Terms of Use

 

Last Updated: December 2023

These Terms and Conditions of Use (the "Terms of Use") apply to the Pink Executives website located at www.pinkexecutives.com, and all associated sites linked to www.pinkexecutives.com by Pink Executives, its subsidiaries and affiliates (collectively, the "Website"), and any Content (as defined below) therein.  Website is owned and operated by Pink Executives LLC, a California Limited Liability Company (hereinafter “Pink Executives,” “we,” “us,” “our”).

PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND PINK EXECUTIVES AGREE THAT: (1) DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY MANDATORY BINDING AND FINAL ARBITRATION; (2) PARTIES PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE RESPECTIVE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; (3) PARTIES WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING; AND (4) PARTIES WAIVE ANY RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

BY USING THE WEBSITE, YOU AGREE TO THESE TERMS OF USE, WHETHER OR NOT YOU HAVE READ THEM; IF YOU ARE NOT IN AGREEMENT WITH THESE TERMS OF USE, DO NOT USE THE WEBSITE.

Pink Executives reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Website following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, Pink Executives grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Website.

1. CONTENT; INTELLECTUAL PROPERTY

All text, graphics, user interfaces, visual interfaces, photographs, videos, trademarks, logos, sounds, music, artwork, graphics, documents, color-scheme, branding, and computer code (collectively, "Content"), including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website is owned, controlled or licensed by or to Pink Executives, and may be protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided in these Terms of Use, no part of the Website and no Content may be copied, reproduced, republished, uploaded, posted, altered, manipulated, exploited otherwise, publicly displayed, encoded, translated, transmitted, or distributed in any way (including "mirroring") to any other computer, server, Website or other medium for publication or distribution or for any commercial enterprise, without Pink Executives’ express prior written consent.

At times you may be offered a free download or printable, as a gift or opt-in offer, in exchange for your name and email address. You may use such information, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy, repurpose, or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.

Pink Executives grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Website, provided and only for as long as you comply with these Terms of Use. As a licensee, you understand and agree that you will not do any of the following:

• Copy, edit, distribute, duplicate or steal any information on the Website, or any Content therein, including that which has been posted by a third party, whether or not you have purchased the information.
• Use, post, distribute, copy, steal or otherwise use any portion of the Website, including Content or products, without express, written permission provided by Pink Executives and understand that any such use may constitute infringement, which may give rise to a cause of action against you.
• Hold any of the Content out to be your own, and understand that doing so constitutes stealing and is a violation of our intellectual property rights.
• Share purchased materials, information, or Content with others who have not purchased them.
• Use any portion of the Website, including all Content, information, and purchased materials, in any commercial manner such that you make, may make, or intend to make a profit from it.

You further acknowledge and understand that any such actions, including but not limited to those outlined above, will likely constitute infringement and/or theft of our work, and a violation of these Terms of Use and United States Federal laws, and we reserve the right to prosecute this infringement to the full extent of the law.

Any requests for written permission to use any content posted on our Website shall be made before you wish to use any such content and may be made by sending an email with your written request to [email protected]. Your request for permission does not constitute a permission. Pink Executives has no obligation to respond to your request and Pink Executives not responding to your request does not constitute a permission of any kind.

2. YOUR USE OF THE WEBSITE

To access or use the Website, you must be 18 years or older and have the requisite mental capacity to enter into these Terms of Use. By using this Website, you represent that you are at least 18 years old, and that you agree to be bound by these Terms of Use. Any use of this Website by anyone under 18 constitutes an unauthorized use and a violation of these terms and conditions; we do not authorize the use of this Website by anyone under 18.

You may not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Website or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Website or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Website. Pink Executives reserves the right to bar any such activity.

You may not attempt to gain unauthorized access to any portion or feature of the Website, or any other systems or networks connected to the Website or to any Pink Executives server, or to any of the services offered on or through the Website, by hacking, password "mining" or any other illegitimate means.

You may not probe, scan, or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Website, or any other customer of Pink Executives, including any Pink Executives account not owned by you, to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Website.

You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or Pink Executives systems or networks, or any systems or networks connected to the Website or to Pink Executives.

You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or with any other person’s use of the Website.

You may not forge headers or otherwise manipulate identifiers to disguise the origin of any message or transmittal you send to Pink Executives on or through the Website or any service offered on or through the Website. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

You may not use the Website or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Pink Executives or others.

