THESE TERMS AND CONDITIONS (THESE "TERMS") ARE A LEGAL CONTRACT BETWEEN YOU AND FIT3D, INC. ("FIT3D", "WE" OR "US"). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: HTTP://WWW.FIT3D.COM AS WELL AS ALL ASSOCIATED SITES PROVIDED BY FIT3D, ITS SUBSIDIARIES AND AFFILIATED COMPANIES THAT ARE LINKED TO HTTP://WWW.FIT3D.COM (COLLECTIVELY, THE "SITE"). BY USING THE SITE, YOU ARE AGREEING TO THESE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITE, ANY SERVICES AVAILABLE THROUGH THE SITE ( "SERVICES") OR ANY INFORMATION CONTAINED ON THE SITE.
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 FIT3D. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
FIT3D may make changes to the Site and/or Services at any time. FIT3D can change, update, or add or remove provisions of these Terms, at any time by posting the updated terms on the Site and, if you are a current Member (as defined below), emailing you at the email address associated with your registered account. By using the Site after FIT3D has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services.
By using the Site, you represent that you are 18 years of age or older, that you are between the ages of 13 and 18 and using the Site with the permission of your parent or legal guardian, or that you are an emancipated minor between the ages of 13 and 18. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless FIT3D if your child breaches or disaffirms any term or condition of these Terms. If you are using the Site on behalf of a company, you represent that you are authorized to legally bind the company to these Terms.
If FIT3D believes that you do not meet any of these requirements FIT3D may immediately terminate your use of the Site and/or Services.
FIT3D provides content and Services through the Site that are the copyrighted and/or trademarked work of FIT3D, FIT3D's third-party licensors and suppliers, or other users of the Site (collectively, the "Materials"). Materials may include logos, graphics, video, images, software and other content.
FIT3D hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use the Site solely for your personal use. Except for the foregoing license, you have no other rights in the 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 the Site or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
USING THE SITE AND THE SERVICES ON THE SITE
You need not register with FIT3D to simply visit and view general information on the Site. However, in order to access certain password-restricted areas of the Site and to use the Services (including, but not limited to, accessing and tracking measurements taken by FIT3D's 3D Body Imaging System), you must register with FIT3D for an account and receive a password.
The Materials found on the Site and Services are for informational purposes only and are not intended to replace the relationship between you and your physician or other medical provider. FIT3D is not a licensed medical care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You should always consult a physician before starting a fitness program, changing your diet or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Site and/or Services. You should consult with your physician before following any training instructions you receive through the Site and/or Services, or participating in any event announced on or through the Site and/or Services. Not all exercises or activities described on the Site and/or Services are suitable for everyone. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. People who have Type 1 diabetes or other adverse medical or nutritional conditions should not use the Services unless such use is directed and closely monitored by a physician. By using the Services, you represent that you have received consent from your physician to participate in the programs, workouts, and exercises described on the Services.
PASSWORD RESTRICTED AREAS OF THE SITE
If you desire to register for an account with FIT3D, you must submit the following information through the account registration page on the Site: name, password, email address, phone number, weight, height and gender. You will also have the ability to provide additional optional information, such as: ethnicity, general physical activity level, and nutrition quality and quantity. In order to use our 3D Body Imaging System and have the your avatar and measurements automatically uploaded into the Service, you must also have electronically agreed to our Waiver and Release when you first used the 3D Body Imaging System. This optional information is not required to register for an account but may be helpful to FIT3D in providing you with more a more customized experience when using the Site or its Services. Once you have you have submitted your account registration information, FIT3D administrator shall have the right to approve or reject the requested registration, in FIT3D administrator's sole discretion. If your account is approved by FIT3D administrator, you will be sent an e-mail that contains a verification link. Once you have followed the link and have been validated, you will be able to log-on to the Site and access the Services with your username and the password you chose during registration (the "Password").
You are responsible for maintaining the confidentiality of your Password and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify FIT3D if your Passwords is lost, stolen, if you are aware of any unauthorized use of your Password, or if you know of any other breach of security related to the Site and/or the Services.
All the information that you provide when registering for an account and otherwise through the Site or Services must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
Once your account registration request has been accepted by FIT3D, you become a "Member" with access to certain password-restricted areas of the Site and to use certain Services and Materials offered on and through the Site (a "Membership"). Each Membership and the rights and privileges provided to a Member is personal and non-transferable.
If applicable, the fee that we will charge you for your Membership will be the price posted on the Site on the date that you register as a Member. FIT3D reserves the right to change prices for Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases. All sales and payments of Membership fees will be in US Dollars.
