Effective January 1, 2021
Otion, Inc. ("we", "us," "our") distributes Prime Intermittent Fasting mobile application (the "App") and that content is available through the App, our emails, and our notifications (the "Content"). The App, together with the Content, tools, features, functionality, and other information and services including, without limitation, viral, embeddable, or application/device-based features and related technology, accessed via the Internet, mobile or other device are collectively referred to as the "Service".
2/ Acceptance of Terms and Conditions (the "Terms")
If you do not accept these Terms or if you are not authorized or eligible to be bound by them, you may not download our App, and access and use our Service. Your continued use of the App and the Service manifests your acceptance of these Terms, as revised from time to time.
4/ No Medical Advice
We offer our App for your educational and entertainment purposes only, and in no way intended to diagnose or treat any medical condition. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical or healthcare advice via the Service, including any advice relating to nutrition, weight loss, or wellness. In particular, you understand and expressly agree that the recommendations that you may receive through the "Insights" section of our App or via the in-app chat or messaging are for informational purposes only, are not medical or healthcare advice, and you may rely on such recommendations only at your own risk. You should always seek the advice of a licensed physician regarding any medical conditions you may have. The Service may not be appropriate for everyone, and you should consult with a qualified healthcare expert to determine whether the Service would be safe and effective for you. You hereby confirm that you are solely responsible for your state of health. You acknowledge that your diet and exercise activities involve risks, including the risk of bodily injury or death, and that you assume all those risks.
5/ Eligibility to Use the App
When you download and access the App, you will be asked to create an account. This process includes selecting a screen name and providing certain information about you. When creating an account, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) your use of the Service does not violate any applicable law or regulation or these Terms; (c) you have the legal capacity and you agree to comply with these Terms; and (d) you are at least 18 years of age (or legal age in your jurisdiction) or have received parental consent and supervision when using the Service and your parent or legal guardian also agrees to be bound by these Terms and agrees to be responsible for your use of the Service.
Our App is not for persons under the age of 16. If you are under 16 years of age, then please do not use the App.
By using the Service, you agree to receive certain communications, such as updates about the App, reminders, or healthy tips, or a periodic e-mail newsletter from the Company. You can opt-out of non-essential communications by firstname.lastname@example.org.
We reserve the right to suspend or terminate your account and your use of the App and the Service in the event you breach these Terms.
6/ Intellectual Property
The App contains trademarks and service marks owned by us or other third parties. Unless specifically noted that such trademarks or service marks belong to a third party, we own all trademarks and service marks displayed in the App, whether registered or unregistered, including but not limited to, the name Prime Intermittent Fasting, our logo, our design patterns, and our other graphics, the App trade dress, and other indicia of origin of Prime Intermittent Fasting services. The use of our intellectual property is strictly prohibited unless we have granted our prior written consent.
The content of the App, including text, graphics, logos, button icons, images, data compilations, and any other works of authorship, both individually and as they are compiled on the App (the "Content"), and software used on this App, are the property of Otion, Inc. or third parties, and are protected by copyright and other the United States and foreign intellectual property and related laws, rules, and regulations. The Content includes both materials owned or controlled by Otion, Inc. ("Prime Intermittent Fasting Content"), and material owned or controlled by third parties and licensed to Prime Intermittent Fasting, including User Content (as described below). Any use of the Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. You agree to abide by all copyright notices, information, or restrictions contained in or attached to any of the Content.
7/ License Grant
We hereby grant you a worldwide, non-exclusive, non-transferable, non-sublicensable, and revocable license to install the App, solely on your own handheld mobile device (e.g., iPhone, Android, etc. as applicable) and to use the App and the Service and the Content subject to your eligibility and your continued compliance with these Terms and solely for your personal, non-commercial purposes. We are not responsible to ensure and disclaim any responsibility for, your ability to open, use or view the Content we provide. As between you and us, we retain all rights, titles and interest in and to the Content (other than your own User Content), and all related intellectual property rights. We reserve all rights not granted in these Terms.
