Effective as of March 1, 2019
1.2 BY ACCESSING OR USING ANY PART OF THE SITE OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS, WHICH CONTAIN AN ARBITRATION AGREEMENT, A WAIVER OF CLASS-ACTION RIGHTS, AND LIABILITY LIMITATIONS. YOU ALSO AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE PRIVACY STATEMENT https://www.clickfit.com/au/privacy-policy/, WHICH DESCRIBES HOW WE COLLECT, USE AND DISCLOSE YOUR DATA AND WHICH IS INCORPORATED INTO THESE TERMS, AND YOU CONSENT TO SUCH COLLECTION, USE AND DISCLOSURE. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE SITE OR ANY SERVICES.
1.3 By viewing or using our Site, you acknowledge and agree to these Terms and those posted by us from time to time. We reserve the right to amend, change or modify these Terms at any time. No modification of these Terms by any party other than Digital Wellness shall be valid or enforceable against Digital Wellness unless expressly agreed to by Digital Wellness in a writing signed by an authorized Digital Wellness representative. Your continued use of the Sites after any changes or revisions to these Terms become effective shall indicate your agreement with the terms of such revised and then-current Terms. These Terms govern your use of the Site regardless of how you access it.
1.4 Your privacy is very important to us. Our Privacy Statement https://www.clickfit.com/au/privacy-policy/, sets forth important information on how we collect, process, use and share your data and is incorporated by reference herein. Please read the Privacy Statement carefully.
1.5 If you have any questions about these Terms please contact us by email at [email protected]
2.1 Users of the Services may include unregistered guests, free registered guests, paid subscribers, and people who purchase and/or activate a ClickFit subscription or product order (“Users”). You may need to create an account to use the Services. To protect your ClickFit account, please keep your password confidential. You must provide accurate, complete and current registration information when you register. The Services are intended for adults in the United States of America.
2.2 You must be over the age of 18 to use our Services. Children under the age of 18 are not permitted to use any Services. We do not knowingly seek or collect any information from children under the age of 18. If Digital Wellness becomes aware that we have unknowingly collected any data from a child under the age of 18, we will take commercially reasonable efforts to delete such data from our system. By using the Site on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Site constitutes that third party’s acceptance of these Terms. In addition, if you have been previously prohibited from accessing the Site or the website of any of our affiliates, you are not permitted to access the Site.
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access the Site and use the Services for your personal, non-commercial use, and as we otherwise intend. Digital Wellness reserves the right to monitor the Services for the purpose of determining that your usage complies with these Terms.
You may not use the Site or Services other than as expressly permitted by Section 3 above. Without limitation, you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Site; (b) use the Services or Site commercially; (c) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Services or Site (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (d) interfere with or damage the Services, Site, or any underlying technology; (e) impersonate or misrepresent your identity or affiliation; (f) attempt to obtain unauthorized access to the Services or Site; (g) collect information about users of the Services, the Site, or the Services; (h) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (i) violate any law, rule, or regulation, or (j) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Services or Site.
5.1 Account Registration. If you create an account, you must provide us with complete and accurate information. You must promptly update such information to keep it complete and accurate. You are entirely responsible for maintaining the confidentiality of your password and account. You are entirely responsible for any and all activities that occur under your account. You may not use anyone else’s account at any time. We may remove or reclaim your username if we believe it is appropriate (such as in response to a trademark claim).
5.2 Security of Your Account. You agree to notify Digital Wellness immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge, to the fullest extent permitted by applicable law. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Digital Wellness or a third party due to someone else using your account.
5.3 No Obligation to Retain a Record of Your Account. Digital Wellness has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
6.1 Subscriptions. We offer ClickFit subscription plans (each, a “Subscription”) for regular shipments of the ClickFit products that Digital Wellness may provide from time to time. Our Subscriptions are also subject to our Subscription Terms at https://www.clickfit.com/au/subscription-terms/, which provide additional information regarding Subscriptions (including term, delivery frequency, and pricing). In the event of any conflict between these Terms and the Subscription Terms, the Subscription Terms shall control solely with regard to the contents therein.
