Terms of Service
THIS IS A SUBSCRIPTION SERVICE THAT AUTOMATICALLY RENEWS. PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY (IN PARTICULAR, SECTION ENTITLED “SUBSCRIPTION AND FEES”) BEFORE STARTING A FREE TRIAL OR COMPLETING A PURCHASE OF THE SERVICES (AS DEFINED BELOW). YOU MUST AFFIRMATIVELY CANCEL A SUBSCRIPTION OR A FREE TRIAL TO AVOID BEING CHARGED AT LEAST 24 HOURS BEFORE THE END OF THE RESPECTIVE FREE TRIAL OR SUBSCRIPTION PERIOD. IF YOU ARE UNSURE HOW TO CANCEL A SUBSCRIPTION, PLEASE VISIT APPLE’S SUPPORT SITE, GOOGLE PLAY HELP, OR ANY OTHER RELEVANT APP STORE SUPPORT PAGES). DELETING THE MOBILE APPLICATION DOES NOT CANCEL YOUR SUBSCRIPTION OR FREE TRIAL.
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS SITE. BY USING THIS SITE OR BY CLICKING THE CHECK BOX INDICATING THAT YOU ACCEPT THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THE TERMS OF THIS AGREEMENT.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH MOTIFY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue this Site at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. We will inform You of any modifications to these Terms by posting them on this Site and prompting You to review and accept the updated Terms the next time you log into the Site.
If You object to any such modifications, Your sole recourse shall be to cease using this Site. Continued use of this Site following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Site. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
By using this Site, You promise that You are at least 13 years of age.
In these Terms we are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Site or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Site or Materials in any manner. If You make copies of any of this Site while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Site.
If You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
We make available Mobile Applications to access the Site via a mobile device. To use the Mobile Application You must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with Your mobile device. We hereby grant to You a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by You, for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that We may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and We and Our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to Your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that We provide to You designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between You and Us only, and not with Apple, Inc. (“Apple”).
- Your use of Our iOS App must comply with Apple’s then-current App Store Terms of Service.
- We, and not Apple, are solely responsible for Our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Our iOS App.
- You agree that We, and not Apple, are responsible for addressing any claims by You or any third-party relating to Our iOS App or Your possession and/or use of Our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Us as provider of the iOS App.
- You agree that We, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Our iOS App or Your possession and use of Our iOS App.
- You represent and warrant that (i) 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 “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using Our iOS App (e.g., You must not be in violation of Your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to Your license of Our iOS App. Upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as they relate to Your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that We provide to You designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between You and Us only, and not with Google, Inc. (“Google”).
- Your use of Our Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where You obtained the Android App. We, and not Google, are solely responsible for Our Android App and the Services and Content available thereon. Google has no obligation or liability to You with respect to Our Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Our Android App.
SUBSCRIPTION AND FEES.
In order to be a registered User of the Site, You must successfully register for an account (“User Account”) with Us and You must submit the following information through the User Account registration page on this Site: (1) a working email address; (2) first and last name; (3) profile photo; (4) preferred username and password.
The Services are free to use and download. However, certain features of the Services are offered on a subscription basis for a fee. If You purchase any such features of the Services, you will have to pay an App Store the applicable fees (and any related taxes) as they become due. You authorize the respective App Store to charge the applicable fees to the payment card that you submit. To the maximum extent permitted by applicable laws, We may change subscription fees at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the Services and/or by sending you an email notification. If You do not wish to pay the new fees, You may cancel the applicable subscription prior to the change going into effect.
By signing up for subscription to the Services, you agree that your subscription may be automatically renewed. Unless You cancel Your subscription You authorize the respective App Store to charge you for the renewal term. The period of auto-renewal will be the same as Your initial subscription period unless otherwise disclosed to you on the Service. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless we notify you of a rate change prior to your auto-renewal. You must cancel Your subscription in accordance with the cancellation procedures disclosed to You for the particular subscription. We will not refund fees that may have accrued to Your account and will not prorate fees for a cancelled subscription.
We may offer a free trial subscription for the Services. Free trial provides You access to the Services for a period of time, with details specified when You sign up for the offer. Unless You cancel before the end of the free trial, or unless otherwise stated, Your access to the Services will automatically continue and You will be billed the applicable fees for the Services. We may send you a reminder when Your free trial is about to end, but We do not guarantee any such notifications. It is ultimately Your responsibility to know when the free trial will end. We reserve the right, in our absolute discretion, to modify or terminate any free trial offer, Your access to the Services during the free trial without any prior notice. We reserve the right to limit Your ability to take advantage of multiple free trial offers.
The Services, and Your right to use the Services expire at the end of the paid period of Your subscription. If You do not pay the fees or charges due, We may make reasonable attempts to notify you and resolve the issue; however, We reserve the right to disable or terminate Your access to the Services without prior notice.
Subscriptions purchased through a particular App Store are subject to such App Store’s refund policies. This means We cannot issue refunds, You have to contact the respective App Store’s support.
You are responsible for complying with these Terms when You access this Site, whether directly or through any account that You may setup through or on this Site. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of this Site. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access this Site. Should You believe Your password or security for This Site has been breached in any way, You must immediately notify Us.
By using the Site and/or the Services provided on or through the Site, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing.
User Accounts on this Site permit You to submit videos, pictures, workouts, feedback, information, data, text, software, messages, or other materials (each, a “Submission”). You agree that You are solely responsible for all of Your Submissions and that any such Submission is considered both non-confidential and non-proprietary. We do not guarantee that You will be able to edit or delete any Submission You have submitted.
