Last updated: 07.29.2021
If you are using the Services on behalf of an organization or entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these Terms. In that case, “you” and “your” refers to you and your Organization.
You may use the Services only in compliance with these Terms. The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you. We may also remove any content from our Services at our discretion.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND VIFIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. Services Overview. The mobile application and related Services provide certain visual tools and educational videos that demonstrate exercises and stretches and uses the camera of a mobile device to allow users to track and monitor their exercises, stretches, or movements in real time. The user can monitor his/her movements to make real-time corrections or adjustments in movements or posturing. Users may also use the mobile application as a telecommunication tool to engage with a qualified coach to receive coaching services regarding exercises and stretches.
2. Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3.1. Accounts. To access most features of the Services, you must register for an account. When you register for an account, you will be required to provide us with some information about yourself, such as your name, email address, or your account information on a third-party service (e.g., Google). You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. General Payment Terms. While we currently offer the Services for free, we reserve the right to offer some or all of the Services for a fee in the future and to determine pricing for the Services in our sole discretion. We will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information.
5.1. Limited License. Subject to your complete and ongoing compliance with these Terms, ViFive grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one copy of any downloadable application we make available to you (including the right to install and use one copy of the mobile application associated with the Services on a mobile device that you own or control); and (b) access and use the Services.
5.2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Services, including interfering with any security features or access control mechanism, disabling or circumventing features that prevent or limit use or copying of any Materials, as defined below, or other content, and reverse engineering or otherwise attempting to discover the source code of any portion of the Services. If you are prohibited under applicable law from using the Services, you may not use it.
5.3. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Services (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services.
6. Ownership; Proprietary Rights. The Services are owned and operated by ViFive. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services (“Materials”) provided by us are protected by intellectual property and other laws. All Materials included in the Services are the property of ViFive or the third-party rights owners of such Materials. You may not make use of the Services, including the Materials, except as expressly authorized by us in these Terms or as otherwise permitted by law. We reserve all rights to the Services, including the Materials (to the extent of our rights in the Materials), not granted expressly in these Terms.
7. Third-Party Terms
7.1. Linked Websites. The Services may contain links to third-party websites. If you purchase anything on a third-party linked website (“Linked Website”), that transaction and your use of the Linked Website may be subject to the relevant third party’s terms and conditions, and those terms and conditions will be solely between you and that third party. Linked Websites are not under our control, and we are not responsible for their content. We do not endorse any Linked Website, or any products or services advertises or associated with such Linked Website, nor do we provide any representation or warranty with respect to any Linked Website or their products or services.
7.2. Third-Party Services. We may provide tools through the Services that enable you to export or share information, including User Content, as defined below, to third-party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information.
7.3. Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1. User Content Generally. Certain features of the Services may permit users to upload content to the Services, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Services. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Services.
8.2. Limited License Grant to Us. By providing User Content to or via the Services, you grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, in connection with the provision, advertisement, marketing and promotion of the Services.
8.3. Limited License Grant to Other Users. By providing User Content to or via the Services to other users of the Services, you grant those users, for their personal and non-commercial use, a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services.
8.4. User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content via the Services, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by us, the Services, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause us to violate any law or regulation; or (iv) require us to obtain any additional authorizations, consents, licenses or permissions from or pay any royalties to any third parties for the Use of your User Content; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Services, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Services.
9.1. Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE SERVICES, YOU AGREE NOT TO:
a. use the Services for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Services;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
d. interfere with security-related features of the Services, including by cracking any other user’s account passwords or any security encryption codes;
e. through use of manual or automated means, crawl, scrape, or spider any page, data, or portion of the Services (including the Materials);
f. interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Services; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services;
g. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Services account without permission;
h. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
i .attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
11. 1 Notification
We respect the intellectual property of others and take the protection of intellectual property very seriously, and we ask our users do to the same. Infringing activity will not be tolerated on the Services. If you believe that any content made available on or through the Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by ViFive with the user alleged to have infringed a right you own or control, and you hereby consent to ViFive making such disclosure. Your communication must include substantially the following:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Services;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11. 2 Designated Agent Contact Information. ViFive’s designated agent for a receipt of Notification of Claimed Infringement (“Designated Agent“) can be contacted at:
Via Email: email@example.com
Via Postal Service: 1250 Borregas Avenue, #41, Sunnyvale, CA 94089(510) 726-8483
11. 3 Repeat Infringer Policy. ViFive’s intellectual property policy is to: (a) remove or disable access to material that ViFive believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Services; and (b) remove any User Content uploaded to the Services by “repeat infringers.” ViFive considers a “repeat infringer” to be any user that has repeatedly infringed or repeatedly been charged with infringing the rights of third parties by uploading User Content to the Services for which ViFive has received takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. ViFive has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon ViFive’s own determination.
11. 4 Counter Notification. If you receive a notification from ViFive that material you uploaded to the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide ViFive with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to ViFive’s Designated Agent through one of the methods identified in Section 11.2 above and include substantially the following information:
a. your physical or electronic signature;
b. 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;
c. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which ViFive may be found, and you will accept service of process from the person who provided notification in accordance with Section 11.1 above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
11. 5 Reposting of Content Subject to a Counter Notification . If you submit a Counter Notification to ViFive in response to a Notification of Claimed Infringement, then ViFive will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that ViFive will replace the removed User Content or cease disabling access to it in 10 business days, and ViFive will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless ViFive’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on ViFive’s system or network.
11. 6 False Notifications of Claimed Infringement or Counter Notifications. The U.S. Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [ViFive] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
ViFive reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For clarity, and notwithstanding anything in this Section 11 to the contrary, ViFive in its sole discretion may (but has no obligation to) disclose publicly any and all Notices of Claimed Infringement and Counter Notifications.
