Terms and Conditions
Welcome to Fitingo Limited (the “Company”), the company acting and organized under the laws of the Republic of Cyprus, with address: Boumpoulinas, 1-3, Bouboulina Building, Flat/Office 42, 1060, Nicosia, Cyprus, represented by Director Liubov Socolova Limnioti.
These Terms and Conditions (hereinafter referred to as the “Terms”) regulate the use of the Services by Fitingo Users.
Please read the Terms carefully (particularly, section 7) before commencing a free trial or before concluding a purchase for Fitingo auto-renewing subscription service. You must proactively cancel a subscription or a free trial to avoid charge in your App Store’s settings at the latest 24 hours prior to the end of the free trial or the current subscription period. Deleting the App doesn't conclude your subscriptions and free trials. If you’re don’t know exactly how to cancel a subscription or a free trial, please see the Apple Support Site, Google Play Help (or other reputable app store support areas).
1. Terms and definitions
As used, these Terms,
1.1. “Company”, “we”, “us”, or “our” refer to Fitingo Limited, the company acting and organized under the laws of the Republic of Cyprus, with address: Boumpoulinas, 1-3, Bouboulina Building, Flat/Office 42, 1060, Nicosia, Cyprus.
1.2. “Fitingo Users” or “Fitingo User” refer to the users of Fitingo Services.
1.3. “You” or “yours” refer to Fitingo Users.
1.4. Fitingo (the “App”) and the content made available through the App or any of our communication (the "content") are distributed via Fitingo Limited. The App, with the content, tools, transactions and other services made available through utilisation of the App, are together referenced as "Services".
2. Acceptance of terms
2.2. Your authorisation to access and usage of the Services is evidence of your consent to be bound by the Terms, which establishes a lawfully binding contractual relationship between you and the Company.
2.3. These Terms contain important disclaimers (section 3), disclaimers of warranties (section 9), limitation of liability (section 10), along with terms that waive your right to jury trial, right to a court hearing and right to participate in a class action (arbitration and class action waiver). Unless you opt out within 30 days of initial usage of our Services as outlined in section 14, arbitration is the exclusive remedy for all disputes and is compulsory except as identified in section 14.
2.4. The Company reserves the right, at its sole discretion, to modify, discontinue or terminate our Services, including any portion thereof, on a global or individual basis, or to modify these Terms, at any time and without prior notice.
2.5. If we modify these Terms, we will post these Terms as modified on our Site fitingo.com. By continuing to access or use our Services after we have posted a modification to these Terms, you are indicating that you agree to be bound by the modified Terms. The Terms will be modified at least once per 12 (twelve) calendar months beginning from the date of posting the latest version of these Terms. We encourage you to periodically visit our Site fitingo.com to monitor the updates on these Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using our Services.
1.6. If you wish not to accept these Terms, or if you are not authorized to be bound by the Terms, then do not download the App or access the Services in any other way.
3. Important disclaimers
2.1. The Company will not provide any form of medical advices, health insurance or any other form of healthcare Services, including without limitation, any counselling, testing, evaluation, prescription, procedure or therapy related to exercise, nutrition, weight loss or wellness or related to the avoidance, prevention, diagnosis or treatment of any injury, illness, disease or condition (together, "healthcare services").
2.2. The Services is meant only as a facilitating measure which might be useful in accomplishing your overall health and fitness ambitions. The Services might not be apt for every individual and is explicitly not a replacement for professional healthcare Services. You hereby acknowledge that your dieting and exercise habits and activities involve dangers which may include risk of bodily injury or death, and that you are now hereby assuming those risks. Before accessing or commencing with the use of the Services, you agree to release and discharge the Company from any and all possible actions, known or unknown, arising from your use of the Services.
2.3. You should speak to a qualified healthcare professional to decide if the Services would be safe and beneficial for you. You are expressly prohibited from accessing or commencing the use of the Services against any medical advices or if using the Services might pose any possible related health risks. Related to this, you hereby confirm that you are accepting complete accountability for your health, life and well-being, along with the health, lives and well-being of any of your born and unborn family (as applicable), and all decisions presently or in the future.