By submitting any Submission, You are promising Us that:
- You own all rights in Your Submissions (including, without limitation, all rights to the reproduction and display of Your Submissions) or, alternatively, You have acquired all necessary rights in Your Submissions to enable You to grant to Us the rights in Your Submissions as described in these Terms;
- You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your Submissions;
- Your Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
- You voluntarily agree to waive all “moral rights” that You may have in Your Submission;
- Any information contained in Your Submission is not known by You to be false, inaccurate, or misleading;
- Your Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
- Your Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
- You were not and will not be compensated or granted any consideration by any third party for submitting Your Submission;
- Your Submission does not incorporate materials from a third-party Site, or addresses, email addresses, contact information, or phone numbers (other than Your own);
- Your Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
- Your Submission does not contain any information that You consider confidential, proprietary, or personal; and
- Your Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
- Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
- Use (and permit others to use) Your Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your Submission or any modification thereto, in whole or in part, into any technology, product, or service);
- Display advertisements in connection with Your Submissions and to use Your Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen Submissions or monitor any area of this Site through which Submissions may be submitted. We are not required to host, display, or distribute any Submissions on or through this Site and may remove at any time or refuse any Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any Submissions. Further, You agree that We may freely disclose Your Submission to any third party absent any obligation of confidence on the part of the recipient.
We authorize Your use of this Site only for Permitted Purposes (as set forth below). Any other use of this Site beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Site. This is because as between You and Us, all rights in this Site remain Our property.
Unauthorized use of this Site may result in violation of various United States and international copyright laws. Unless You have written permission from Us stating otherwise, You are not authorized to use this Site in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
- For any public or commercial purpose which includes use of this Site on another site or through a networked computer environment;
- In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Site;
- In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
- To stalk, harass, or harm another individual;
- To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
- To interfere with or disrupt this Site or servers or networks connected to this Site;
- To use any data mining, robots, or similar data gathering or extraction methods in connection with this Site; or
- Attempt to gain unauthorized access to any portion of this Site or any other accounts, computer systems, or networks connected to this Site, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.
THIRD PARTY CONTENT.
Certain information and content that are not Your Submissions (as defined below) may be provided by third party licensors to Us (“Third Party Content”). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. Unless You have permission from the owner of the Third Party Content, You agree to only display the Third Party Content on Your personal computer solely for Your own personal business use. You acknowledge and agree that You acquire no proprietary rights in or to the Third Party Content (which rights remain with Us and Our licensors) and have no right to download, cache, reproduce, sell, publish, use in connection with any product or service of Yours, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. The Third Party Content is provided on an “as is, as available” basis with all faults and defects. WE, ON BEHALF OF OUR SELF AND OUR LICENSORS DISCLAIMS AND EXCLUDES ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
LINKS TO THIRD PARTY WEB SITES.
The Sites may be linked to other web sites that are not Our Sites (“Third Party Web Sites”) and certain areas of the Sites may allow you to conduct transactions or purchase goods or services from or through such Third Party Web Sites. We are providing these links to you as a convenience, and We do not verify, make any representations or take any responsibility for such linked to Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, links displayed or activities conducted on such Third Party Web Sites. The Third Party Web Sites may have different privacy policies and terms and conditions and business practices than Us. Your dealings and communications through the Sites with any party other than Us are solely between You and such third party. Any complaints, concerns or questions You have relating to materials provided by third parties should be forwarded directly to the applicable third party. YOU AGREE THAT WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, RESOURCES OR CONTENT AVAILABLE THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, ADVERTISING OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference on the Sites to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise does not constitute or imply Our endorsement or recommendation.
THE SITE AND SERVICES DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE.
ALL THE MATERIALS PROVIDED ON THIS SITE ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH OR A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE. THIS SITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE IS WITH YOU.
The Materials on this Site are for informational purposes only. This Site and the Services do not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. The Materials are not intended to be a substitute for professional medical advice, diagnosis, or treatment. We do not represent or warrant that any particular service, workout, product, test or procedure is safe, appropriate or effective for You.
If You think You may have a medical emergency, call Your doctor or 911 immediately. We do not recommend or endorse any specific tests, physicians, health care providers, products, services, procedures, opinions, or other information that may be mentioned on the Site. Reliance on the Materials or any information provided by Us, Our employees, others appearing on the Site at Our invitation, or other third parties on the Site is solely at Your own risk.
“Motify” is a trademark that belongs to Us. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Site are Our sole property, Copyright © 2019, MC MOTIFY CORPORATION LIMITED. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing Submissions that violate intellectual property rights of others, suspending access to this Site (or any portion thereof) to any user who uses this Site in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the this Site in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of this Site, please provide written notice to Our Agent for notice of claims of infringement:
Attn: DMCA Agent
MC MOTIFY CORPORATION LIMITED
To be sure the matter is handled immediately, Your written notice must:
- Contain Your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
- Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
- Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in Our sole discretion, to terminate the account or access of any user of this Site or Service who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THIS SITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS SITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE SITE IS FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that this Site will meet Your requirements or that this Site will be uninterrupted, timely, secure, or error free or that defects in this Site will be corrected. We make no warranty as to the results that may be obtained from the use of this Site or as to the accuracy or reliability of any information obtained through this Site. No advice or information, whether oral or written, obtained by You through this Site or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
LIMITATION OF LIABILITY.
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL MOTIFY’S LIABILITY EXCEED $100.
LOCAL LAWS; EXPORT CONTROL.
We control and operate this Site from Our headquarters in the United States of America and the entirety of this Site may not be appropriate or available for use in other locations. If You use this Site outside the United States of America, You are solely responsible for following applicable local laws.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at firstname.lastname@example.org the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at email@example.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either Delaware or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Site. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.
Certain violations of these Terms, as determined by Us, may require immediate termination of Your access to this Site without prior notice to You. The Federal Arbitration Act, Delaware state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in New Castle County, Delaware. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforced any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Site. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at firstname.lastname@example.org.