8/ User Content
As a user of the App ("User"), you may enter your data, post content, chat with our representative, publish, submit or transmit your comments, reviews, opinions, testimonials, and other content ("User Content"). We do not guarantee any confidentiality with respect to any User Content. You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent, and warrant that:
(a) you own or have the necessary permissions to your User Content to enable use of the User Content in the manner contemplated by these Terms;
(b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content, will infringe, misappropriate or violate a third party's patent, trademark, trade secret, copyright or other proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; and
(c) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of such person.
For clarity, you retain all of your ownership rights in your User Content. By submitting your User Content to the App, you hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to (and to allow others acting on our behalf to) access, view, use, reproduce, adapt, modify, distribute, sell, stream, broadcast, prepare derivative works of, publicly display, publicly perform and otherwise exploit such User Content in connection with the Service and our business, including without limitation for promoting and redistributing part or all of the App (and derivative works thereof) in any and all media formats and through any and all media channels.
We neither endorse the content of your communications, postings, or data, nor assume any responsibility for any threatening, libelous, obscene, harassing, or offensive material contained in such materials or any crime facilitated by use of the App.
9/ User Feedback
We are always happy to hear from our Users and are grateful for your comments and suggestions how to improve our Service. The following policy applies to all third party submissions of ideas, comments, suggestions, improvements, proposals or materials: (a) all submissions are non-confidential and non-proprietary; (b) we will not be liable for any use or disclosure of any submission; and (c) we can use the submission for any purpose whatsoever, commercial or otherwise, without compensation to the submitting person.
10/ Prohibited Activities
By accessing and using the App, you agree that you will not use the App and the Service for any unlawful or prohibited purpose. You may not attempt, through any means, to gain unauthorized access to any part of the App or the Service, other accounts, computer system, or network connected to our server. We reserve the right, in our sole and absolute discretion, to monitor any and all use of the App and remove any User Content at any time.
Without limiting the foregoing, you will not use the App and the Service to:
(a) post or otherwise transmit any User Content that (i) is unlawful, false, misleading, inaccurate, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or that encourages conduct that would be considered a criminal offense, give rise to civil liability, or is otherwise objectionable; (ii) depicts or advocates the use of illicit drugs; (iii) makes use of offensive language or images; (iv) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (v) poses or creates a privacy or security risk to any person; (vi) infringes any intellectual property or other proprietary rights of any party; (vii) are "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (viii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (ix) in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose us or other users to any harm or liability of any type;
(b) violate any applicable local, state, national, international or other law or regulation, or any order of a court, including without limitation, rules about intellectual property rights, the Internet, technology, data, email or privacy;
(c) access the App and the Content from territories where it is illegal or strictly prohibited;
(d) interfere with, disrupt or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
(e) use the Service to transmit, distribute, post or submit any information concerning any other person without their permission;
(f) harvest or collect email addresses or other contact information of other Users by electronic or other means without their consent;
(g) "stalk" or harass any other User or collect or store any information about any other User;
(h) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service;
(i) register for more than one user account or register for a user account on behalf of an individual other than yourself;
(j) transfer or sell your account and/or username to another party;
(k) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
(l) use automated scripts to access, search collect information or otherwise interact with the Service (including without limitation robots, spiders or scripts) or use any robot, spider, other automatic devices, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the App or the Content contained on any such web page for commercial use without our prior express written permission;
(m) other than with respect to your own User Content, (i) use, reproduce, duplicate, copy, sell, resell or exploit the Content; (ii) compile a collection of Content, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise; or (iii) otherwise remove any text, copyright or other proprietary notices contained in the Content;
(n) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the extent applicable laws specifically prohibit such restriction;
(o) modify, translate, or otherwise create derivative works of any part of the Service; or
(p) advocate, encourage or assist any third party in doing any of the foregoing.