2.4. To the fullest possible extent allowed by relevant legislation, you are expressly agreeing to the fact that we are not, in form, providing medical advices via the Services. We will not be responsible for any health issues that might be obtained from training programs, consultations, products, or events you discover via the Services. All the content provided via the Services, whether provided by us or any third parties (regardless of any claim they may make as to medical qualification) is not intended to be and should not in any circumstance be substituted in place of (i) the advices of your physician or other medical professionals, or (ii) information contained on or within any product packaging or label. Should you have any health related questions or have an emergency, please immediately contact your healthcare provider or your local emergency services.
2.5. To reiterate, your using of the Services will not be viewed as constituting a doctor-patient, therapist-patient or other healthcare professional relationship between yourself and the Company.
2.6. You should always diligently study closely all information provided by the manufacturers of the food products, whether via the internet or upon the product packaging and labelling, including nutrition information, ingredients, food allergen and contact information, and health claims, before using or consuming a product. The Company will not assume any fault for inaccuracies about food recipes, exercises or other content viewed via the Services. If more information about a food product is required, please promptly contact the manufacturer directly.
2.7. The testimonials that may be provided from time to time via the Services are above average results, which will not applicable to a normal individual, and are not intended to represent that any person will accomplish similar or the same outcome. No promises are made in relation to the level of success you may achieve, and you accept the possibility that outcomes will differ for each person. There is no promise that examples of previous fitness outcomes can be mirrored in the future. Nor do we promise that you will maintain the results you achieve if you do not continue to follow our programs.
2.8. As with any health or fitness related Services, your results may differ, and such difference will be based upon many variables, including but not restricted to, your individual capacity, life experience, unique health and genetics, starting point, expertise, and level of commitment. Every person's health, fitness, and nutrition results will depend on his/her background, dedication, and motivation. You using the Services should be grounded upon your own diligent research and you are in agreement that the Company is not to be liable for any results of your physique that is directly or indirectly connected to the purchase and use of the Services.
2.9. Along with other limitations and disclaimers herein, the Company disclaims any liability or loss in connection with the content provided on the Services.
4. Registration of profile.
4.1. In order to access the full set of features of the Services, you must register your profile in the App ("profile") and supply stated detail about yourself as prompted by the registration form.
4.2. Upon registering the profile, you are representing and warranting to the Company that: (i) all necessary registration detail you submit is correct and accurate; (ii) you will maintain the integrity of such information; and (iii) your use of the Services does not violate any related law or regulation or these Terms. Otherwise, the Services may not work properly, and we may not be able to get in touch with you regarding important notices.
4.3. You may not use Fitingo Services for any purpose that is unlawful or prohibited by these Terms or to solicit the performance of any illegal activity or other activity which infringes the rights of Fitingo Limited or others.
4.4. The Services is not to be used by persons under age of 16. You hereby represent and warrant to the Company that you satisfy the preceding requirement. All users who are minors in the location in which they are resident (under the age of 18 generally) need to have obtained the permission of, and be directly supervised by, their parent or guardian to use the Services. Also, if you are a minor, you are required to have your parent or guardian study and consent to these Terms before you use the Services.
4.5. Violation of these Terms results in deletion or block of your profile and restriction of your access to Services. We have no obligation to provide you with notice on deletion of your profile or restriction of your access to the Services.
4.6. Maintaining the confidentiality of your profile login detail is your responsibility and you are also completely responsible for all activities that occur under your profile. You agree to inform the Company immediately of any unauthorized use or any other breach of security. The Company will not be liable for any loss or damage resulting from your failure to follow the above obligation.
4.7. Through use of the Services, you consent to the receiving of particular communications, such as, for example and not restricted to, updates on the App or a periodic e-mail newsletter from the Company. You can of course opt-out of what you perceive as non-essential communications by unsubscribing from the email notification.
5. Use of Fitingo Services
5.1. You hereby agree that all the text, images, marks, logos, compilations (arrangement and assembly of information), data, other content, software and materials being displayed on the Services or in use by the Company to work the Services (including the App and the content but to the exclusion of any user content (as defined below)) is the under the ownership of us or to third parties.
5.2. The Company explicitly reserves all rights, including all intellectual property rights, in all of the following, and except as expressly allowed by these Terms, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly no allowed. The providing of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights.
5.4. You grant to the Company the non-exclusive, worldwide, transferable, perpetual, irrevocable right to publish, distribute, publicly display and perform the user content in connection with the Services.
