acts as a passive or active information collection or transmission mechanism;

13.    Collect or harvest any information that might identify a person;

14.    Disparage, tarnish, or otherwise harm Resiliency;

15.    Access the Platform using any automated means (such as robots, botnets or scrapers) except with Resiliency’s prior written permission;

16.    Use the Platform to distribute unsolicited promotional or commercial content or other unwanted or solicitations;

17.    Access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Platform, Materials, or any Content except: (a) as expressly authorized by the Platform; or (b) with prior written permission from Resiliency and, if applicable, the respective rights holders; or

18.    Use the Platform in a manner inconsistent with any applicable laws, statutes or regulations.

 

3.     Grant of License
You hereby grant to Resiliency the perpetual, royalty-free, unlimited, non-exclusive right and license display, host, copy, store and use the Content both on and off the Platform. You further grant to Resiliency a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Platform and Resiliency’s (and its successors’ and Affiliates’) business, including commercially, and for the purpose of promoting and distributing part or all of the Platform.

 

4.    Third-Party Fonts
You assume all responsibility and will indemnify Resiliency for any consequences as a result of a failure by You to purchase one or more licenses for any third-party fonts that are not owned by Resiliency and require a commercial license for You to legally reproduce, distribute, or publicly display Content you upload to the Platform.

 

5.    User Representations
By using the Platform, You represent and warrant that:
1.    You have provided true, accurate, complete, and updated information to create Your account on the Platform;

2.    You have the legal capacity and agree to comply with these Terms of Service;

3.    You are not a minor in the jurisdiction of your domicile;

4.    You will not access the Platform through automated or non-human means;

5.    You will not use the Platform for any illegal or unauthorized purpose; and

6.    Your use of the Platform will not violate any applicable law or regulation.
6.    Management and Oversight
Resiliency reserves the right to monitor the Platform for violations of these Terms of Service and to take appropriate legal action in response to a violation of the Terms of Service or any applicable law, statute, or regulation. Resiliency further reserves the right to restrict or deny access to the Platform or disable Your use of the Platform. Such decision will be in the sole discretion of Resiliency, without notice or liability to You. All decisions regarding the management of the Platform will be at the sole discretion of Resiliency and will be designed to protect Resiliency’s rights and property.

 

7.    Privacy Policy.
By using the Platform, You agree to be bound and abide by Resiliency’s Privacy Policy.

 

8.    Age Restrictions.
Resiliency’s Services are offered and available to users who are at least 18 years of age and of legal age to form a binding contract. If You are under the age of 18, you must ask your parent or guardian for permission to use the Platform or access Resiliency’s Services. Resiliency does not knowingly accept or solicit information from individuals under the age of 18. Minors under 13 are not permitted to use the Platform. In accordance with the United States’ Children’s Online Privacy Protection Act, upon the receipt of actual knowledge that an individual under the age of 13 has provided personally identifiable information to Resiliency without parental consent, Resiliency will delete that information as soon as reasonably practical.

 

9. Termination.
In the event You wish to terminate Your relationship with Resiliency, You will provide Resiliency with written notice of Your intent to terminate (“Your Notice”). Upon receipt of Your Notice by Resiliency, Resiliency will cease providing you with access to the Platform, and any contractual or transactional relationship between the parties will be of no further force or effect and will be considered void and terminated.
Without limiting any other provisions, Resiliency reserves the right to deny access to and use of the Platform. Such denial will be at Resiliency’s sole discretion and without notice or liability to You. Denial of access may be to any person and for any reason or for no reason, including without limitation for breach of any representation warranty or covenant contained in these Terms of Service or the Privacy Policy or any applicable law, statute, or regulation. Upon termination or suspension, You are thereafter prohibited from registering and creating a new account under any name or on behalf of any third party. Resiliency reserves the right to take appropriate legal actions against You for breach of this Section.
Any attempt to defraud Resiliency through deceptive tactics such as using different names, emails, IPs, or payment methods will result in immediate termination of service and blacklisting with our service.

 

10. Modification.
Resiliency reserves the right to change, alter, modify, amend, or remove anything or any content on the Platform for any reason at its sole discretion. Resiliency reserves the right to modify or discontinue all or part of the Platform without notice and without liability to You.
Resiliency reserves the right, at its sole discretion, to modify or replace these Terms of Service by posting updated terms on our Platform. Your continued use of the Platform after any such changes constitutes your acceptance of the new Terms of Service. Please review the Platform periodically for changes. If you do not agree to any or all posted changes, please do not continue to access or use the Platform.

 

11. Connection Interruptions.
Resiliency does not guarantee or warrant the Platform will be available and accessible at all times. Issues with hardware, software, or other items may result in interruption delays or errors beyond Resiliency’s control. You agree that Resiliency will not be liable to You for any loss, damage, or inconvenience caused by Your inability to access or use the Platform during any interruption in the connection or service.