3. PURCHASES; OTHER TERMS AND CONDITIONS

Additional terms and conditions may apply to purchases of products, programs, or services, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms of Use and the terms posted for or applicable to any product, program, or service offered on or through the Website, the latter terms shall control with respect to your use of that portion of the Website or the specific service.

Pink Executives obligations, if any, with regard to its products, programs, and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Website should be construed to alter such agreements.

Pink Executives may make changes to any products, programs, or services offered on the Website, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Website with respect to products and services may be out of date, and Pink Executives makes no commitment to update the materials on the Website with respect to such products and services.

The following terms also govern and apply to your use of the Website, and they are incorporated herein by this reference:

• Terms and Conditions
• Privacy Policy
• Disclaimers

Each of these policies may be changed from time to time and are effective immediately upon posting such changes on the Website.

4. ACCOUNTS, PASSWORDS AND SECURITY

Certain features or services offered on or through the Website may require you to open an account (including setting up a user ID and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify Pink Executives immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by Pink Executives or any other user of or visitor to the Website due to someone else using your user ID, password, or account as a result of your failing to keep your account information secure and confidential.

You may not use anyone else’s user ID, password, or account at any time without the express permission and consent of the holder of that user ID, password or account. Pink Executives cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

5. PRIVACY

Pink Executives’ Privacy Policy applies to use of this Website, and its terms are made a part of these Terms of Use by this reference. To view Pink Executives’ Privacy Policy, click here. Additionally, by using the Website, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Website may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

6. LINKS TO OTHER WEBSITES AND TO THE PINK EXECUTIVES WEBSITE

This Website may contain links to other independent third-party Web sites ("Linked Websites"). These Linked Websites are provided solely as a convenience to our visitors. Such Linked Websites are not under Pink Executives’ control, and Pink Executives is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. You will need to make your own independent judgment regarding your interaction with these Linked Websites.

7. FEEDBACK AND INFORMATION

Any feedback you provide at this site shall be deemed to be non-confidential. Pink Executives shall be free to use such information on an unrestricted basis.

You may be able to post your original content to the Website, including but not limited to blog comments, testimonials, or photos. You may also have the opportunity to respond to generated emails with comments or feedback, comment on a social media live stream, webinar, or any other medium where content is distributed in a manner that allows for participation or feedback. By posting any sort of information, you represent you are the owner of anything you post and are at least 18 years of age.

When you submit or post any such information, you also agree and understand that you are assigning and/or licensing us and anyone else authorized by us, the irrevocable, unlimited, royalty-free, perpetual, non-exclusive, unrestrictive, worldwide license to use, distribute, sell, copy, edit, exploit, or otherwise publicly disseminate any information or content you post, in whole or in part, with or without identifying you as the author of the original post or comment. If we so choose to identify you, you also grant us the right to identify you as the author of any comments, posts, or the like by name, email address, screen name, or any other reasonable manner of identification.

You agree you are wholly assigning any intellectual property ownership rights to Pink Executives by your action and decision to post on the Website or otherwise provide us with content, with access to our Website constituting good and valuable consideration in exchange for these intellectual property rights. You understand that should any of your comments or posts be used, in whole or in part, you are not entitled to any payment and will not request any form of payment or favorable treatment in return.

Testimonials: The Website may feature testimonials from clients, to provide readers with comments, feedback, and information from others’ experiences with the Website, our products, program, and services. While all information, photos, and quotes used are from actual clients, sharing their real, honest opinions of the Website, products, programs, and services, these testimonials are not to be considered as a guarantee that current or future clients will experience the same results, or a guarantee that all clients will have the same experience. You understand and agree that by reading a featured testimonial on the Website, you do not expect the same results, and understand this information is not a guarantee. You also understand and agree that the individuals featured may have different medical history, health status, and experience, and what worked for them may not work for you; you agree to use common sense and consult your personal medical and/or other professional provider before beginning any program we offer, and/or before implementing any information found on Website.

Your Conduct. You hereby agree and acknowledge that you will not provide any feedback or information on the Website, our social media pages, webinars, chats, or otherwise, that could harm us or another user, or include anything defamatory, harmful, hurtful, or otherwise upsetting. You understand that if you make the decision to post information or feedback that constitutes cyber bullying, your comments will be removed immediately, and we reserve our right to take action against you to the full extent of applicable laws.