11/ Third Parties
These Terms apply only to the App and the Service. In using the Service, you may be exposed to content and information, for example, data, text, files, information, usernames, graphics, images, photographs, profiles, audio, video, messages, services or links, from other users or third parties such as producers ("Third-Party Content"), either in the App or through links to third-party websites or mobile applications. Because we do not review, monitor, operate or control any such Third-Party Content, you acknowledge and agree that we are not responsible for the availability of such websites or mobile applications and do not endorse and are not responsible or liable, directly or indirectly, for any content, advertising, products, services or other materials on or available from such websites or mobile applications. We make no guarantees, representations or warranties as to, and shall have no liability for, any content delivered by any third party, including, without limitation, the accuracy or subject matter of any content, or the use of any personal information you provide to any such website. You acknowledge and agree that use of such links is entirely at your own risk. We may discontinue links to any other website or mobile applications at any time and for any reason.
12/ Subscription fees and payment
Although the App is free to download, its Service is offered on a subscription basis for a fee. You agree to pay an App Store the applicable fees (and any related taxes) as they become due and you hereby authorize them to charge the applicable fees to the payment card you provide. We reserve the right to 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 App and/or by sending you a notification. If you do not wish to pay the new fees, you can cancel the applicable subscription prior to the change going into effect.
Further, you agree that your subscription will be automatically renewed unless you cancel prior to 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. We will not refund fees that may have accrued to your account and will not prorate fees for a canceled subscription.
We may offer a free trial subscription for the Service. The free trial provides you access to the Service 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 Service will automatically continue and you will be billed the applicable fees for the Service. 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 Service during the free trial, or any of these terms without notice and with no liability. We reserve the right to limit your ability to take advantage of multiple free trials.
The Service and your rights to use it 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 efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Service (and may do so without notice).
Subscriptions purchased via an App Store are subject to such App Store's refund policies. This means we cannot grant refunds. You will have to contact App Store support.
13/ Disclaimer of Warranties
THE APP AND THE SERVICE ARE PROVIDED ON AN "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS AND, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OTION, INC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR APP AND THE SERVICE, INCLUDING RELIANCE ON ANY RECOMMENDATIONS AND INFORMATION THAT IS PROVIDED AS PART OF THE SERVICE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE SERVICE YOU OBTAIN THROUGH OUR APP WILL MEET YOUR EXPECTATIONS AND REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, WILL BE AVAILABLE FOR USE, WILL BE OF A CERTAIN QUALITY, THAT DEFECTS WILL BE CORRECTED, THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APP OR THE TECHNOLOGY THAT MAKES IT AVAILABLE ARE IMMUNE TO HACKER ACTIVITY, ELECTRONIC OR NON-ELECTRONIC TAMPERING, COMPUTER CRIME OR THEFT. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP AND THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE. WE MAKE NO GUARANTEES CONCERNING THE LEVEL OF SUCCESS YOU MAY EXPERIENCE, AND YOU ACCEPT THE RISK THAT RESULTS WILL DIFFER FOR EACH INDIVIDUAL.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE INFORMATION POSTED BY USERS IN THE APP.
Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.
14/ Limitation of Liability
IN NO EVENT SHALL OTION, INC. (FOR PURPOSES OF THIS SECTION, "OTION, INC." OR "WE" INCLUDES OUR EQUITY HOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS, REPRESENTATIVES, AND AFFILIATES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE APP OR THE SERVICE OR WITH THE DELAY OR INABILITY TO USE THE APP OR THE SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OF INFORMATION THROUGH THE APP, BODILY INJURY OR EMOTIONAL DISTRESS, COMPUTER VIRUS, OR DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR MISUSE OF ANY RECORD OR DATA. WE DO NOT ASSUME ANY LIABILITY FOR INACCURACIES OR MISSTATEMENTS ABOUT THE DIET, FOOD RECIPES, EXERCISES, OR OTHER CONTENT ON THE SERVICE. THE COMPANY DISCLAIMS ANY LIABILITY FOR LOSS IN CONNECTION WITH THE CONTENT PROVIDED ON THE SERVICE. YOU ARE ENCOURAGED TO CONSULT WITH YOUR DOCTOR AND OTHER RELEVANT PROFESSIONALS WITH REGARD TO THE INFORMATION CONTAINED ON OR ACCESSED THROUGH THE SERVICE.
IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE APP OR THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AMOUNT OF $100.
Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.
