terms and conditions
1.Contract Between You and the Company; General Conditions.
2.Changes to These Terms.
3.The Company's Intellectual Property; Limited License to the Company Services.
You acknowledge and agree that the Company Services, products, any logos, names, designs, text, graphics, software, content, files, materials and any other intellectual property rights contained therein, including without limitation any copyrights, patents, trademarks, proprietary or other rights arising therefrom are owned by the Company and/or its affiliates, licensors or suppliers. Furthermore, you acknowledge and agree that the source and object code of certain Company Services (such as our mobile applications), products and the format, directories, queries, algorithms, structure and organization of the same are the intellectual property, proprietary and confidential information of the Company and its affiliates, licensors and suppliers. You expressly agree that you will do nothing inconsistent with the Company's ownership of the Company Services, and that you gain no rights, title, or interest in or to any the Company Services, except as stated in these Terms or any executed written agreement between you and the Company. In addition, except as expressly set forth in these Terms, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of the Company or any third party.
For any Company Services which enable you to use any software, content, or other materials owned or licensed by us only after you become validly authorized by us, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the specific Company Services, and any related software, content, or other materials FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
You are prohibited from, and expressly agree that you will not: (i) circumvent or disable any content protection system or digital rights management technology used with any Company Services; (ii) decompile, reverse engineer, disassemble or otherwise reduce any Company Services to a human-readable form; (iii) remove identification, copyright or other proprietary notices in or on Company Services; (iv) access or use any Company Services in an unlawful or unauthorized manner or in a manner that suggests an association with our content, products, services or brands, unless you have an executed agreement with us that allows for such activity; (v) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Company Services or any part thereof, except as expressly authorized in these Terms or as part of the Company Services provided to you; (vi) introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Company Services or connected network, or interfere with any person or entity's use or enjoyment of any the Company Services; (vii) access, monitor, or copy any element of the Company Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or (viii) sell, resell, or make commercial use of the Company Services, unless you have an executed agreement with us that expressly allows for such activity. You may not access or use any Company Service in violation of United States or Canadian export control and economic sanctions requirements. By accessing or otherwise using any services, content or software through any Company Services, you represent and warrant that: (ix) your access to and use of the Company Services, or any content or software therein, will comply with any and all requirements in these Terms and Conditions; (x) you are not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a terrorist supporting country, and that you are not listed on any U.S. or Canadian government list of prohibited or restricted parties; and (xi) you will comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any Company Services and or website.
D.Third Party Services and Content.
E.Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THE COMPANY SERVICES, INCLUDING WITHOUT LIMITATION, THE INFORMATION AND OFFERS CONTAINED ON THIS SITE, ANY PRODUCTS, GOODS, SERVICES, WEBSITES, APPLICATIONS, HEALTH AND WELLNESS CONTENT AND ADVICE, AND NUTRITIONAL ADVICE OR INFORMATION ARE PROVIDED "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND EXCEPT AS REQUIRED BY LAW. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE COMPANY SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, TIMELINESS, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE MAKE NO GUARANTEE OR WARRANTY THAT THE COMPANY SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. WE FURTHER MAKE NO GUARANTEE OR WARRANTY AS TO THE PARTICULAR HEALTH AND WELLNESS GOALS, RESULTS, BENEFITS OR OUTCOMES THAT MAY BE ACHIEVED OR OBTAINED THROUGH USE OF ANY THE COMPANY SERVICES. YOU AGREE TO USE THE COMPANY SERVICES AT YOUR SOLE RISK. YOU WILL NOT HOLD THE COMPANY OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE COMPANY SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE COMPANY SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH OUR WEBSITES THAT MAY APEAR ON THE SITE, INCLUDING WITHOUT LIMITATION, INFORMATION OR PRODUCTS PROVIDED BY LICENSE TO US FROM THIRD PARTIES. CERTAIN WARRANTIES WITH RESPECT TO PARTICULAR PRODUCTS/SERVICES ACCESSED FOR SALE THROUGH OUR WEBSITES MAY BE AVAILABLE THROUGH MANUFACTURERS' WARRANTIES, THOUGH NOT THROUGH THE COMPANY; PLEASE READ THE WARRANTIES INCLUDED IN THE DOCUMENTATION PROVIDED ALONG WITH THOSE PRODUCTS/SERVICES FOR FURTHER DETAILS. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD-PARTY CONTENT, THIRD-PARTY SERVICES, OR THIRD-PARTY PRODUCTS (INCLUDING PRODUCT DESCRIPTIONS) DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH OUR WEBSITES.