You may use the Website for lawful purposes only, and agree you will not post, comment, or otherwise transmit any content which infringes the rights of another, and agree to hold us harmless should you do so. You also agree and understand you are not to provide information and/or feedback which would constitute a criminal offense, use the Website or content for fraudulent or unlawful purposes, create civil liability, is repugnant, constitutes a violation of another’s intellectual property rights, is vulgar or obscene in any way, or is otherwise objectionable. You agree that Pink Executives is the sole decider in whether information and feedback you provide is objectionable and have the unilateral right to remove any content you post, without explanation or ramifications. You also understand that Pink Executives may be obligated to take further legal action, based upon information you share, and reserve our right to do so. Should a third party choose to take legal action against you, as a result of something you posted on the Website, you agree to hold us harmless and fully indemnify us of any legal ramifications or actions.

8. DISCLAIMERS

PINK EXECUTIVES DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, PRODUCT, PROGRAM, SERVICE, OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. PINK EXECUTIVES CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. PINK EXECUTIVES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. PINK EXECUTIVES DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE WEBSITE AND/OR ANY PRODUCTS, PROGRAMS, AND/OR SERVICES OFFERED BY PINK EXECUTIVES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST PINK EXECUTIVES FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence, or any other cause of action.

Pink Executives reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Website, or any portion of the Website, for any reason; (2) to modify or change the Website, or any portion of the Website, and any applicable policies or terms; and (3) to interrupt the operation of the Website, or any portion of the Website, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

You acknowledge that what is shared on the Website is not, nor can be seen as, giving advice.

You further understand that Pink Executives, its employees, officers, directors, employees, partners, contractors, and agents, are not any of the following: a physician, dietician, nutritionist, counselor, psychologist, psychiatrist, psychotherapist, medical professional of any kind, doctor, lawyer, accountant, tax professional, financial advisor, career consultant, psychic, or similar professional.

You acknowledge that what is shared on the Website does not involve the diagnosis or treatment of any disease, illness, ailment, or any mental disorders as defined by the American Psychiatric Association and that Services are not to be used as a substitute for counseling, psychotherapy, psychoanalysis, mental health care, substance abuse treatment, or other professional advice by legal, financial, tax, career, medical, or other qualified professionals and that it is your exclusive responsibility to seek such independent professional guidance as needed and at your own expense.

9. LIMITATION OF LIABILITY

Except where prohibited by law, in no event will Pink Executives be liable to you for any indirect, consequential, exemplary, incidental, or punitive damages, including lost profits, even if Pink Executives has been advised of the possibility of such damages.

If, notwithstanding the other provisions of these Terms of Use, Pink Executives is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Website or any Content, Pink Executives’ liability shall in no event exceed the lesser of (1) the total of any subscription, purchase price, or similar fees with respect to any product, program, service, or feature of or on the Website paid in the six months prior to the date of the initial claim made against Pink Executives, or (2) US$100.00. Some jurisdictions do not allow limitations of liability; therefore, the foregoing limitation may not apply to you.

10. INDEMNITY

You agree to indemnify and hold Pink Executives, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries, and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Pink Executives by any third party due to or arising out of or in connection with your use of the Website.

11. VIOLATION OF THESE TERMS OF USE

Pink Executives may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Website, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Pink Executives’ rights or property, or the rights or property of visitors to or users of the Website, including Pink Executives’ customers. Pink Executives reserves the right at all times to disclose any information that Pink Executives deems necessary to comply with any applicable law, regulation, legal process or governmental request. Pink Executives also may disclose your information when Pink Executives determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You acknowledge and agree that Pink Executives may preserve any transmittal or communication by you with Pink Executives through the Website or any service offered on or through the Website, and may also disclose such data if required to do so by law or Pink Executives determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Pink Executives, its employees, users of or visitors to the Website, and the public.

You agree that Pink Executives may, in its sole discretion and without prior notice, terminate your access to the Website and/or block your future access to the Website if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Website. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to Pink Executives, for which monetary damages would be inadequate, and you consent to Pink Executives obtaining any injunctive or equitable relief that Pink Executives deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Pink Executives may have at law or in equity.

You agree that Pink Executives may, in its sole discretion and without prior notice, terminate your access to the Website, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Website or any service offered on or through the Website, or (4) unexpected technical issues or problems.

If Pink Executives does take any legal action against you as a result of your violation of these Terms of Use, Pink Executives will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Pink Executives. You agree that Pink Executives will not be liable to you or to any third party for termination of your access to the Website as a result of any violation of these Terms of Use.