12. Modification of Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Services. Material modifications are effective upon the earliest of your receipt of notice or acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination, and Modification of the Service
13. 1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Services, and ending when terminated as described in Section
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Services and these Terms automatically terminate. In addition, we may, at our sole discretion, terminate these Terms or your account on the Services, or suspend or terminate your access to the Services, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
13. 3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your account or the Services; and (c) all payment obligations accrued prior to termination and Sections 5.3, 6, 8, 13.3, 14, 15, 16, 16.3 and 17.9 will survive.
13. 4 Modification of the Services. We reserve the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. We will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify ViFive, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “ViFive Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
15. 1 THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. VIFIVE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIFIVE DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND VIFIVE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15. 2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR VIFIVE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE VIFIVE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15. 3 VIFIVE DOES NOT PROVIDE ANY MEDICAL OR PROFESSIONAL THERAPY SERVICES OR ADVICE. ALL INFORMATION AND SERVICES PROVIDED BY VIFIVE ARE NOT INTENDED TO BE A SUBSTITUTE FOR ANY PROFESSIONAL SERVICE OR ADVICE. YOU SHOULD NOT DISREGARD THE ADVICE FROM A HEALTHCARE PROFESSIONAL OR DELAY IN SEEKING PROFESSIONAL ADVICE BECAUSE OF YOUR USE OF THE SERVICES. ALL INFORMATION AND SERVICES PROVIDED BY VIFIVE ARE INTENDED FOR GENERAL INFORMATIONAL PURPOSES, EDUCATION, AND GENERAL WELLNESS, AND ARE NOT INTENDED TO TREAT, DIAGNOSE, MITIGATE, CURE OR PRVENT ANY DISEASE, OR ANY MEDICAL OR HEALTH CONDITION, SUCH AS PAIN. YOU SHOULD NOT USE THE INFORMATION PROVIDED BY THE SERVICES TO ALTER OR TO CHANGE ANY PRESCRIBED TREATMENT OR THERAPY PROVIDED TO YOU BY A HEALTHCARE PROFESSIONAL. YOU ARE URGED TO SEEK THE ADVICE OF A HEALTHCARE PROFESSIONAL BEFORE BEGINNING OR MAKING CHANGES TO YOUR EXERCISE PROGRAM. YOU FURTHER AGREE THAT, BEFORE USING THE SERVICES, YOU WILL CONSULT YOUR DOCTOR OR HEALTHCARE PROFESSIONAL, ESPECIALLY IF YOU ARE AT RISK FOR PROBLEMS OR COMPLICATIONS RESULTING FROM BEGINNING OR CHANGING AN EXERCISE PLAN. IF ANY INFORMATION YOU RECEIVE OR OBTAIN FROM USING THE SERVICES IS INCONSISTENT WITH THE MEDICAL ADVICE FROM YOUR DOCTOR OR THERAPIST, YOU SHOULD ALWAYS FOLLOW THE ADVICE OF YOUR DOCTOR OR THERAPIST. THE SERVICES ARE NOT INTENDED FOR USE BY MINORS, PREGNANT WOMEN, OR ANYONE WITH A KNOWN RISK OF PROBLEMS OR COMPLICATIONS RESULTING FROM EXERCISE OR CHANGES IN EXERCISE PLAN. INDIVIDUALS WITH ANY TYPE OF HEALTH CONDITION ARE SPECIFICALLY WARNED TO SEEK PROFESSIONAL MEDICAL ADVICE PRIOR TO INITIATING ANY FORM OF EXERCISE PROGRAM. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES AND YOUR INTERACTIONS WITH ANY COACHES ENGAGED THROUGH THE SERVICES.
VIFIVE DOES NOT WARRANT THE ACCURACY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF ANY INFORMATION OR CONTENT PROVIDED ON OR THROUGH SERVICES, INCLUDING INFORMATION OR CONTENT OBTAINED FROM ANY THIRD PARTY, USERS OF VIFIVE, OR PUBLIC DATABASE. YOU ACKNOWLEDGE AND AGREE THAT NONE OF THE INFORMATION OR CONTENT PROVIDED BY OR THROUGH VIFIVE OR THE SERVICES HAS THE ABILITY TO DIAGNOSE, PRESCRIBE, OR PERFORM ANY TASK THAT CONSTITUTES THE PRACTICE OF MEDICINE OR PROFESSIONAL THERAPY SERVICES OR ADVICE. IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH VIFIVE OR THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION. IF YOU SUSPECT THAT YOU MAY HAVE A MEDICAL EMERGENCY, SEEK MEDICAL ATTENTION OR CALL 911 IMMEDIATELY.
15.4 THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
16. Limitation of Liability
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VIFIVE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VIFIVE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VIFIVE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$5.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17. 1. Generally. In the interest of resolving disputes between you and ViFive in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and ViFive agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VIFIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to 1250 Borregas Avenue, #41, Sunnyvale, CA 94089, or an email to email@example.com, in each case specifying: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once ViFive receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4. Arbitrator. Any arbitration between you and ViFive will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: 1250 Borregas Avenue, #41, Sunnyvale, CA 94089. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or ViFive may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or ViFive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
17.6. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.7. No Class Actions. YOU AND VIFIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ViFive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.8. Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9. Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and ViFive submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Services from our offices in California, and we make no representation that Materials included in the Services are appropriate or available for use in other locations.
18.4. Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.6. Contact Information. The Services is offered by ViFive, Inc., located at 1250 Borregas Avenue, #41, Sunnyvale, CA 94089. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
18.7. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
18.8. No Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
19. Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and ViFive only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions about these Terms, please feel free to contact us at email@example.com.