F.Express Consent To Texting and Autodialed Solicitations.
If you provide a telephone number to us or sign up to receive text messages or marketing solicitations from us, you acknowledge and agree that we may send such text messages or solicitations using an autodialing device to the number you provide, that such solicitations may include prerecorded or artificial voice messages. You further agree that, by providing your telephone number, your consent to receive text messages or solicitations is not a condition of purchasing any goods or services. Standard messaging rates may apply. You are free to opt-out of receiving text messages from us at any time. Please see any additional instructions provided to you at the time you sign up.
4.Your Content and Account.
A.User Generated Content.
The Company may allow users of our websites to communicate, submit,
upload or otherwise make available text, reviews, stories, images, photos,
audio, video, media, chats, personally identifiable information
(including health, wellness and nutritional data), feedback about
our products and services, or other content ("User Generated Content").
User Generated Content that you submit will be stored, maintained and used
types of User Generated Content that you submit, such as chats, photos, reviews, and
message board entries may be accessed and viewed by the public.
You may not submit or upload User Generated Content that the Company determines in its sole and absolute discretion is illegal, infringing, false, defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law. We have the right, but not the obligation, to monitor, screen, post, remove, modify, store and review User Generated Content or communications you submit, at any time and for any or no reason, including to ensure that the User Generated Content or communication conforms to these Terms, without prior notice to you. You represent and warrant that any User Generated Content you submit or upload conforms to these Terms and Conditions and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these Terms and Conditions. You agree to indemnify and hold us and our affiliates and subsidiaries, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys' fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights. We will not be responsible or liable to any third party for any User Generated Content. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by other users of the Company Services, or any authors, experts, celebrity trainers or otherwise. User Generated Content shall not state or reflect the attitudes and opinions of the Company, and any views and opinions expressed on our websites shall not be attributed to or otherwise endorsed by the Company. You agree to comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any the Company Services and our websites.
B.License to Your User Generated Content.
We do not claim ownership to your User Generated Content; however, you grant us a perpetual, fully paid-up, non-exclusive, sub-licensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works of, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in any and all media and channels now known or hereafter devised (including but not limited to third-party sites and platforms such as Facebook, Instagram, Pinterest, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. This includes without limitation our use of your User Generated Content in connection with any advertising, product packaging, printed publications, presentations, promotional materials, events and associated marketing materials, television and digital commercials, videos, social media websites, or on our websites. We are not, however, obligated to use your User Generated Content. To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a limited, non-transferable, non-exclusive license to create a derivative work using our copyrighted works as required for the sole purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
Should this website contain any public forum(s), including without limitation, discussion forums, message boards, blogs, chat rooms or instant messaging features. You acknowledge these public forums are for public and not private communications. You further acknowledge that any User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Generated Content you upload, submit, post, transmit, communicate, share or exchange by means of any public forum and for the consequences of submitting or posting same.
You must only use this website for lawful purposes, and you must not use them in a way that infringes the rights of anyone else or that restricts or inhibits anyone else's enjoyment of the Site.
E.Your Account; Passwords.
This website may permit or require you to create an account to enjoy some of the services and benefits that we provide. In such event, you agree to provide and maintain accurate, current and complete information for your accounts, including as applicable, your name, contact, and payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person's username, password or other account information, or another person's name or likeness, or if applicable, provide false details for a parent or guardian.
You agree that we may take steps to verify the accuracy of information you provide.
You are responsible for maintaining the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Company Services. You agree not to use the account, username or password of any other account holder at any time. The Company will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
When you create an account, you may be asked to provide certain personal information, such as your name and e-mail address. Some of this information may be publicly viewable by others, such as other the Company members or account holders.
5.The Company's Products/Services; Websites; Orders.
Most of our products and services carry a specific money back guarantee, return or exchange policy starting from the date that the product or service is delivered or supplied to you. Please review the information provided with your product/service for specific details. To return or exchange a product, please call our Customer Service line to discuss. Products that come with a money back guarantee will receive a refund of the purchase price, less applicable shipping and handling, unless stated otherwise. In some cases, you may also be responsible for paying to ship any products back to us. We will not be responsible for any loss or damage to returned products that occur in transit. If returned products are lost or damaged in transit, we reserve the right to charge you for, or not refund any amounts attributable to, any such lost or damaged products. Should you experience any difficulty or delay in returning a product and securing the proper refund, please call Customer Service at the number listed on the Site.