 

12. Jurisdiction.
The Platform is hosted in the United States of America. Access to the Platform from the EU, Asia, or other region of the world may result in the applicability of laws, statutes, or regulations differing from those of the United States which govern personal data collection, use, or disclosure. Your continued use of the Platform and transfer of data to the United States constitutes express consent of You to the transfer and processing of data in the United States.

 

13. Governing Law.
These Terms of Service will be governed by and construed in accordance with the laws of the State of Texas without regard to conflict of law principles.

 

14.  Litigation.
Any legal action of whatever nature will be brought in the state or federal courts in the state of Texas. The parties hereto consent to personal jurisdiction in said courts and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction.

 

15. Disclaimer.
The Platform is provided on an as-is, as-available basis. You agree that Your use of the Platform and Services are at Your sole risk. Resiliency disclaims all warranties, express or implied, in connection with the Platform and Your use thereof, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Resiliency makes no warranties or representations about the accuracy or completeness of the Platform or any content thereon or content of any Platforms linked to the Platform, and Resiliency assumes no liability for any errors, mistakes, or inaccuracies of content and materials, personal injury, or property damage, of any nature whatsoever, any unauthorized access to or use of Resiliency’s secure servers and/or any personal information and/or financial information stored therein, any interruption or cessation of transmission to or from the site, any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the Platform by any third party and/or any errors or omissions in content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available through the Platform. Resiliency does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party either through the Platform, a hyperlinked site, or any site or mobile application featured in any advertising.

 

16. Limitations of Liability and Indemnification.
IN NO EVENT WILL RESILIENCY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE, OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
You agree to indemnify, hold harmless, and pay the defense costs of Resiliency and its subsidiaries, affiliates and all respective officers, members, agents, partners, employees and independent contractors from and against any loss, damage, liability, claim, or demand including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use or misuse of the Platform; (2) breach of these Terms of Service; (3) any breach of Your representations and warranties set forth herein; and (4) Your violation—either directly or performed by Resiliency at the direction of You—of the rights of any third party, including but not limited to intellectual property rights.

 

17. User Data.
You are solely responsible for all data transmitted to or that relates to any activity You undertake using the Platform, including account information and Content. Resiliency will have no liability to You for any loss or corruption of any such data, and You hereby waive any right of action against Resiliency from any such loss or corruption.

 

18. Added Users.
You can add users to Your account (“Added User”). The creator of Your account is the account administrator (“Administrator”). In addition, the Administrator may designate others as Administrators. Administrators can add, modify, or remove Users from Your account as well as manage their permissions and access to Content. If the Administrator adds an Added User to Your Account, You represent and warrant that the Administrator and You have obtained all necessary consents from that person to be added. If You enable account management services which allows employees, independent contractors, agents, or representatives to manage Your account and Added Users, You represent and warrant that all such persons are authorized to do so on behalf of You.
If you are an Added User, the Administrator may control access to, delete, or re-assign ownership to the Content you upload or create on the account you access for You. Resiliency is not responsible for any actions taken by Administrators or Added Users that are unauthorized by You. It is the responsibility of Added Users to not upload or create Content on Your account if the Added User does not want to potentially transfer ownership or disclose such Content to others on Your account.

 

19. Electronic communications, transactions, and signatures.
You hereby consent to receive electronic communications from Resiliency and You agree that all agreements, notices, disclosures, and other communications sent via email or through the Platform satisfy any legal requirement that such communication be in writing. You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by Resiliency or through the Platform. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records or to payments or the granting of credits by any means other than electronic.

 

20. Third-Party Links.
The Platform may contain links to third-party websites and online services that are not owned or controlled by Resiliency. Resiliency has no control over, and assumes no responsibility for, such websites and online services. Be aware when you leave the Platform—we suggest you read the terms and privacy policy of each third-party website and online service that you visit.
21. Intellectual Property Claims (Copyright (DMCA), Trademark Infringement)

 

Copyright Infringement Claims
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any content on the Platform violates Your copyright or a related exclusive right, You should follow the process below. Resiliency looks into reported violations and removes or disables content shown to be violating third party rights.
In order to allow us to review your report promptly and effectively, a copyright infringement notice (“Notice”) should include the following:
•    identification of Your copyrighted work and what is protected under the copyright(s) that You are referring to;

•    Your copyright certificate(s)/designation(s) and the type, e.g., registered or unregistered;

•    proof of Your copyright ownership, such as the registration number or a copy of the registration certificate;

•    a short description of how our user(s) allegedly infringe(s) Your copyright(s);