6.2 SUBSCRIPTIONS AUTOMATICALLY RENEW. YOU ACKNOWLEDGE AND AGREE THAT EACH SUBSCRIPTION AUTOMATICALLY RENEWS UNLESS YOU CANCEL IT OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TERMS.
6.3 Cancellation Policy. Subscriptions may be cancelled at any time, subject to the Subscription Terms found at https://www.clickfit.com/au/subscription-terms/. In order to cancel your Subscription, you can do so online by contacting us at [email protected] and following the instructions given. There are no cancellation fees.
6.4 Promo Codes. Digital Wellness may, from time to time in its sole discretion, offer certain promotional codes for discounts. Promotional codes are non-transferable and are not redeemable for cash, credit, or toward previous purchases. The promotion code must be redeemed at the time of checkout, unless otherwise advertised, and cannot retroactively be applied to a purchase. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by Digital Wellness at any time in its sole discretion.
The following terms apply to your purchase of the products offered on the Site, whether by way of a Subscription, “add-on” product, or otherwise (“Products”).
7.1 Product Descriptions. We try to make the Site thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Site may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other technology that you use. We apologize in advance for any such errors that may result in an incorrect price, inaccurate description, item unavailability or otherwise affect your order. We reserve the right to correct errors (whether by changing information on the Site or by informing you of the error and giving you an opportunity to cancel your order) or to update Product information at any time without notice.
7.2 Availability and Pricing. Digital Wellness reserves the right to change the prices and available Products and Subscriptions at any time. Any Subscriptions you have already paid for as of the date of such notice will not be affected by such change for the then-current term of the Subscription. Quantities of some Products may be limited and stock cannot always be guaranteed. Products offered for sale on this Site are for sale only in the United States and all prices are quoted in U.S. dollars. We may occasionally make errors in the stated prices on this Site. If a product’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation.
7.3 Purchasing Products. The display of Products on the Site invites you to make us an offer to buy the Products. Your order is an offer to buy the Products, which we accept only by shipping the Products ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before shipment in the event of inaccuracies, errors, Product unavailability, or for any other reason.
7.4 Orders. We have the right to refuse or limit any orders, limit quantities, and Subscriptions. We will not be liable if a Product is unavailable or if shipment is delayed. We reserve the right to provide substantially similar products to fulfill your order.
7.5 Damaged or Incomplete Shipment. If you receive a damaged or incomplete shipment of Products, or if you are otherwise unhappy with any Product, please email us at [email protected] We must receive notice of a damaged or incomplete shipment within two (2) weeks of receipt (as shown on by our common carrier’s shipping information). Any refunds or replacements are made solely in our discretion.
7.6 Payment. You authorize us (and any payment processor) to charge your payment card for all purchases you make, including regularly for Subscriptions. We accept the following forms of payment: Visa, Mastercard, AMEX, PayPal and where you are using the ClickFit application, ApplePay, and, for credit card payments, charge your credit card when your order is processed. The bank issuing your credit card may control when to release funds in the case of an order cancellation or refund. We reserve the right to use the payment information you provide us in connection with this payment to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (a) you providing complete personal, account, transaction and any other information needed, (b) authorization of the payment by your credit or debit card company, and (c) acceptance of your payment. You may cancel your payment prior to your final submission of it to us. We may, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Services in breach of any applicable law or regulation, including the card network rules or regulations; (ii) if you use the Services in breach of these Terms; (iii) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; or (v) failure to cooperate in an investigation or provide additional information when requested.
7.7 Transfer of Title and Risk of Loss/Damage. Title to and the risk of loss/damage of all Products passes from us to you at the time we deliver the Products to the common carrier for shipment. By purchasing Products on the Site for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and the common carrier of sold Products. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.
7.8 Taxes. Stated prices do not include any customs duties, sales, use, value-added, excise, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase.