B.Product and Service Descriptions, Price and Other Information.
We have taken reasonable precautions to ensure that all product descriptions, prices and other information shown on our websites are correct and fairly described. However, when ordering products or services through our websites, please note that:
- the Company reserves the right to not accept any orders if there is a material error in the description of the product or service, or if the price advertised is incorrect;
- the Company reserves the right to refuse or discontinue the supply of any product or service to any customer, or change, suspend or discontinue any aspect of our websites at any time in our sole and absolute discretion;
- all prices are displayed in United States Dollars unless expressly indicated otherwise;
- packaging and contents may vary from that shown on our websites;
- any weights, dimensions, and capacities shown on our websites are approximate only;
- when you place an order, we estimate the tax applicable to your order and include that estimate in the total for your convenience (the final tax amount will be based on then-current rate as established by the taxing authority, charged to your payment card, and reflected in the order confirmation and package invoice we provide to you); and
- all items are subject to availability and we will inform you as soon as reasonably possible if any product or service you ordered is not available and whether we may offer you an alternative of equal or higher quality and value. Please also note that we may be required to change the terms of any products, goods or services that we offer and/or you purchase. This includes without limitation changes to prices, taxes, shipping and handling amounts, specifications, delivery times, and/or package contents. We will provide you with prior notice of any changes, by posting a notice on our websites, sending an e-mail to you at the address you provided at the time of purchase, or by including a notice in any products you receive on an automatic recurring or subscription basis. The Company will not incur any obligation as a result of such change. As a valued customer, you are always free to cancel future orders at any time by calling our Customer Service department. By continuing to accept products, goods and/or services after we have notified you of a change to any terms, you will be deemed to have accepted the change.
We reserve the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will of course refund your payment.
All purchases are subject to applicable shipping and handling, and sales and/or other taxes, which will be applied to your order total. For non-shippable goods, sales and/or other taxes will be calculated based on the billing address provided. For shippable goods, sales and/or other taxes will be calculated based on the shipping address provided. For orders that consist of both shippable and non-shippable goods, sales and/or other taxes will be calculated based on the shipping address provided.
D.Your Personal and Payment Information.
When you provide any information to us for any reason, such as to sign up for an offer,
use our mobile applications (if any), or purchase products, you agree to only provide true,
accurate, current, and complete information. By providing any credit card or other payment
card information to us, you represent that such payment information is correct, and belongs
to you or you have the authority to use such payment card. In the case of e-mail, you must
provide an accurate e-mail address that is registered to you. You are responsible for promptly
updating your information with any changes, especially to keep your billing information current.
You must promptly notify us if your payment card is cancelled (for example, for loss or theft).
Changes to such information can be made by contacting our Customer Service department. To help keep
your account current and prevent service interruption, you acknowledge the Company may update your
payment card information on file when it is set to expire or based on updates it receives from the
bank that issues your payment card. You agree that your placement of an electronic order on our
websites is sufficient to satisfy any applicable statute of frauds,
and no further writing is required.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
We will make commercially reasonable efforts to ship your products within the timeframe we provided to you at the time of purchase. Packages shipped outside the continental United States or Canada may take longer to arrive. Please note that any timeframes we provide are good faith estimates and may be subject to change. We will take commercially reasonable steps to inform you in writing of any shipping delays that extend beyond the timeframe we provided at the time of purchase. Product availability may be limited in some cases and not available for immediate shipment. In that case, products may be delivered in separate shipments depending on availability. For example, if your purchase included two or more items, we may ship those products which are in stock, and later ship the other products to you when they become available. You are always welcome to call Customer Service if you wish to cancel or modify your order due to a delay in shipping. We will not be liable beyond refunding your purchase price if there is a delay in delivering your product(s).
Since we are not authorized to sell our products in all jurisdictions, we may reject certain purchases based on the shipping address provided. Please note we reserve the right to set appropriate shipping terms for shipments to certain foreign jurisdictions that are fulfilled from U.S. or Canadian warehouse locations.
F.Automatic Renewal and Subscription-Based Products.