•    clear reference to the materials You allege are infringing and which you are requesting to be removed, for example, the url, a link to the deliverable provided to a user, etc.;

•    Your complete name, address, email address, and telephone number;

•    A statement that You have 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 made under penalty of perjury that the information provided in the notice is accurate and that You are the copyright owner or the owner of an exclusive right that is being infringed, or are authorized to make the complaint on behalf of the copyright owner or the owner of an exclusive right that is being infringed; and

•    Your electronic or physical signature.
You can send your Notice to our designated DMCA / Copyright Claims Agent at:
Resiliency Technologies, Inc.
Attn: Tim Farrell
tfarrell@sharpenminds.com
 
Note that we will provide the user who is allegedly infringing Your copyright with information about the Notice and allow them to respond. In cases where sufficient proof of infringement is provided, we may remove or suspend the reported materials prior to receiving the user’s response. In cases where the allegedly infringing user provides us with a proper counter-notification indicating that it is permitted to post the allegedly infringing material, we may notify You and then replace the removed or disabled material. In all such cases, we will act in accordance with 17 U.S.C § 512 and other applicable laws.
If You fail to comply with all of the requirements of § 512(c)(3) of the DMCA, Your DMCA Notice may not be legally effective.
Please be aware that if You knowingly materially misrepresent that material or activity on the Platform is infringing Your copyright, You may be held liable for damages (including costs and attorneys’ fees) under § 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
Counter-Notification Procedures for Copyright Claims
If You believe that material You posted on the site was removed or access to it was disabled by mistake or misidentification, You may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our DMCA / Copyright Claims agent (identified above). Pursuant to the DMCA, the Counter-Notice must include substantially the following:
•    Your physical or electronic signature;

•    an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;

•    adequate information by which we can contact You (including your name, postal address, telephone number and, if available, email address); 

•    a statement under penalty of perjury by You that You have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

•    a statement that You will consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located (or if you reside outside the United States for any judicial district in which the Platform may be found) and that You will accept service from the person (or an agent of that person) who provided the Platform with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against You within ten business days of receiving the copy of your Counter-Notice. Please be aware that if You knowingly materially misrepresent that material or activity on the Platform was removed or disabled by mistake or misidentification, You may be held liable for damages (including costs and attorneys’ fees) under § 512(f) of the DMCA.
Trademark Infringement Claims
We take claims of copyright infringement seriously. We will respond to notices of alleged trademark infringement that comply with applicable law. If You believe any of the uploaded content violates Your trademark, You should follow the process below.
In order to allow us to review your report promptly and effectively, a trademark infringement notice (“TM Notice”) should include the following:
•    identification of Your trademark and the goods/services for which You claim trademark rights; 

•    Your trademark registration certificate and a printout from the pertinent country’s trademark office records showing current status and title of the registration (alternatively, a statement that Your mark is unregistered, together with a court ruling confirming your rights);

•    a short description of how our user(s) allegedly infringe(s) Your trademark(s);

•    clear reference to the materials You allege are infringing and which You are requesting to be removed, for example, the url, a link to the deliverable provided to a user, etc.;

•    Your complete name, address, email address, and telephone number;

•    a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the trademark owner, its agent, or the law;

•    a statement made under penalty of perjury that the information provided in the notice is accurate and that You are the trademark or are authorized to make the complaint on behalf of the trademark owner; and

•    Your electronic or physical signature
You can send your Notice to:
Resiliency Technologies, Inc.
Attn: Tim Farrell
tfarrell@sharpenminds.com
 
Note that we will provide the user who is allegedly infringing Your trademark with information about the TM Notice and allow them to respond. In cases where sufficient proof of infringement is provided, we may remove or suspend the reported materials prior to receiving the user’s response. In cases where the allegedly infringing user provides us with information indicating that it is permitted to post the allegedly infringing material, we may notify You and then replace the removed or disabled material. In all such cases, we will act in accordance with applicable law. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

 

22. Miscellaneous.
These Terms of Service and any policies posted on the Platform or regarding the Platform constitute the entire agreement and understanding between You and Resiliency. Failure of Resiliency to enforce any right or provision of these Terms of Service will not operate as a waiver of such right or provision. If any provision or part of these Terms of Service is determined to be unlawful, void, or unenforceable, that provision will be severed from these Terms of Service but will not otherwise affect the validity or unenforceability of the remaining provisions herein. Nothing in these Terms of Service, the Privacy Policy, or on the Platform will be construed to constitute the forming of a joint venture, partnership, employment, or agency relationship between You and Resiliency.

 

23. Contact Information.
For any questions or complaints regarding the Platform, please contact Resiliency at:
Resiliency Technologies, Inc.
tfarrell@sharpenminds.com