To the fullest extent permitted by law, you release us, our subsidiaries and affiliated companies, and their respective officers, employees, directors, contractors, and agents from any and all responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following: (i) your use of the App and the Service; (ii) disputes between Users, including those between you and other Users; (iii) User Content or Third Party Content; (iv) claims relating to the unauthorized access to any data communications or content stored under or relating to your account, including unauthorized use or alteration of such communications or your User Content.
You agree to defend, indemnify and hold harmless IntermittentFastingApp, our subsidiaries and affiliated companies, and their respective officers, employees, directors, contractors and agents, from and against any and all claims, causes of actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including attorneys' fees) and all amounts paid in a settlement arising out of, connected with, or accruing from (a) your access to and use of the App, the Service, and the Content; (b) your violation of these Terms, (c) your violation of any applicable law; (d) your User Content, or (e) your interaction with any other User. We may assume the exclusive defense and control of any matter for which you have agreed to indemnify us and you agree to assist and cooperate with us in the defense or settlement of any such matters.
17/ English Language
In the event of a conflict between these Terms and a foreign language version of these Terms, the English language version will govern. All disputes, claims and causes of action (and related proceedings) will be communicated in English.
18/ International Use
We do not represent or warrant that the App, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access and download the App do so on their own initiative and at their own risk and are responsible for complying with all local laws, rules, and regulations, including laws regulating the export of data. We may limit the availability of the App, in whole or in part, to any person, geographic area, or jurisdiction that we choose, at any time and at our sole discretion. Accessing and downloading the App is prohibited from territories where the App's Content is illegal.
You represent and warrant that you are in compliance with all laws, restrictions, and regulations administered by the Office of Foreign Assets Control ("OFAC") or any other Governmental Entity imposing economic sanctions and trade embargoes ("Economic Sanctions Laws") against designated countries ("Embargoed Countries"), entities and persons (collectively, "Embargoed Targets"). You represent and warrant that you are not an Embargoed Target or otherwise subject to any Economic Sanctions Law. You agree to comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, you agree not to (a) directly or indirectly export, re-export, transship or otherwise deliver any products, services, technology or information of any portion thereof to an Embargoed Target or (b) broker or otherwise facilitate any transaction in violation of any Economic Sanctions Laws.
19/ Right to Discontinue Services; Termination
We may, in our sole discretion and without liability to you or to any third party, with or without cause, with or without notice, suspend or discontinue, temporarily or permanently, the App and the Service (or any part thereof) and, if you breach these Terms, suspend or terminate your account. Termination may result in the forfeiture and destruction of all information associated with your account. We may retain your account information after you terminate in accordance with our regulatory, accounting, and legal compliance procedures. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR TERMINATION OF YOUR ACCESS TO THE APP OR THE SERVICE IF YOU BREACH THESE TERMS. All provisions of these Terms that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
20/ Copyright Notice Policy
A. Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the App infringe your copyright, you may request removal of those materials (or access to them) from the App by submitting written notification to our Copyright Agent at the address or email listed in Part C below. Please note that if you knowingly materially misrepresent that certain material or activity on the App is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
B. Counter-Notice by Accused Member
If you are a User and we have taken down your User Content due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication (a "Counter-Notice") to our Copyright Agent, at the email listed in Part C below. The Counter-Notice must include the following information:
A physical or electronic signature of the accused party.
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 made under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
The User's name, address, and telephone number, and a statement that the User consents to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if the User's address is outside of the United States, for any judicial district in which the service provider may be found, and that the User will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
Remember that even though we process DMCA Notice and the Counter-Notice, we do not adjudicate these disputes. The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
C. Agent for Notices
Please send all notices required by this policy to our Copyright Agent at:
c/o Otion, Inc.
E-mail address: email@example.com
D. Information for the Users
If your User Content is subject to the DMCA Notice, you will receive a notification from us explaining the status of your User Content and the next steps. Any material that is subject to the DMCA Notice will be removed until the dispute is resolved or the DMCA process is complete.
E. Termination of Repeat Infringers
In appropriate circumstances, we will terminate the accounts of Users who are repeat copyright infringers.
F. Revision of Policy
We may revise this policy at any time, including by posting a new version on our website.