8.1 People with certain conditions may not use the ClickFit program; these include, but are not limited to people who: (a) are pregnant, (b) are allergic to soy, peanuts, or latex (which is used in food processing), (c) have anorexia or bulimia, (d) have chronic kidney disease, or (e) have a condition requiring a gluten-free or ketogenic diet.
8.2 Nursing mothers require an adjusted meal plan. Men weighing in excess of 450 lbs. and women weighing in excess of 400 lbs. require doctor approval to be on CLICKFIT For more information, relating to other health conditions that may require physician approval, including adjusted meal plans, contact the CLICKFIT team at [email protected]
8.3 Please consult your physician before beginning the ClickFit program, or any other weight loss program, as changing your diet or exercise, or losing weight, may affect some medical conditions and medications. Your physician may need to adjust your medications due to changes in your diet, exercise, or weight while on this program. Your physician may recommend taking a multivitamin as a part of your ClickFit program for optimal health. You should also discuss your continued participation in the ClickFit program with your physician if there is any change in your medical condition.
8.4 Certain risks that have been associated with weight loss. Any weight loss program may cause constipation, muscle cramps, dehydration, diarrhea, dizziness, dry or cold skin, fatigue, gallbladder inflammation or gallstones, gout, hair loss, headaches, heart palpitations, loss of lean body mass, irregular or stopping of menstruation, reduced tolerance to cold, as well as other possible side effects. Failure to follow the ClickFit program protocol and eat all of the food recommended may increase the risk of developing serious health complications.
8.5 NEITHER THE CONTENT NOR ANY PRODUCTS OFFERED THROUGH THE SITE ARE INTENDED TO BE, NOR SHOULD THEY BE USED AS, A SUBSTITUTE FOR PROFESSIONAL DIAGNOSIS OR TREATMENT IN ANY WAY. DO NOT USE THE INFORMATION OR PRODUCTS AVAILABLE ON OR THROUGH THE SITE AS A SUBSTITUTE FOR PROFESSIONAL EVALUATION AND TREATMENT. ANY INFORMATION YOU FIND HERE, ON WEBSITES WHICH WE LINK TO OR OBTAIN THROUGH CONTACTS YOU MAY MAKE THROUGH THIS SITE, OR PRODUCTS OFFERED THROUGH THE SITE, SHOULD BE VERIFIED WITH YOUR PROFESSIONAL HEALTH CARE PROVIDER. CONSULT YOUR PROFESSIONAL HEALTH CARE PROVIDER WITH ANY SPECIFIC HEALTH QUESTIONS OR PROBLEMS YOU MAY HAVE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR ANY CONDITION REQUIRING IMMEDIATE ATTENTION, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DIGITAL WELLNESS DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC MEDICAL TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON OR PURSUANT TO THE SITE. RELIANCE ON ANY INFORMATION OR PRODUCTS PROVIDED BY DIGITAL WELLNESS, ITS AGENTS OR EMPLOYEES, OTHERS APPEARING ON THIS SITE AT THE INVITATION OF DIGITAL WELLNESS, OR OTHER VISITORS TO THE SITE IS SOLELY AT YOUR OWN RISK AND DIGITAL WELLNESS HEREBY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION THEREWITH.
9.1 Intellectual Property Rights. All content on the Site, or otherwise made available via the Site, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Site and/or Services (“Site Design”), and all software and other technology used to provide the Site and/or Services (“Technology”), are owned by or licensed to Digital Wellness and/or its affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Site, Content, Marks, Site Design and Technology. Using the Site and/or Services does not give you any ownership of or right in or to any Content, Marks, Site Design or Technology.
9.2 Third-Party Content. The Site may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Site may contain links to third-party websites. Digital Wellness is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse or accept any responsibility for the content on such third-party sites.
10.1 Any text, photographs, artwork, ideas, questions, reviews, comments, suggestions, other Personal Information (as such term is defined in the https://www.clickfit.com/au/privacy-policy/) and any other content that you submit or post to the Site or otherwise provide to us are referred to as “User Content.” The following Terms apply to User Content, provided that, if there is any conflict between the Privacy Statement and these Terms, the Privacy Statement shall control.
