TERMS OF USE
Last Updated: May _, 2021
Please read these Terms of Use (this “Agreement”) carefully. By clicking “accept” to this Agreement, or otherwise accessing or using the Platform (as defined below), you as a Customer or Trainer (each as defined below), consent to be bound by this Agreement and affirm that you have the legal authority to enter into this Agreement. Online Personal Trainer, LLC, a Washington limited liability company (“we” “our” or the “Company”), provides a web-based platform to facilitate a connection between customers looking for personal training classes, videos, and services (a “Customer”) and personal trainers who offer classes, videos, and services (a “Trainer”), which exist as a network therein, as well as any materials, products, and services available in connection therewith (including Company’s website, collectively referred to as the “Platform”). For purposes of this Agreement, a Customer and a Trainer is also referred to as a “User” of the Platform.
YOU ARE AGREEING TO AN ASSUMPTION OF RISK AND LIABILITY RELEASE. SEE SECTION 9. IF YOU ARE A U.S. RESIDENT, THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. SEE SECTION 13.
1. CHANGES TO AGREEMENT.
We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement on the Platform, and/or by sending to you a notice of the revised Agreement by email. Any changes to this Agreement will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating, or otherwise notified you, of such changes. Your clicking “accept” to this Agreement or your access to or use of the Platform following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” date above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Platform (including access via any third-party links); charge for, modify, or waive any fees required to use the Platform; or offer opportunities to some or all Platform Users. We reserve the right to introduce new features or functionality for which the payment of fees may be required.
2. USER ACCOUNTS
2.1. Account Creation.
In order to use some of the features of the Platform, a User may be required to register for an account (an “Account”). To create an Account, a User will be required to provide certain information as prompted by the registration form on the Platform. User represents that: (a) all required registration information is truthful and accurate; (b) User will maintain the accuracy of such information; and (c) that User is creating the account on its own behalf or on the behalf of another for which you have authorization to act (e.g. authorized agent acting on behalf of a brand owner).
2.2. Account Responsibilities.
You are responsible for maintaining the confidentiality of all Account login credentials, and are fully responsible for all activities that occur under the Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of the Account or any other breach or suspected breach of security. Company cannot and will not be liable for any loss or damage arising from any authorized use of User’s Account or the failure to comply with the above requirements.
3. CUSTOMERS AND TRAINERS
3.1. The Platform.
We provide the Platform for Customers and Trainers to connect, communicate, and offer or enroll in Trainer Services (defined below) with each other. We do not provide any services to Customer as a Trainer. We do not recommend, nor are we affiliated with, any specific Customer or Trainer. Customers and Trainers are solely responsible for engaging each other on the Platform, and each entirely assumes any and all risk of offering or receiving Trainer Services, regardless of whether we assist in that process. We make no representations or warranties about the quality of any Trainer or any specific outcomes of Trainer Services, nor have we reviewed such Trainer Services for accuracy or quality.
3.2. Trainer Services.
Trainers can list a variety of videos, lessons, trainings, services, and other materials and content (“Trainer Services”) to the Platform. Each Trainer sets its own schedule and lists its own prices, including policies for late or cancellation fees, as well as refunds. By posting Trainer Services to the Platform, each Trainer represents the truth and accuracy of any information therein, such as of any qualifications or certificates. By enrolling in any Trainer Services, Customer thereby agrees to such Trainer’s policies, and agrees to pay the listed prices and fees for the Trainer Services. Customer further acknowledges that Trainer makes no specific representation about any specific outcome of the Trainer Services, and that in providing the Trainer Services, Trainer is not providing any medical advice, diagnosis, or recommendations.
4. PAYMENTS AND REFUNDS
4.1. Subscriptions.
In order to offer any Trainer Services, Trainers must enroll in a recurring payment subscription on a monthly or annual basis (the “Subscription”). The Subscription is calculated based on the number of Customers such Trainer is offering Trainer Services to in the then current billing period. The Subscription amount might change from time to time based on which Subscription tier Trainer is in for the current billing period, for example, where Trainer offers Trainer Services to more Customers than in the prior billing period sufficient to increase the Subscription to a higher Subscription tier for that period, the Subscription amount for that billing period will be higher than the prior billing period. Upon enrolling in a Subscription, Trainer thereby agrees to such Subscription calculation and recurring charges.
4.2. Customer Payments.
Payments made by Customers to Trainers for Trainer Services will be held by us in the Platform until Trainer transfers such funds to its own bank account.