21/ No Legal Advice
Nothing contained in these Terms or the Service constitutes legal advice. If you have any questions regarding your legal rights and legal obligations, you should consult with your attorney.
22/ Statute of Limitations
23/ BINDING ARBITRATION AGREEMENT AND CLASS WAIVER DISCLOSURE
Pre-Filing Mediation. In the event of a dispute, prior to initiating an arbitration, the party asserting the claim must first send to the other, by overnight courier, a written Notice of Claim ("Notice"). If you are the claimant, the Notice to Us must be addressed by emailing firstname.lastname@example.org. If we are the claimant, the Notice must be sent to the address we have on file for you in your Account. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court, as appropriate.
Additional Arbitration Provisions:
(a) Settlement Offers: During the arbitration, the amount of any settlement offer made by you or Us shall not be disclosed to the arbitrator.
(b) Initiating A Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org
. Alternatively, you may contact the arbitration administrator by calling 1-800-778-7879 or writing to the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271.
(c) Fees for Initiating Arbitration: If you are required to pay a filing fee to initiate arbitration after We receive notice of the initiation of arbitration, We will promptly reimburse you for your payment of the filing fee at the address provided in the Notice, unless your claim is for greater than US$10,000.
(d) Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association (the "AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org
, by calling the AAA at 1-800-778-7879 or writing to the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement.
(e) Location of Hearing: Unless you and We agree otherwise, any arbitration hearings will take place in New York, New York. If your claim is for US$10,000 or less, we agree you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
(f) Class Waiver: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and We agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by any individual, then the entirety of the arbitration provision set forth herein shall be null and void.
(g) Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party's individual claim.
(h) Small Claims Procedure Alternative: Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such a program) as an alternative to proceeding with arbitration.
Opt-Out Provision. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST USE, OR ATTEMPT TO USE, THE SERVICE BY WRITING TO email@example.com OR TO THE ARBITRATION NOTICE ADDRESS. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE OPTING OUT AND CONTAINING ENOUGH DETAILS ABOUT YOU FOR US TO BE ABLE TO IDENTIFY YOU WITHIN THIRTY (30) DAYS. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT-OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THESE TERMS.
(a) Reservation of Rights. We reserve all rights not expressly granted by these Terms.
(b) Material Terms. You acknowledge and agree that the binding arbitration agreement and the class action waiver, as well as warranty disclaimers and liability and remedy limitations in these Terms, are material terms of these Terms and that they have been taken into account in the decision by us to provide the App.
(c) Severability. If any term or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, that term or provision will be deemed modified to the extent necessary to render such term or provision enforceable, and the terms and conditions hereunder will be construed and enforced accordingly, preserving to the fullest permissible extent the intent of these Terms.
(d) Assignment; Waiver. You may not transfer, assign or delegate any of your rights, obligations or privileges hereunder; we may do so at any time. Any assignment of the foregoing other than as provided for in this section shall be null and void. We may transfer or assign any and all of its rights and obligations under these Terms to any other person, by any way, including by novation. No waiver of any provision or any right granted hereunder will be effective unless set forth in a written instrument signed by the waiving party. No waiver by either party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default.
(e) Complete Agreement. These Terms, including any references mentioned and incorporated herein, together with such changes as may be subsequently made by we, constitute the complete agreement between you and us, our subsidiaries, affiliated companies, licensors, and those third parties assisting in the operation of the App with respect to the subject matter of these Terms and supersedes all prior agreements and understandings, written or oral. these Terms may not be amended by the Users. These Terms supersede any previous quotations, correspondence, or other communications, written or oral, between you and us. In no event shall we be liable for any failure to comply with these Terms to the extent that such failure arises from factors outside of our reasonable control.
(f) Electronic Communications. All information communicated as part of the Service is considered electronic communication. When you communicate with us through the App or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree 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 further acknowledge and agree that by clicking on a button labeled "SUBMIT", "CONTINUE", "REGISTER", "I AGREE" or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute 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 THROUGH THE SERVICE.
If you have any questions or concerns regarding these Terms, you may contact us by e-mail at firstname.lastname@example.org.
I HAVE READ THESE TERMS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.