10.2 Ownership of User Content. You own your User Content, but we need certain rights from you to use that information and content. By using the Services, you grant us, to the extent permitted by law, the right to collect, host, transfer, process, analyze, communicate and store your Personal Information (including information obtained via the use of third party services) and User Content in order to (a) provide the Services to you and other users, (b) for the purposes described in these Terms and our Privacy Statement https://www.clickfit.com/au/privacy-policy/, and (c) for any other purpose to which you expressly agree, such as sharing with others.
10.3 License to Digital Wellness. By sharing, submitting or uploading any User Content, you grant Digital Wellness, to the extent permitted by law, a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable and transferable license to host, store, copy, publish, distribute, provide access to, use, display, perform, sell, transmit, adapt, translate, modify, reverse-engineer, disassemble and create derivative works from your User Content in any manner existing now or created in the future. The license above includes the right for Digital Wellness to copy, display, and index your User Content. Digital Wellness will own the indexes it creates. We will also have the right to continue to use your User Content, even if you stop using the Services, but only as necessary for us to provide and improve the Services.
10.4 Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights,” that you have to prevent us from exploiting the rights granted in Section 10.3.
10.5 Right to Name and Likeness. You also grant us the right to use and display the name, photograph and any other biographical information that you submit with any User Content in connection with such User Content.
10.6 Any User Provided Content that you have made public or shared (e.g. by including such User Provided Content in as part of your public profile in one of the Services or in a public posting on one of our Services) may be used by other users as part of, or in conjunction with, the Services. We will not be required to remove any information or User Provided Content that you have made public or has otherwise been shared from the family trees or public profiles of other users.
10.7 Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Site. Accordingly, you represent and warrant that: (1) you have all rights, licenses, consents, and releases necessary to grant Digital Wellness the required rights to disseminate any User Content and (2) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or Digital Wellness’s use of your uploaded User Content (or any portion thereof) on, through or by the means of the Site, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy or result in the violation of any applicable law or regulation.
10.8 No Obligations Regarding User Content. We will not have any obligation to compensate you or anyone else for our use of any User Content. We have the right to remove or edit any User Content for any reason or no reason at all.
11.1 Infringement Notification. Digital Wellness respects the rights of others and we expect users of our Site and Services to do the same. These Terms prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access of, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
11.2 How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Site infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement by electronic mail or regular mail to Digital Wellness’s designated agent to receive notifications of claimed infringement by one of the following means:
Digital Wellness US LLC
2500 Broadway Ave, F-125
with the information that sets forth the items specified below:
By accessing the Site and the Services, you agree to, acknowledge, and represent as follows:
12.1 You understand that information provided through the Site or Services is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of medical and clinical information.
12.2 You represent that you are eighteen (18) years of age or older.
12.3 You take responsibility for all possible consequences resulting from your sharing with others access to your personal information.
12.4 You agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations. In case of breach of any one of these representations Digital Wellness has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify Digital Wellness and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
13.1 NO WARRANTIES. THE SITE, SERVICES AND PRODUCTS ARE PROVIDED “AS AVAILABLE” AND “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. DIGITAL WELLNESS DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. DIGITAL WELLNESS DOES NOT WARRANT THAT ANY PRODUCTS WILL BE IN STOCK, SAFE, DEFECT-FREE, CONFORM WITH WRITTEN OR ORAL SPECIFICATIONS, GUARANTEES, REPRESENTATIONS, WARRANTIES OR PROMISES, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED IN SHIPMENT. THIS PROVISION IS NOT INTENDED TO DISCLAIM LIABILITY THAT WE MAY NOT DISCLAIM UNDER APPLICABLE LAW.