4.3. Refunds.
We do not offer refunds for Subscriptions. Upon cancellation, you will have access to the features of your Subscription for the remainder of the then current billing period (for example, access for the remainder of that month).
4.4. Failed Payments.
Users have the sole responsibility to maintain up-to-date payment information and have sufficient funds to process a payment. In the event of a failed payment, we, in addition to our payment processor, may charge you a fee. We may suspend or terminate your access to the Platform in the event of nonpayment.
4.5. Payment Processing.
Payments will be processed using third-party payment processors selected by the Company, and we are not liable for any payment processing errors, fees, or service-related issues that may arise related to processing payments.
5. RIGHT TO USE THE PLATFORM
5.1. Use Right.
Subject to the terms of this Agreement, Company grants User a non-transferable, non-exclusive, non-sublicensable, revocable right to access and use the Platform, but for no other purpose. Specifically, a User may not use the Platform to advertise or solicit for projects or work to be arranged and paid other than through the Platform. Upon termination of this Agreement, User’s right to use the applicable portion of, or the entire Platform, will terminate immediately.
5.2. Certain Restrictions.
The rights granted to User in this Agreement are subject to the following restrictions: (a) User may not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Platform (other than for its purpose); (b) User may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform; (c) User may not access the Platform in order to build a similar or competitive service; and (d) except as expressly stated on or enabled by the Platform, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Platform will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Platform content must be retained on all copies thereof.
5.3. Modification, Suspension, or Discontinuance.
We reserve the right, at any time, to modify or discontinue the Platform or any part thereof with or without notice. User agrees that we will not be liable for any modification or suspension of the Platform or any part thereof. Prior to discontinuing any material portion of the Platform, we will use reasonable efforts to provide User with notification of such discontinuance.
5.4. Ownership.
Excluding User Content (defined below), User acknowledges that all the material and content available on or through the Platform, including all intellectual property rights, including copyrights, patents, trademarks, and trade secrets in such material or content are owned by Company (or Company’s licensors), including all graphics, copy, music, videos, images, data, and the look and feel of the Platform. The provision of the Platform does not transfer to User or any third party any rights, title or interest in or to such intellectual property rights. Company (or its licensors) reserve all rights not granted in this Agreement.
5.5. Third-Party Materials.
The Platform may make material of third parties available to Users, including advertisements, and marketing material delivered to you as part of the Platform (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third-Party Materials.
We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, integrity, quality, legality, usefulness, or safety of Third-Party Materials, or any intellectual property rights therein. Certain Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Platform at any time. In addition, the availability of any Third-Party Materials through the Platform does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD-PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS (SUCH AS TERMS OF USE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY MATERIALS).
6. USER CONTENT
6.1. User Content. “User Content”
Includes any and all information and content that User submits to, or uses with, the Platform, including any and all information, materials, and content posted to the Platform by a Trainer, including any and all Trainer Services. User is solely responsible for its User Content. User assumes all risks associated with use of User’s User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of User’s User Content that makes User or any third party personally identifiable or improperly uses third party proprietary rights. User hereby represents that it has the authorization to consent to Company’s use of User’s User Content and that the User Content does not violate the Acceptable Use Policy (defined below). Because User alone is responsible for its User Content, User may expose itself to liability if, for example, the User Content violates the Acceptable Use Policy or any applicable privacy or intellectual property laws or agreements.
6.2. License.
User hereby grants, and represents that it has the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, modify, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use User’s User Content, and to grant sublicenses of the foregoing, solely for the purposes of: (a) providing the Platform; and (b) creating and using aggregated and anonymized data from User Content for any purpose. User agrees to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to its User Content.
6.3. Privacy.
Company may collect personally identifiable information of User through the Platform. Company will not disclose personally identifiable information about Users, except: (a) Company may disclose personally identifiable information to other Users to provide the Platform, for example certain Customer information may be shared with a Trainer offering Trainer Services to Customer; (b) Company may share or transfer personally identifiable information in connection with a sale or transfer of all or a part of Company’s company or Company’s assets; or (c) Company may share personally identifiable information as necessary to (i) comply with the law, any lawful request, or any legal process served on Company, (ii) protect and defend the rights or property of Company and its employees, agents, users, and others, (iii) act in an emergency, including to protect someone’s safety, or (iv) investigate any violation or potential violation of the law or Company’s agreements, policies, or terms. Company’s collection, use, and disclosure of this information is governed by Company’s Privacy Policy available here
6.4. Review of User Content.
While Company is not responsible for any User Content, Company reserves the right (but has no obligation) to review any User Content, investigate, and/or take appropriate action against User in Company’s sole discretion (including removing or modifying User’s User Content, terminating this Agreement, and/or reporting User to law enforcement authorities) if User violates the Acceptable Use Policy or any other provision of this Agreement or otherwise create potential liability for us or any other person.