5.5. Subject to the Terms herein, the Company hereby grants you a non-transferable, non-exclusive, license (exclusive of permission to sublicense) to (i) use of the Services solely for your personal and non-commercial use, and (b) install and use the App, only on your personal handheld mobile device (e.g., iphone, android, etc.) and only for your personal and non-commercial use.
5.6. You agree, and represent and warrant, that your using of the Services, will be compliant with the foregoing license, agreements and restrictions and will not infringe nor violate the rights of any other party or breach any contractual or legal obligation to any other parties. Additionally, you hereby agree that you will abide by all relevant laws, regulations and ordinances relevant to the Services or your use of it, and you will be responsible solely for your own personal violations of any such legislation.
5.7. You must get necessary equipment and telecommunication services to access the Services yourself, and pay all fees in association with such.
5.8. We retain the right to alter the Services, whether free of charge or paid for, at any time, with or without notice. You hereby acknowledge that a variation of the Company's actions may prevent or restrict you from accessing and using the Services at certain times and/or in the same way, for limited periods or permanently, and agree that the company is neither responsible nor liable for any such actions, including, and not restricted to, for the deletion of, or failure to make available to you, any content or Services.
5.9. Your having access to and use of the Services is at your own risk.
The Company will not be accountable for any damage to your computer, loss of data, or other harm to you or any third party, including, and not restricted to, any bodily harm, that can be related to you having access to or use of the Services, or reliance on any information or advice provided.
5.10. The Company is not obliged to provide you with any kind of customer support, however, the Company, at its own discretion, may decide to provide you with such customer support.
6. App stores, third party ads, other users
6.1. You agree that the availability of the App depends on the third party from which you have received the App, e.g., the Google Play App Store, and/or other app stores (collectively, "app stores" and each, an "app store").
6.3. The Services may involve links to third party sites/resources as well as ads for third parties (collectively, "third party ads"). Advertisements and other information provided by third party sites ads may not be completely accurate. The aforementioned third party ads are not controlled by the Company and the Company is not accountable for any third party ads. The Company provides these third party ads as convenience only and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party ads. You should do the necessary research investigation before proceeding with any transaction with any third party. Your transactions with third party ads that are discovered on or via the App, including payment and delivery of related goods or services, are solely between you and such merchant/advertiser. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. When you link to a third party site, the applicable service provider's terms and policies, including privacy and data gathering practices govern.
6.4. As a result of us not controlling the user content, you hereby acknowledge and agree that we are not to be held accountable for any user content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any user content, and we assume no accountability for any user content. Every user of the Services is solely accountable for any and all his/her user content. The interactions you have with other Services users are solely between you and the other such Services user, to which you agree the Company will not be held accountable for any damage or loss incurred as the result of any such interactions. We are under no legal obligation to become involved if there is a dispute between you and any Services user.
6.5. You agree to release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of any App Store, any other Services users, or any third party ads.
7. Subscription fees and payment
7.1. There is no charge to download the App, however, please not that some aspects of the Services are available on a subscription basis for a fee. You will pay in App Store the relevant fees (and any related taxes) as they become due.
7.2. To the maximum extent allowed by relevant legislation, we may alter subscription fees at any time. Reasonable notice of any pricing alterations will be given to you by posting the updated prices on or via the app and/or by sending you an email notification. If you do not accept the updated fees, you can cancel the applicable subscription before the changes go into effect.
7.3. You allow the app stores to charge the applicable fees to the payment card that you provide.
7.4. Through signing up for certain subscriptions, you consent to the fact that your subscription may be renewed automatically. The duration of auto-renewal will be the exact same as your initial subscription duration providing not otherwise disclosed to you on the Services. You authorize the app stores to charge you for the renewal term unless you cancel your subscription. The renewal rate, unless we notify you of a rate change prior to your auto-renewal, will be no more than the rate for the immediately prior subscription duration, excluding any promotional and discount pricing. Cancellation of your subscription must be done in accordance with the cancellation procedures disclosed to you for the particular subscription. Fees will not be refunded that may have accrued to your account and will not prorate fees for a cancelled subscription.