13.2 USE OF SITE IS AT YOUR OWN RISK. DIGITAL WELLNESS DOES NOT REPRESENT OR WARRANT THAT THE SITE, SERVICES OR EMAILS SENT TO YOU WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. DIGITAL WELLNESS MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE PRODUCTS, SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. DIGITAL WELLNESS WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT OR SERVICES ON THE SITE, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. PACKAGING, LABELS AND INSTRUCTIONS MAY CONTAIN MANUFACTURER DISCLAIMERS AND LIMITATIONS OF LIABILITY THAT APPLY TO THE PRODUCTS YOU PURCHASE. DIGITAL WELLNESS MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS.
13.3 NO RESPONSIBILITY FOR THIRD-PARTY MATERIALS. DIGITAL WELLNESS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITE, AND DIGITAL WELLNESS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. DIGITAL WELLNESS WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
13.4 NO CONSEQUENTIAL DAMAGES. IN NO EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WILL DIGITAL WELLNESS, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “DIGITAL WELLNESS” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITE, SERVICES OR PRODUCTS, EVEN IF DIGITAL WELLNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. DIGITAL WELLNESS WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE, OR LOSS OF GOOD WILL.
13.5 OUR LIABILITY IS LIMITED. IN ANY EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT(S) TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT, THE AGGREGATE AMOUNT YOU PAID US DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT DIGITAL WELLNESS MAY NOT EXCLUDE UNDER APPLICABLE LAW.
13.6 NOTICE TO NEW JERSEY RESIDENTS. Your rights are protected under the Truth-in-Consumer Contract, Warranty and Notice Act and New Jersey law generally. The following provisions in these Terms do not apply to you and are not intended to vary, diminish or alter your rights under New Jersey law: specifically, nothing in these Terms limits, varies, diminishes, affects, or otherwise voids or alters your rights under New Jersey law as they relate to the following: limitations of liability or exculpation (such as limitations on indirect, incidental, special, exemplary, consequential or similar damages); dispute resolution; indemnification; venue or jurisdiction; statutes of limitation or repose periods for bringing claims; plain language requirements; and warranties. Your rights regarding these specific provisions will be governed by New Jersey law. In the event of any conflict between these Terms and New Jersey law, New Jersey law shall govern.
You agree to defend, indemnify and hold harmless Digital Wellness, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including attorneys’ fees) incurred in connection with any third-party claim brought or asserted against any of the Indemnified Parties: (a) alleging facts or circumstances that would, if true, constitute a violation of any provision of these Terms by you or (b) arising from or related to our use of your User Content in the context of the Services. You may not settle any such claim without our express written consent. This defense and indemnification obligation is intended to extend to the fullest extent permitted by applicable law and will survive these Terms and your use of the Site.
15.1 Term. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion and without any liability, modify, suspend or discontinue any aspect of the Site, temporarily or permanently, at any time and without prior notice.
15.2 Modification and Termination of Site and Services. We may modify or terminate the Site or the Services, your access to the Services, in part or as a whole, at any time, for any or no reason, and without notice or liability to you.
15.3 Suspension or Termination. We may deny you access to all or part of the Site at any time for any reason (including if you violate these Terms, as determined in our sole and absolute discretion) or no reason at all. If we terminate for no reason your right to access the Site, we will fulfill our obligations to you related to any orders outstanding at the time of termination.
15.4 Effect of Termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Site, these Terms will terminate and all rights you have to access the Site will immediately terminate. The following provisions will survive termination: 1.4; 4; 5; 7.4; 7.5; 8-14; 15.4; 16, 17.
You and Digital Wellness agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Services or Site, the Products, any breach, enforcement, or termination of these Terms, or otherwise relating to Digital Wellness in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 16.
16.1 Informal Resolution. If you have any dispute with us, you agree that before taking any formal action, you will contact us at [email protected], provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of any issue.
16.2 Applicable Law. United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of California, without regard to conflict of laws principles, will govern all Covered Matters.