When you first create an account, your Membership will be classified as a "Healthier You Account". There is no fee to sign up for a General Account. To access FIT3D's premium services, you must upgrade to one of our "Healthier You Premium Accounts". A description of the functionality and benefits available with our Premium Accounts, and the fees and requirements to upgrade will be posted on the Site when such Premium Accounts are made available. Applications for certain Premium Accounts may require you to provide FIT3D additional information about yourself or your business.
FIT3D may, in its discretion, introduce new or additional Premium Accounts, fees and/or requirements therefor, including without limitation, changing the requirements you must satisfy in order to register for Premium Accounts. FIT3d will post any changes on the Site, and such changes will be effective as of their posting.
IMPORTANT NOTICE: DEPENDING ON THE OPTION YOU SELECT WHEN YOU CREATE YOUR ACCOUNT, FIT3D WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP ON EACH MONTHLY, BI-ANNUAL OR YEARLY ANNIVERSARY OF THAT DATE THAT YOU REGISTERED WITH FIT3D OR THAT FIT3D FIRST CHARGED YOUR PAYPAL ACCOUNT OR CREDIT CARD FOR THE FIRST MEMBERSHIP FEE AND, IF APPLICABLE, FIT3D WILL CHARGE YOUR PAYPAL ACCOUNT OR CREDIT CARD FOR THE APPLICABLE RENEWAL MEMBERSHIP FEE (UNLESS YOU CANCEL PRIOR TO THE ANNIVERSARY DATE). YOU EXPRESSLY AGREE THAT FIT3D MAY CHARGE YOUR PAYPAL ACCOUNT AND/OR CREDIT CARD AT REGULAR INTERVALS FOR THE REMAINDER OF THE TERM OF THESE TERMS. YOU MAY CANCEL YOUR MEMBERSHIP AT ANY TIME BY CONTACTING FIT3D AT INFO@FIT3D.COM. FIT3D REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR MEMBERSHIP CANCELLATION REQUEST. IF YOU CANCEL YOUR MEMBERSHIP, YOU WILL ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MEMBERSHIP TERM FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT YEARLY MEMBERSHIP TERM.
If you purchase any goods or services from the Site or register for a Premium Account, you agree to pay all fees or charges to your account based on FIT3D's fees, charges, and billing terms in effect as shown on [www.fit3d.com/premium/about]. If you do not pay on time or if FIT3D cannot charge your credit card, PayPal or other payment method for any reason, FIT3D reserves the right to either suspend or terminate your access to your account and the Site and terminate these Terms. You are expressly agreeing that FIT3D is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with the Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that FIT3D may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
By using the Site and/or the Services, you consent to receiving electronic communications from FIT3D. 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. These electronic communications are part of your relationship with FIT3D. 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.
THIRD PARTY CONTENT
Certain Materials that are not Submissions (as defined in "Submissions" below) may be provided by third party licensors and suppliers to FIT3D ("Third Party Content"). Such Third Party Content is, in each case, the copyrighted work of the creator/licensor. You acknowledge and agree that you have no right to download, cache, reproduce, 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 and You agree to use such Third Party Content pursuant to the licenses of such Third Party Content. FIT3D DISCLAIMS 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 SITES
From time to time FIT3D may conduct promotions, including, but not limited to, sweepstakes, raffles and contests (collectively, "Promotions"). If we conduct a Promotion, the terms, conditions and rules for that Promotion ("Promotion Rules") may be posted on the Site and, for purposes of each Promotion in which you participate, will be deemed incorporated by reference into these Terms (and therefore a part of your agreement with FIT3D). To the extent there is a conflict between these Terms and the Promotion Rules for a specific Promotion, the Promotion Rules will control but only with respect to, and to the extent of, the specific conflicting term and that specific Promotion.
You are responsible for the information, opinions, messages, event postings, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site and/or Services (each a "Submission"). You may not upload, post or otherwise make available on the Site or Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and approriateness.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through the Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the "Unauthorized Activities" paragraph below. Those prohibitions do not require FIT3D to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using the Site and/or the Services, you agree not to:
Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits children or minors or that depicts cruelty to animals.
Post any copyrighted or trademarked materials without the express permission from the owner.
Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on the Site.
This list of prohibitions provides examples and is not complete or exclusive. FIT3D reserves the right to (a) terminate access to your account, your ability to post to the Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that FIT3D determines is inappropriate or disruptive to the Site or to any other user of the Site and/or the Services. FIT3D may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at FIT3D's discretion, FIT3D will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site or on the Internet.