12. GOVERNING LAW; DISPUTE RESOLUTION; ARBITRATION AGREEMENT

12.1. Governing Law. You agree that all matters relating to your access to or use of the Website, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in San Diego, California, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are a consumer based in the European Union. If you are a consumer based in the European Union, you may make a claim in the courts of the country where you reside.

12.2. Limitations. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees.

12.3. Mediation. In the event of any controversy or dispute between Pink Executives and you arising out of or in connection with your use of the Website, the parties shall attempt, promptly and in good faith, to resolve any such dispute by negotiation. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to JAMS, or its successor, for mediation. If the dispute cannot be resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the clause set forth in Section 12.4. below. 

12.4. Arbitration Agreement.

IF YOU ARE A U.S. RESIDENT, YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS (“ARBITRATION AGREEMENT”).

PLEASE BE AWARE THAT THIS SECTION 12 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND PINK EXECUTIVES HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND PINK EXECUTIVES BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.

12.4.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Pink Executives agree that any dispute, claim, or disagreement arising out of or relating in any way to this Agreement, including claims and disputes that arose between us before the effective date of the Terms of Use (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Pink Executives may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Pink Executives may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms of Use as well as claims that may arise after the termination of the Terms.

12.4.2. Informal Dispute Arbitration. There may be instances when a Dispute arises between you and Pink Executives. If that occurs, Pink Executives is committed to working with you to reach a reasonable resolution. You and Pink Executives agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Pink Executives therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you also agree to participate in the Conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Pink Executives that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at: Pink Executives LLC, 1140 Wall Street #523, La Jolla, CA 92038. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and email address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

12.4.3. Waiver of Jury Trial. YOU AND PINK EXECUTIVES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pink Executives are instead electing that all Disputes shall be resolved by arbitration under the Arbitration Agreement, except as specified in Section 12.4.1 above and Section 12.4.7 below. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

12.4.4. Waiver of Class or Other Non-Individualized Relief. YOU AND PINK EXECUTIVES AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 12.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section 12.4.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Pink Executives agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This sub-section does not prevent you or Pink Executives from participating in a class-wide settlement of claims (only after a court of competent jurisdiction has declared the class action prohibition unenforceable under applicable law).

11.4.5. Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Pink Executives agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Pink Executives otherwise agree, or the Batch Arbitration process discussed in Section 12.4.9 is triggered, the arbitration will be conducted in San Diego, CA. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. You and Pink Executives agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

12.4.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 12.4.9 is triggered, JAMS will appoint the arbitrator for each batch.

12.4.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all disputes arising out of or relating to Section 12.4.1 or Section 12.4.4, including any claim that all or part of Section 12.4.4 is unenforceable, illegal, void or voidable, or that Section 12.4.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 12.4.9, all disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 12.4.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

12.4.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Pink Executives need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

12.4.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Pink Executives agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Pink Executives by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall: (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Pink Executives. You and Pink Executives agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

12.4.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Pink Executives LLC, 1140 Wall Street #523, La Jolla, CA 92038, or via email to [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us or may enter into in the future with us.

12.4.11. Invalidity, Expiration. Except as provided in Section 12.4.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Pink Executives as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

11.4.12. Modification. Notwithstanding any provision in the Terms to the contrary, we agree that if Pink Executives makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Pink Executives at the following address: Pink Executives LLC, 1140 Wall Street #523, 92038 La Jolla. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms) remain in full force and effect. Pink Executives will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Terms.

13. VOID WHERE PROHIBITED

Pink Executives administers and operates the www.pinkexecutives.com Website from its location in La Jolla, California USA. Although the Website is accessible worldwide, not all features, products or services discussed, referenced, provided, or offered through or on the Website are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Pink Executives reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Website is void where prohibited. If you choose to access the Website from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

14. MISCELLANEOUS

You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Website, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.

If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and Pink Executives regarding your use of the Website, and any and all other written or oral agreements or understandings previously existing between you and Pink Executives with respect to such use are hereby superseded and cancelled. Other than as provided in a purchase agreement you enter into with Pink Executives, Pink Executives will not accept any counteroffers to these Terms of Use, and all such offers are hereby categorically rejected. Pink Executives’ failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Pink Executives of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Pink Executives and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.

Pink Executives provides access to Pink Executives international data and, therefore, may contain references or cross references to Pink Executives products, programs, and services that are not announced in your country. Such reference does not imply that Pink Executives in your country intends to announce such products, programs, or services.

 

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