7.5. A free trial subscription for the Services may be offered. We reserve the right to limit your ability to take advantage of numerous free trials. Free trial provides you access, with details specified when you sign up for the offer, to the Services for a period of time. A reminder may be sent regarding when your free trial is about to end, but we do not make a guarantee any such reminder. Unless you cancel before the completion of the free trial, or unless stated otherwise, your access to the Services will continue automatically and you will be billed the applicable charge for the Services. Ultimately, it is your responsibility to know when the free trial concludes. We reserve the right, in our absolute discretion, to alter or terminate any free trial offer, your access to the Services during the free trial, or any of these Terms without notice and with no liability.
7.6. If you do not pay the fees or charges due, reasonable efforts may be made by us to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Services without notice. The end of the paid period of your subscription is when your right to use the Services expire.
7.7. Subscriptions purchased via an app store are subject to the refund policies of such app store, which means refunds cannot be granted by us. You will have to contact an app store support.
8. User representations and restrictions
8.1. Through use of the Services, you represent and warrant that:
8.1.1. You are 16 or over years of age;
8.1.2. You have the legal capacity and you agree to comply with these terms;
8.1.3. You will not access the Services through automated or non-human means, whether through a bot, script or otherwise;
8.1.4. The Services will not be used by you for any illegal or unauthorized purpose;
8.1.5. You are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a country that is "terrorist supporting";
8.1.6. You are not listed on any U.S. government list of prohibited or restricted parties; and
8.1.7. Your use of the Services will not be in violation of any applicable legislation or regulation.
8.2. If you submit any information that is untrue, inaccurate, not current, or incomplete, we have the right to refuse any and all current or future use of the Services (or any portion thereof).
8.3. The Services may not be used in relation to any commercial activities except those that are specifically endorsed or approved by us. You may not access or use the Services for any purpose other than that for which we make the Services available.
8.4. Further, you agree not to:
8.4.1. Make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Services;
8.4.2. Make any unauthorized use of the Services;
8.4.3. Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
8.4.4. Use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Services;
8.4.5. Make the Services available over a network or other environment permitting access or use by multiple devices or users simultaneously;
8.4.6. Use the Services for creating a product, Services, or software that is, directly or indirectly, competitive with or in any way a substitute for the Services;
8.4.7. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services;
8.4.8. Circumvent, disable, or otherwise interfere with security-related features of the Services;
8.4.9. Engage in unauthorized framing of or linking to the Services;
8.4.10. Interfere with, disrupt, or create an undue burden on the Services or the networks or Services connected to the Services;
8.4.11. Use the Services for any revenue generating activity, commercial enterprise, or other purpose for which it is not designed or intended;
8.4.12. Attempt to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services;
8.4.13. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services;
8.4.14. Use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or using or launching any unauthorized script or other software;
8.4.15. Use the Services to send automated queries to any website or to send any unsolicited commercial e-mail;
8.4.16. Upload or distribute in any way files that contain viruses, worms, trojans, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
8.4.17. Use the Services in a manner inconsistent with any applicable legislation or regulations; or
8.4.18. Otherwise infringe these terms.
IN ADDITION TO CIVIL PENALTIES, ANY UNAUTHORISED USE OF THE APP/WEBSITE MAY BE TREATED AS A CRIMINAL OFFENCE UNDER UK COMPUTER MISUSE ACT 1990, 18 U.S. CODE § 1030 AND/OR OTHER APPLICABLE CRIMINAL LEGISLATION.
9. No warranties
The App, content and other aspects of the Services are provided "as is" and "as available". The App, content and other aspects of the Services are provided without representation or warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, integration, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. The company and its affiliates, licensors and suppliers do not warrant that: (i) the Services, content or other information will be timely, accurate, reliable or correct; (ii) the Services will be secure or available at any particular time or place; (iii) any defects or errors will be corrected; (iv) the Services will be free of viruses or other harmful components; or (iv) any result or outcome can be achieved.
10. Limitation on liability
10.1. Under no circumstances shall we (and our affiliates) be liable to you or any third party for any profits lost or any indirect, consequential, exemplary, incidental, special or punitive damages arising from these Terms or your use of, or inability to use, the Services (including the App or content), or third party ads, even if we have been advised of the possibility of such damages. Access to, and use of, the Services (including the App, content and user content), and third party advertisements are at your own discretion and risk, and you will be responsible solely for any damage to your computing system or loss of data resulting therefrom.
10.2. You agree that, notwithstanding anything to the contrary contained herein, the aggregate liability of the Company to you for any and all claims arising from the usage of the App, content or Services is limited to the amounts you have paid to the Company for access to and use of the Services. The limitations of damages set forth above are fundamental elements of the basis of the terms between the Company and you.