We may decide to offer certain products and services on an automatic or subscription basis, so you can enjoy all the benefits of our products or services on a continuous basis. If you choose this option at the time of your purchase, you agree such products/services will automatically renew at the frequency disclosed to you at the time of your initial purchase (i.e., monthly, quarterly or annual basis, etc.). By choosing such an option, you acknowledge and agree your subscription will automatically renew, and unless you cancel, you authorize us to charge your payment card for the products/services you purchased, plus applicable shipping and handling, and taxes. If you purchased a subscription with a free trial period, you authorize us to charge your payment card when the free trial period ends, unless you cancel your subscription before the free trial period ends, and you will not receive a notice from us that your free trial period has ended. The charges will typically occur on or around the same day of the month as your initial purchase, although some charges may be delayed for business or legal reasons. Physical products will be delivered to the address you provided during your initial purchase. Your automatic subscription will continue until you or the Company cancel your order. If there are any changes to your subscription terms, such as pricing, frequency, date of charge or any other items, we will take commercially reasonable efforts to inform you in writing of such change. You may modify or cancel your subscription at any time by calling our Customer Service department. Any modifications or cancellation of your subscription must be received by us at least five (5) days prior to the next scheduled payment/ship date in order to take effect for that period. If you cancel less than five (5) days prior to the automatic renewal day for your subscription, your subscription will continue as scheduled and your cancellation will take effect in the following period.
G.Reservation of Rights.
The Company reserves the right to suspend or terminate your interaction with the Company for any or no reason in its sole and absolute discretion, including your access, use or purchase of any products, goods or services that we provide. If you are accessing, using and/or purchasing anything on behalf of a company, you represent you have sufficient authority to bind that company to these Terms.
6.Important Notice About Our Content.
A. The Company Does Not Provide Medical Advice.
Although the Company provides its products and services with your health and safety in mind, it is critical that you consult your physician, follow all provided safety and other instructions, and obtain authorization before accessing or using any product or service, especially if you are prone to injuries, are pregnant or nursing, or have any other unique or special medical conditions. ANY DESCRIPTION PROVIDED ON THIS WEBSITE IS NOT INTENDED TO DIAGNOSE ANY MEDICAL CONDITION, REPLACE THE ADVICE OF A HEALTH CARE PROFESSIONAL OR PROVIDE ANY MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. The information made available on this website should not be relied upon when making medical decisions. YOUR USE OF ANY COMPANY PRODUCT OR SERVICE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND THE COMPANY. Your individual results using Company products or services may vary. Exercise and proper diet are necessary to achieve and maintain weight loss and muscle definition. The persons providing testimonials featured on our websites may have used more than one product or program to achieve their results.
B.Assumption of Risk.
You expressly acknowledge and agree that your access, use and/or involvement with any Company product or service may involve certain side effects disclosed in advertising on the product packaging. You hereby acknowledge and willingly accept these risks and agree to unconditionally release and hold harmless the Company from and against all claims, suits, causes of action, costs, expenses or liability arising out of or related to your access, use and/or involvement with any such product or service.
7.Copyright Policy and Copyright Agent.
It is the Company's policy to respect the copyright and other intellectual property rights of others. The Company may remove content from its websites or other properties that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, the Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, the Company complies with the Digital Millennium Copyright Act.
If you believe that content available on the Site infringes your copyright, you or your authorized agent may submit a notification to us, as set forth in this policy. Please send a notification including all of the information described below ("Notification") to our copyright agent by mail or e-mail using the contact information provided below. Upon receipt of a substantially compliant Notification regarding an alleged copyright violation, we will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing.
8.Dispute Resolution, Arbitration Clause and Waiver of Class Actions and Class Arbitrations.
A.Class Action Waiver
YOU AND THE COMPANY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS PART OF ANY PURPORTED CLASS ACTION, MASS ACTION OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
The terms of this Section (Section 8) shall apply to all Disputes between you and the Company. For the purposes of this Section, "Dispute" shall mean any dispute, claim, or action between you and the Company arising under or relating to any product sold by the Company, any Company Service, the Company's websites, these Terms, or any other transaction involving you and the Company, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” shall be interpreted to be given the broadest meaning allowable under law, provided however, that YOU AND THE COMPANY AGREE THAT "DISPUTE" AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR THE COMPANY FOR (i) TRADE SECRET MISAPPROPRIATION; (ii) PATENT INFRINGEMENT; (iii) COPYRIGHT INFRINGEMENT OR MISUSE; OR (iv) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
AGREEING TO BINDING ARBITRATION MEANS THAT BOTH YOU AND THE COMPANY ARE WAIVING THE RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
This Paragraph 8 is deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. Any and all Disputes shall be resolved via binding arbitration initiated through JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.) except for Disputes asserted on an individual basis that are properly filed in a small claims court or other court of competent jurisdiction having a jurisdictional limit of US$10,000 or less. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, except as set forth below, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the Terms & Conditions as a court would.