6.5. Feedback.
If User provides Company any feedback or suggestions regarding the Platform (“Feedback”), User hereby assigns to Company all rights in the Feedback and agrees that Company will have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback as non-confidential and non-proprietary. User agrees not to submit as Feedback any information or ideas that User considers to be confidential or proprietary.
7. ACCEPTABLE USE POLICY.
The following sets forth Company’s “Acceptable Use Policy.”
7.1 Unlawful or Harmful Use.
User agrees not to use the Platform in any manner or post or upload any User Content:
(a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or Customer) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or
(c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
7.2 Improper Purposes.
In addition, User agrees not to use the Platform to:
(a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;
(b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
(c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
(d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform or violate the regulations, policies or procedures of such networks;
(e) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to or used together with the Platform, through password mining or other means;
(f) solicit or make any arrangements for services to be performed other than through the Platform;
(g) harass or interfere with another user’s use and enjoyment of the Platform; or
(h) introduce software or automated agents or scripts to the Platform so as to produce multiple accounts,
generate automated searches, requests and queries, or to strip, scrape, or mine data from the Platform.
8. INDEMNITY.
User agrees to indemnify and hold Company (and its officers, directors, employees, agents, and affiliates) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party related to or arising out of: (a) User’s use of the Platform; (b) User’s User Content; (c) User’s violation of this Agreement; (d) Trainer Services or the offering or use thereof; or (e) User’s violation of applicable laws or regulations. Company reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify Company (or its officers, directors, employees, agents, or affiliates) and User agrees to cooperate with Company’s defense of these claims. User agrees not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify User of any such claim, action or proceeding upon becoming aware of it.
9. ASSUMPTION OF RISK; RELEASE OF CLAIMS.
BY ENROLLING IN OR OTHERWISE USING ANY TRAINER SERVICES, CUSTOMER IS THEREBY ASSUMING ALL RISK OF SUCH ACTIVITY AND REPRESENTING TO US, AND THE TRAINER, CUSTOMER HAS CONSULTED WITH A PHYSICIAN REGARDING THE ADVISABILITY OF ENGAGING IN SUCH ACTIVITY, IS PHYSICALLY ABLE TO PERFORM THE APPLICABLE TRAINER SERVICES, IS MONITORING AND MAINTAINING ADEQUATE NUTRITION, HYDRATION, FOOD INTAKE, AND PHYSICAL STATE, IS ENGAGING THE TRAINER SERVICES IN A CONTROLLED AND SAFE ENVIRONMENT, AND HAS EVALUATED AND FULLY ASSUMED THE RISKS OF ENGAGING IN POTENTIALLY STRENUOUS PHYSICAL ACTIVITY.
SUBJECT TO THIS AGREEMENT, BY USING THE PLATFORM EACH USER HEREBY AGREES TO WAIVE ANY AND ALL KNOWN AND UNKNOWN CLAIMS, NOW OR IN THE FUTURE, RELEASE FROM LIABILITY, AND AGREE NOT TO SUE US, OUR MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS, OR A TRAINER, FOR ANY DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSS SUSTAINED AS A RESULT OF ITS USE OF THE PLATFORM OR PARTICIPATION IN ANY TRAINER SERVICES DUE TO ANY CAUSE WHATSOEVER, INCLUDING TRAINER NEGLIGENCE.
10. WARRANTY DISCLAIMERS.
THE PLATFORM IS PROVIDED “AS-IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE PLATFORM: (A) WILL MEET USER’S REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER RELATED TO TRAINER SERVICES, INCLUDING BUT NOT LIMITED TO, SAFETY, ANY SPECIFIC OUTCOME, OR THE ACCURACY OR TRUTHFULLNESS OF ANY INFORMATION THEREIN.