10.3. The above limitation or exclusion may not apply to you, as some jurisdictions do not allow the limitation or exclusion of liability for incidental of consequential damages, and you possible may also possess other legal rights that differ from jurisdiction to jurisdiction.
You hereby agree to indemnify and hold the Company, its successors, subsidiaries, affiliates, any related companies, its suppliers, licensors and partners, and the employees, agents, officers, directors, and representatives of each of them harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Services, (ii) your user content, or (ii) your violation of these Terms. At an expense which would be incurred by you, the Company reserves the right, to assume the exclusive defense and control of any circumstance for which you are obliged to indemnify us and you agree to cooperate with our defense of these claims. Reasonable efforts will be used by the Company to inform you of any such claim, action or proceeding upon being made aware of it. You agree not to settle any issue in the absence of the prior written consent of the Company.
12. Local laws
You access and use the Services at your own initiative and compliance with local laws is entirely your responsibility. The Company does not guarantee that the Services is accessible, appropriate or legally available for use in your jurisdiction. Accessing and using the Services is prohibited from territories where doing so would be illegal.
The controlling language of these Terms is English; any provided translation of these Terms is for purposes of convenience only, and the English version shall govern to the extent of any inconsistency.
14. Mandatory binding arbitration and class action waiver
DISPUTE RESOLUTION FOR CUSTOMERS OUTSIDE THE UNITED STATES
The term "Dispute" means any dispute, claim or controversy between you and Company or Company and you arising out of, or relating to, the Services, these terms or your account, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section. "Dispute" is to be given the broadest possible meaning. You agree that any Dispute between you and Company will be governed by the arbitration procedures outlined below.
If a Dispute arises between you and Company, our goal is to provide you with a neutral and cost effective means of resolving the Dispute quickly. Accordingly, you and Company agree that we will resolve any Dispute in accordance with one of the subsections below or as Company and you otherwise agree in writing.
Informal Negotiations/Notice of Dispute. You and Company agree to first attempt to negotiate any Dispute informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon receipt of written notice from one person to the other (Notice of Dispute). Notices of Dispute must:
· (a) include the full name and contact information of the complaining party;
· (b) describe the nature and basis of the claim or dispute; and
· (c) set forth the specific relief sought (Demand). Company will send its Notice of Dispute to your billing address (if you provided it to us) or to the email address you provided to us. You will send your Notice of Dispute to: firstname.lastname@example.org ATTENTION: Legal Department.
Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules:
· (a) the arbitration shall be conducted by telephone, online and/or be based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration;
· (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
In case such Dispute cannot be settled amicably through negotiations within a thirty 30-day period, and the Demand is in excess of $10,000 USD, it or they shall be shall be settled by arbitration in accordance with the International Dispute Resolution Procedures of the International Centre for Dispute Resolution (ICDR).
Each Party shall bear its own expenses, but Parties shall share equally in the expenses of the arbitration tribunal.
Parties agree that all arbitration proceedings conducted pursuant to this Section shall be kept strictly confidential, and all information disclosed in the course of such arbitration proceedings shall be used solely for the purpose of those proceedings. Any election to arbitrate by one party shall be final and binding on the other.
Restrictions. You and Company agree that any arbitration shall be limited to a Dispute between you and Company individually. To the full extent permitted by law,
(1) no arbitration shall be joined with any other;
(2) there is no right or authority for any dispute to be arbitrated on a class action-basis or to utilize class action procedures; and
(3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, 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.
DISPUTE RESOLUTION AND ARBITRATION FOR UNITED STATES CUSTOMERS.
This Section (the "US Arbitration Agreement") only applies to customers who reside in the United States of America. It applies to all disputes between you and Company. The term "Dispute" means any dispute, claim or controversy between you and Company or Company and you arising out of, or relating to, the Services, these terms or your account, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this US Arbitration Agreement. "Dispute" is to be given the broadest possible meaning. You agree that any Dispute between you and Company will be governed by the arbitration procedures outlined below.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this US Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
MANDATORY BINDING ARBITRATION. In the interest of resolving Disputes between you and Company in the most expedient and cost effective manner, you and Company agree that every Dispute will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Company ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Nothing in these terms or this US Arbitration Agreement will be deemed to waive, preclude, or otherwise limit the right of either party: (a) to bring an individual action in small claims court; (b) to seek temporary injunctive relief in a court of competent jurisdiction over the parties solely to preserve the status quo or to prevent imminent harm until an arbitrator can be empaneled in accordance with this US Arbitration Agreement and determine whether to continue, modify or terminate such relief; or (c) to seek judicial enforcement of this US Arbitration Agreement or of any arbitral award issued hereunder in any court of competent jurisdiction over the parties.