The arbitration will be governed by the JAMS Streamlined Arbitration Rules & Procedures (the "JAMS Rules"), as modified by this Agreement, and will be administered by JAMS. For claims exceeding $5,000.00 in United States currency, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures. Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The JAMS Rules are available online at www.jamsadr.com or by calling JAMS at 1-800-352-5267. If you initiate arbitration and the total amount in controversy is US$100,000 or less, the only fee you shall be required to pay is US$250 (which is less than the current standard JAMS filing fee); all other costs will be borne by the Company. In the event that the arbitrator determines that the claims were frivolous, the arbitrator may (except in California or where otherwise prohibited by law) award to the prevailing party the costs and attorneys' fees reasonably incurred in connection with the arbitration. If there is a conflict between the JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern.
Notwithstanding the provision above with respect to applicable substantive law, any arbitration conducted pursuant to these Terms and Conditions shall be governed by the Federal Arbitration Act (9 U.S.C. §1, et seq.). JAMS and the parties must comply with the following rules: (a) the arbitration shall be conducted by a single neutral arbitrator approved by or otherwise affiliated with JAMS; except that if the total amount in controversy is more than US$100,000, the defendant, whomever that party may be, shall have, in its sole discretion, the right to select a panel of three arbitrators; (b) the party initiating the arbitration shall choose the form in which they would like the arbitration to be conducted: via telephone, online, solely based on written submissions, or at an in-person hearing; (c) notwithstanding the foregoing, if either party requests an in-person hearing: (i) the arbitrator shall decide whether a hearing is necessary or whether the arbitration should proceed via telephone, online or solely based on written submissions, (ii) if the arbitrator deems that a hearing is necessary, the hearing shall occur at a mutually agreed upon location, or, if the parties are unable to agree on a location, at a location that is selected by the arbitrator and is reasonably convenient to all parties consistent with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness, and (iii) either party may elect to participate in an in-person hearing by phone, unless the arbitrator decides otherwise; (d) the arbitrator may not award any: (i) incidental, indirect or consequential damages, including damages for lost profits, or (ii) punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages described in subparagraphs (d)(i) and (d)(ii); (e) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; (f) unless otherwise mutually agreed by the parties in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding; and (g) the Arbitrator's award will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based.
The arbitrator may not decide issues relating to arbitrability and the scope or enforceability of this arbitration provision, which shall be only for a court of competent jurisdiction to decide. If subparagraph (f) above is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. Judgment on the award issued by the arbitrator may be entered in any court having jurisdiction. This arbitration provision shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
D.Small Claims Court Option.
Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court's jurisdiction and is pending only in that court.
E.Improperly Filed Claims
All Disputes between you and us must be resolved in accordance with this Resolution of Disputes section. All Disputes filed or brought that are not in accordance with to this section shall be considered improperly filed. Should a Dispute be filed by either you or us in manner that is not in accordance with this section, the other party may seek to recover attorneys' fees and costs up to US$5,000, provided that the other party has been notified in writing of the improperly filed Dispute, received fourteen days to withdraw same, and fails to do so.
F.Exclusive Venue for Other Controversies.
Any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the state or federal courts located in the Southern District of New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
All disputes shall (i) be governed by the internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) the arbitrator shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or U.S. federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
9.Indemnification; Limitation of Liability.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers harmless from and against any claim, action, demand, loss, suit, or damages (including attorneys' fees) made or incurred by any third party arising out of or relating to your improper use of this website, any of the products or services sold by the Company Services, your violation of these Terms, or your violation of any rights of a third party.
B. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS OR DAMAGES , INCLUDING SPECIAL, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, SMART PHONE OR OTHER PROPERTY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, REGARDLESS OF THE FORESEEABILITY. AND/OR IF WE WERE ADVISED OF SUCH DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO THE COMPANY OR ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE THE SITE OR OF ANY THE COMPANY SERVICES. IN NO EVENT SHALL THE COMPANY, OR OUR PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS , LOST BUSINESS, OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, THAT ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THE USE, OR THE INABILITY TO USE, THE SITE OR THE PRODUCTS OR SERVICES SOLD ON THE SITE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OUR PROVIDERS OR DISTRIBUTORS, EXCEED THE TOTAL CHARGES PAID BY THE CONSUMER IN THE TRANSACTION GIVING RISE TO ANY SUCH LIABILITY. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. THE COMPANY SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE COMPANY WILL NOT BE LIABLE FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CIRCUMSTANCE BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR. This Paragraph B does not apply to New Jersey Residents.
C.Limitation of Liability For New Jersey Residents
The following modifications to the Limitations of Liability/ Disclaimer section of these Terms & Conditions apply to residents of New Jersey:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL OUR PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS OR DAMAGES , INCLUDING SPECIAL, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, SMART PHONE OR OTHER PROPERTY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, REGARDLESS OF THE FORESEEABILITY AND/OR IF WE WERE ADVISED OF SUCH DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO THE COMPANY OR ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE THE SITE OR OF ANY THE COMPANY SERVICES.
IN NO EVENT SHALL OUR PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS , LOST BUSINESS, OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, THAT ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THE USE, OR THE INABILITY TO USE, THE SITE OR THE PRODUCTS OR SERVICES SOLD ON THE SITE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OUR PROVIDERS OR DISTRIBUTORS, EXCEED THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST NINETY (90) DAYS TO THE COMPANY FOR ANY OF THE COMPANY’S PRODUCTS OR SERVICES.
THE LIMITATION OF LIABILITY CONTAINED IN THESE TERMS & CONDITIONS DOES NOT APPLY TO YOU FOR DAMAGES ARISING OUT OF OUR NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY OTHER CAUSE OF ACTION ARISING FROM OUR ACTS BUT DOES APPLY TO THE ACTS OR OMISSION OF OTHERS. OUR AGGREGATE LIABILITY FOR ALL CLAIMS UNDER ANY CIRCUMSTANCES WILL NOT EXCEED $1,000.00 OR YOUR ACTUAL, OUT-OF-POCKET COSTS AND DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR LOST PROFITS, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES AS STATED IN THESE TERMS AND CONDITIONS.
A. Submissions and Unsolicited Ideas Policies.
The Company is constantly developing new products and services. Although we typically develop programs internally, we understand some people may be interested in submitting their ideas for possible development and marketing within the Company business model. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.
B. International Users. The Company makes no representation or warranty that the materials contained within our websites are appropriate or available for use outside of the United States or Canada, and access from territories where the contents or products available through the websites are illegal is prohibited. You may not use the websites or export the content or products in violation of U.S. or Canadian export laws and regulations. If you access our websites from a location outside of the United States or Canada, you are responsible for compliance with any and all local laws, rules, regulations and ordinances.
C. Notices. All notices required or permitted to be given under these Terms and Conditions must be in writing. The Company may provide you notice by sending you an e-mail to the address on file with us, which you agree electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR E-MAIL ADDRESS ON FILE WITH THE COMPANY IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY THE COMPANY OF AN EMAIL TO THAT ADDRESS. You shall give any notice to the Company by means of U.S. mail, postage prepaid, to the Company at the following address: 5507 Nesconset, Hwy PMB#316, Ste 10, Mount Sinai, NY, 11766 Such notice to the Company shall be effective upon receipt of notice by the Company.
If any provision of these Terms (except for Section 9), or a part thereof, shall be unlawful, void or for any reason unenforceable, then that provision or part thereof shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions or parts thereof.
Notwithstanding anything to the contrary in these Terms, the Company reserves the right, without notice and in its sole and absolute discretion, for any reason or no reason, to terminate your access and use of any Company Services, including to block or prevent your access and use of any of our websites. You agree that the Company shall not be liable for any termination of your access and/or use of our websites.
F.No Third Party Beneficiaries.
Except as set forth in these Terms, only you and the Company may enforce these Terms; no third party shall be entitled to enforce these Terms.
The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing signed by an officer of the Company in order to be effective.
The Company may assign these Terms to any person or entity at any time, for any reason, with or without notice to you.
J. Amendments; Entire Agreement.