THE PLATFORM, INCLUDING TRAINER SERVICES, DOES NOT PROVIDE MEDICAL DIAGNOSIS, TREATMENT, OR ADVICE. ALL USERS SHOULD REGULARLY CONSULT WITH MEDICAL PROFESSIONALS REGARDING THE ADVISABIITY OF ENGAGING OR CONTINUING ANY TRAINER SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL QUALIFICATIONS AND NUTRITIONAL RECOMMENDATIONS. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT RELY ON THE PLATFORM FOR IMMEDIATE, URGENT MEDICAL NEEDS. THE CONTENT AND FUNCTIONALITY OF THE PLATFORM, INCLUDING TRAINER SERVICES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO CONSTITUTE PROFESSIONAL MEDICAL DIAGNOSIS, TREATMENT, OR ADVICE. THE PLATFORM MAY NOT BE USED TO STORE OR TRANSMIT ANY PROTECTED HEALTH INFORMATION UNDER HIPAA OR ANY RELATED APPLICABLE LAWS AND REGULATIONS. IF YOU BELIEVE SUCH INFORMATION HAS BEEN TRANSMITTED THROUGH THE PLATFORM CONTACT US IMMEDIATELY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL COMPANY BE LIABLE TO USER, OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR USER’S USE OF, OR INABILITY TO USE, THE PLATFORM, TRAINER SERVICES, LOST USER CONTENT, OR DATA RECOVERY COSTS. SUCH LIMITATIONS APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCESS TO, AND USE OF, THE PLATFORM ARE AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO USER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE PLATFORM (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED US DOLLARS ($100) OR (B) AMOUNTS USER PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER AND USER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN THE EVENT A DISPUTE ARISES BETWEEN A CUSTOMER AND TRAINER, EACH HEREBY AGREES TO FULLY AND COMPLETELY RELEASE COMPANY AND HEREBY DOES RELEASE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, DAMAGES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO, THE DISPUTE. EACH CUSTOMER AND TRAINER SHALL INDEMNIFY COMPANY IF ANY SUCH DISPUTES RESULTS IN THE COMPANY INCURRING LIABILITY OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES).
12. TERM AND TERMINATION.
This Agreement will remain in full force and effect while User uses the Platform. Company may suspend User’s rights to use the Platform and/or terminate this Agreement immediately upon User’s breach of this Agreement. Upon termination of this Agreement, User’s right to access and use the Platform will terminate immediately. User understands that any termination of User’s use might involve deletion of all User Content. Company will not have any liability whatsoever for deletion of User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3 – 14.
13. DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY. IT AFFECTS USER’S RIGHTS.
13.1. Mandatory Arbitration
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between User and Company and/or Company’s employees, agents, successors, or assigns, regarding or relating to the Platform or this Agreement, will exclusively be settled through binding and confidential arbitration.
13.2. Rule of Arbitration.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS, as mutually determined by the parties (if the parties are unable to mutually agree on AAA or JAMS, Company will have sole authority to choose either AAA or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, User may visit the AAA website at: http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, User may visit the JAMS website at: http://www.jamsadr.com.
USER IS GIVING UP USER’S RIGHT TO GO TO COURT TO ASSERT OR DEFEND USER’S RIGHTS EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. USER’S RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. USER IS ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
The parties must abide by the following rules: (1) ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ CUSTOMER CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that User is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of User’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Company also reserves the right in Company’s sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator will honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award will be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any relief or remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
13.3. Exception.
Notwithstanding the foregoing, either of the parties may bring an action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in King County, Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in King County, Washington in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within King County, Washington for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
13.4. Severability.
With the exception of subparts (1) and (2) in the paragraph 13.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 13.2 (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither of the parties will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in King County, Washington.
13.5. Termination.
Notwithstanding any provision in this Agreement to the contrary, if Company seeks to terminate the Dispute Resolution section as included in the Agreement, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Platform, and will not be effective as to any claim of which User provided Company with written notice prior to the date of termination.
13.6. Governing Law.
Any and all controversies, disputes, demands, counts, claims, or causes of action between User and Company’s employees, agents, successors, or assigns, regarding or relating to the Platform or this Agreement, will be exclusively be governed by the internal laws of the State of Washington, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision will be governed by the Federal Arbitration Act.
14. GENERAL
14.1. Entire Agreement.
This Agreement constitutes the entire agreement between User and Company regarding the use of the Platform. Company’s failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Company is an independent contractor as Trainer to Customer, and neither party is an agent, employee, or partner of the other.
14.2. Assignment.
This Agreement, and User’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by User without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees. Notwithstanding the foregoing, Company may assign this Agreement without any prior written consent as part of a merger, or a sale or transfer of all or substantially all of its assets, or any business division covering substantially all of the Platform. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective and permitted assignees.
14.3. Electronic Communications.
The communications between User and Company use electronic means, including email. For contractual purposes, User: (a) consents to receive communications from Company in electronic form and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect User’s non-waivable rights.
14.4. Contact Information.
Notices to Company may be sent to