Unauthorized use of any Materials or Third Party Content contained on the Site may violate certain laws and regulations.
You agree to indemnify and hold FIT3D and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) FIT3D or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Site or the Services or the use of the Site and/or the Services by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
All trademarks, names and logos on the Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Site and in the Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of FIT3D. 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
FIT3D respects the intellectual property rights of others, and we ask you to do the same. FIT3D may, in appropriate circumstances and at our discretion, terminate service and/or access to the Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide FIT3D's designated agent the following information:
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 and/or trademarked work claimed to have been infringed, or, if multiple 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 at the Site, and information reasonably sufficient to permit FIT3D to locate the material.
Information reasonably sufficient to permit FIT3D to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
FIT3D's agent for notice of claims of copyright or trademark infringement on the Site can be reached at the following address:
ATTN: Greg Moore Fit3D, Inc., 585 Broadway St. Redwood City, CA 94063
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
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 valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to FIT3D's designated agent that includes all of 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 FIT3D 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
FIT3D reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES
Your use of the Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by FIT3D, and they may include inaccuracies or typographical or other errors. FIT3D does not warrant the accuracy of timeliness of the Materials contained on the Site. FIT3D has no liability for any errors or omissions in the Materials, whether provided by FIT3D, our licensors or suppliers or other users.
FIT3D, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FIT3D DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE. YOU UNDERSTAND THAT FIT3D DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. FIT3D MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR ANY SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. TO THE EXTENT THAT DATA IS BEING TRANSMITTED OVER THE INTERNET HEREUNDER, YOU ACKNOWLEDGE THAT FIT3D HAS NO CONTROL OVER THE FUNCTIONING OF THE INTERNET, AND FIT3D MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PERFORMANCE OF THE INTERNET.
LIMITATION OF LIABILITY
FIT3D SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SITE. IN NO EVENT SHALL FIT3D 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, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR ANY SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE AND/OR SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE) HOWEVER ARISING, EVEN IF FIT3D KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
FIT3D SHALL NOT BE LIABLE FOR ANY HEALTH PROBLEMS THAT MAY RESULT FROM TRAINING PROGRAMS, PRODUCTS, OR EVENTS YOU LEARN ABOUT THROUGH THE SITE AND/OR SERVICES. IF YOU ENGAGE IN ANY EXERCISE PROGRAM YOU RECEIVE OR LEARN ABOUT THROUGH THE SITE AND/OR SERVICES YOU AGREE THAT YOU DO SO AT YOUR OWN RISK AND ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES.
LOCAL LAWS; EXPORT CONTROL
FIT3D controls and operates the Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use the Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to FIT3D, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Site, any Services, or the Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and FIT3D is 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. You understand and agree that FIT3D is 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 carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer's satisfaction by contacting us at email@example.com. This Dispute Resolution and Arbitration; Class Action Waiver Provision (this "Provision") facilitates the prompt and efficient resolution of any disputes that may arise between you and FIT3D. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Dispute Resolution and Arbitration; Class Action Waiver provision (this "Provision"), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and FIT3D shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise 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). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney's fees).
For the purpose of this Provision, the "Company" means FIT3D and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, 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). "Dispute" is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company's licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE 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 the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Fit3D, Inc., ATTN: Greg Moore Fit3D, Inc. 585 Broadway St. Redwood City, CA 94063. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, 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, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the "Opt-Out Deadline"). You may opt out of this Provision by mailing written notification to Fit3D, Inc., Greg Moore ATTN: Fit3D NestGSV Inc. 585 Broadway St. Redwood City, CA 94063. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. 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 the Company 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, and shall in no event be commenced as a class 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 procedures or rules apply to the arbitration.
Because the 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. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration - You or the Company may initiate arbitration in either San Francisco, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, the Company may transfer the arbitration to San Francisco, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs - the Company will pay all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company 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 or private attorney general action) unless both you and the Company specifically agree to do so 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 the 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.
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, and the remainder of this Provision 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 these Terms or your use of the Site and/or Services. Notwithstanding any provision in this Agreement to the contrary, we agree that if the Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the language in this Provision if a dispute between us arises.
FIT3D prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by FIT3D, may result in immediate termination of your access to the Site without prior notice to you. The Federal Arbitration Act, California 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. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Site will be heard in the courts located in San Francisco, CA. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. FIT3D's failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and FIT3D and supersede all prior or contemporaneous negotiations, discussions or agreements between you and FIT3D about the 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 FIT3D for any reason, you can reach us at firstname.lastname@example.org.