Arbitrator. All Disputes subject to this US Arbitration Agreement will be settled under the Federal Arbitration Act and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these terms and as then in effect, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the Dispute to the other party by certified U.S. Mail or by commercial express delivery (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"), in your case to the email address you have provided as part of your account. The Notice must: (a) describe the nature and basis of the claim or Dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding.
Fees. If you commence arbitration in accordance with these terms the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York City, NY, USA, but if the claim is for $100,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a telephonic hearing.
CLASS ACTION WAIVER. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, 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.
Modifications to this Arbitration Provision. If Company makes any future change to this US Arbitration Agreement, other than a change to Company's address for notice, you may reject the change by sending us written notice within 30 days of the change to Company's address for notice, in which case your account with Company will be immediately terminated and this US Arbitration Agreement, as in effect immediately prior to the changes you rejected, will survive.
Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. You and Company agree to maintain confidentiality unless otherwise required by law. This section shall not prevent a party from submitting to a court of law any information necessary to enforce these terms, to enforce an arbitration award, or to seek injunctive or equitable relief as permitted herein.
Survival of Agreement. This US Arbitration Agreement will survive the termination of your relationship with Company
Enforceability. If Section “Class Action Waiver” is found to be unenforceable or if the entirety of the Section “Arbitration Agreement”) is found to be unenforceable, then the entirety of the Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction of New York courts.
(b). RIGHT TO OPT OUT OF MANDATORY ARBITRATION AND CLASS ACTION WAIVER. You may opt out of the foregoing arbitration and class action waiver provisions of these terms by NOTIFYING Company IN WRITING WITHIN 30 DAYS OF THE DATE THAT THESE TERMS ARE EFFECTIVE UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. To opt out, you must send a written notification to Company Attn: LEGAL DEPARTMENT, email@example.com , that includes (i) your name; (ii) your address; (iii) your telephone number; (iv) your email address; and (v) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action waiver sections.
15. Governing law
15.1. The laws that govern these Terms and your use of the Services are the laws of England and Wales, excluding its conflicts of law principles.
16. Miscellaneous provisions
16.1. In exercising any of our rights, no delay or omission by us, happening upon any noncompliance or default by you with respect to these Terms will prevent any such right or be interpreted to be a waiver thereof, and a waiver by the Company of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
16.2. If any provision of these Terms, subject to section 12, is found to be invalid or not enforceable, then these Terms will continue in full effect and will be altered to be valid and enforceable while at the same time respecting the intent of the parties to the greatest possible extent permitted by law.
16.3. These Terms lay out the complete agreement between you and the Company, except as otherwise expressly provided herein, regarding its subject matter, and priority over all prior agreements or representations, whether in writing or oral, regarding such subject matter.
16.4. Under these Terms, the Company may transfer or assign any and all of its rights and obligations to any other individual, by any way, including by novation, and by accepting these Terms you give the Company consent to any such assignment and transfer. Unless otherwise is expressly indicated, you agree that providing on the Services of a version of these Terms indicating another individual as a party to the Terms shall be evident of valid notice to you of the transfer of Company's rights and obligations under the agreement.
16.5. On occasions when you communicate with us via or on the Services or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You confirm that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You acknowledge further and confirm that by clicking on a button labelled "submit", "continue", "register", "I agree" or similar links or buttons, you are submitting a legally enforceable electronic signature and are entering into a legally binding contract. You acknowledge and confirm that your electronic submissions is evidence of your agreement and intent to be bound by these terms. You hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed via the Services.
16.6. To the extent that such failure arises from factors outside the Company's reasonable control, in no circumstance shall the Company be held liable for any failure to comply with these Terms.
If you have any queries regarding the Services, or if you want to send any notice under these terms, you may contact us at: firstname.lastname@example.org.
I have read these Terms and agree to all of the provisions contained above.
Last updated: 03 September 2019