16.3 Arbitration. By using the Sites, you agree that any dispute in any manner arising out of or relating in any way to these Terms, shall be submitted to binding arbitration with Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to JAMS’ arbitration rules, held before a single neutral arbitrator in the Los Angeles, California area. The parties to arbitration may use legal counsel at their own expense, and the prevailing party shall be entitled to its reasonable attorney’s fees. All costs of arbitration (including arbitrator fees) shall be paid by Digital Wellness, except only that if you bring the arbitration, you may be charged an initial filing fee that shall not exceed the filing fees that you would incur for bringing an action in court. This provision will not affect any claimant’s rights to seek relief from small claims court. Claims brought on behalf of or allegedly representing or including other persons or entities, including but not limited to any class, consolidated, representative, collective or private attorney general action shall be a “Class Action.” Notwithstanding anything else in these Terms or the JAMS rules, any parties subject to this arbitration provision shall be barred from bringing or participating in any Class Action related to a dispute covered by this arbitration provision. However, if these Class Action restrictions are ever deemed illegal or unenforceable, they shall be severed from this arbitration provision. In that event, any Class Action shall by exempted from this arbitration provision and brought in court. This arbitration provision is subject to the Federal Arbitration Act, and may be enforced in any court of competent jurisdiction.
16.4 Award. For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Digital Wellness user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
16.5 Exceptions. There are only two exceptions to this agreement to arbitrate:
(a) First, if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief in any court of competent jurisdiction.
(b) Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in Los Angeles County, California, if the claim and the parties are within the jurisdiction of the small claims court and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
16.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS’s rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your request, Digital Wellness will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator’s decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, Digital Wellness is relieved of its obligation to reimburse you for any fees associated with the arbitration.
16.7 Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Digital Wellness prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and Digital Wellness. If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification and you will not be bound by the amended terms.
16.8 Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order or because you have chosen to file an eligible lawsuit in small claims court, you agree that any claim or dispute that has arisen or may arise between you and Digital Wellness must be resolved exclusively by a state, federal, or small claims court located in Los Angeles County, California. You and Digital Wellness agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
16.9 Opt-Out. IF YOU ARE A NEW DIGITAL WELLNESS USER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO [email protected] (“OPT-OUT NOTICE”) OR VIA US MAIL TO: 2500 Broadway Ave, F-125, Santa Monica, California 90404. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW DIGITAL WELLNESS USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
16.10 Procedure. In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license which matches the name on your account to: [email protected]. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms and this Disputes Section 16 will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
16.11 WAIVER. BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
16.12 STATUTE OF LIMITATIONS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED. THIS PROVISION DOES NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.
17.1 Force Majeure. Under no circumstances shall Digital Wellness or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
17.2 No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of Digital Wellness to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. The provisions of these Terms are intended to extend only to the fullest extent permitted by applicable law. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
17.3 Miscellaneous. These Terms (and all policies, terms and conditions referenced herein) constitute the entire agreement between you and Digital Wellness and govern your use of the Site, Services and products provided by Digital Wellness, and supersede any prior agreements between you and Digital Wellness on the subject matters. You also may be subject to additional terms that may apply when you use certain Digital Wellness services or third-party content, links or websites. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Digital Wellness without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Digital Wellness. A party’s failure or delay in exercising any right, power or privilege under these Terms will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under these Terms. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree to comply with all applicable laws in your use of the Site and Services. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. “Include(s)” or “including” means, respectively, “include(s), without limitation,” or “including, without limitation,”, unless expressly stated otherwise. If you are using the Site or Services for or on behalf of the U.S. or any other government, your license rights do not exceed those granted to non-government consumers.
17.4 Use Outside the United States of America. The Site is controlled and offered by Digital Wellness from the United States of America. Digital Wellness makes no representations that the Site is appropriate for use in other locations. Those who access or use the Site from other locations do so at their own risk and are responsible for compliance with local law. You consent to the processing in the United States of America of information you provide to us.
17.5 Notices and Electronic Communications. You hereby consent to receiving and transacting with us by electronic means. We may deliver notice to you by e-mail, posting a notice on the Site or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: [email protected].