TERMS OF SERVICE
Visual History Beauty, LLC Terms of Service
Effective Date: Septmber 14, 2019
Please read this Terms of Service Agreement (“Agreement”) carefully. This Agreement is a legal contract between you (“User”) and Visual History Beauty, LLC (“Visual History”, “we” or “us”).
SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using www.visualhistorybeauty.com (“Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
Subject to Section 13.8 of this Agreement, F FIFTY reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. USE OF THE SERVICES AND F FIFTY PROPERTIES. The Website, the Services, and the information and content available on the Website and in the Services (as these terms are defined herein) (each, a “F Fifty Property” and collectively, the “F Fifty Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, F Fifty grants you a limited license to reproduce portions of F Fifty Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by F Fifty in a separate license, your right to use any and all F Fifty Properties is subject to the Agreement.
1.1 Updates. You understand that F Fifty Properties are evolving. As a result, F Fifty may require you to accept updates to F Fifty Properties that you have installed on your computer or mobile device. You acknowledge and agree that F Fifty may update F Fifty Properties with or without notifying you. You may need to update third-party software from time to time in order to use F Fifty Properties.
1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit F Fifty Properties or any portion of F Fifty Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other F Fifty Properties (including images, text, page layout or form) of F Fifty; (c) you shall not use any metatags or other “hidden text” using F Fifty name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of F Fifty Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access F Fifty Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of F Fifty Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in F Fifty Properties. Any future release, update or other addition to F Fifty Properties shall be subject to the Agreement. F Fifty, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any F Fifty Property terminates the licenses granted by F Fifty pursuant to the Agreement.
2.1. Registering Your Account. In order to access certain features of F Fifty Properties, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”).
2.2 Access Through a SNS. If you access the F Fifty Properties through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts, by allowing F Fifty to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to F Fifty and/or grant F Fifty access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating F Fifty to pay any fees or making F Fifty subject to any usage limitations imposed by such third-party service providers. By granting F Fifty access to any Third-Party Accounts, you understand that F Fifty may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through F Fifty Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through F Fifty Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on F Fifty Properties. Please note that if a Third-Party Account or associated service becomes unavailable or F Fifty’ access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through F Fifty Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND F FIFTY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. F Fifty makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and F Fifty is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using F Fifty Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of F Fifty Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify F Fifty immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or F Fifty has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, F Fifty has the right to suspend or terminate your Account and refuse any and all current or future use of F Fifty Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. F Fifty reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use F Fifty Properties if you have been previously removed by F Fifty, or if you have been previously banned from any of F Fifty Properties
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of F Fifty.
3. Purchasing Products.
3.1 Product Descriptions. Certain products available on our Website may be available exclusively online through the Website. These products may have limited quantities. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this Website is void where prohibited.
3.2 Order Acceptance. Each part of any order that you submit to F Fifty constitutes an offer to purchase. If you do not receive a message from F Fifty confirming receipt of your order, please contact our Customer Service department at firstname.lastname@example.org before re-entering your order. F Fifty’ confirmation of receipt of your order does not constitute F Fifty’s acceptance of your order. F Fifty is only deemed to have accepted your order once the product(s) you ordered have been shipped (the “Product”).
3.3 Order Issues. Although we strive to accept all valid orders, F Fifty reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
3.4 Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, F Fifty reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
3.5 Return Policy. F Fifty offers a thirty (30) day return policy on full sized products with proof of purchase. Notwithstanding the foregoing, product returns must contain at least one half the amount of volume of original product shipped, and will otherwise only be eligible for a refund at the discretion of F Fifty. F Fifty reserves the right to not offer this refund to any user suspected of abusing this return policy. If you receive such notice from F Fifty, regardless of whether such abuse is established, you acknowledge that by making subsequent purchases, you agree not to participate in the refund program.
3.6 Restrictions on Resale. To protect the intellectual property rights of F Fifty and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited, unless explicit permission is granted by F Fifty in writing. F Fifty reserves the right to decline any order that we deem to possess characteristics of reselling.
4. Fees and Purchase Terms.
4.1 You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account. You also agree to pay all applicable taxes. To make an order through the Services, you must provide valid payment information. By providing your payment information, you agree that F Fifty is authorized to immediately invoice your Account for all fees and charges due and payable to F Fifty hereunder and that no additional notice or consent is required. You agree to immediately notify F Fifty of any change in your billing address, debit card, credit card, or other relevant payment account information. F Fifty uses Braintree Payments (“Braintree”) and/or Shopify, Inc. (“Shopify”) as a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Services, you hereby consent and authorize F Fifty and Braintree and/or Shopify to share any information and payment instructions you provide to complete your transactions. You agree to immediately notify F Fifty of any change in your payment information by sending an e-mail to email@example.com. F Fifty reserves the right at any time to change its prices and billing methods. Please contact firstname.lastname@example.org regarding any billing disputes.
4.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for Subscriptions or any other subscription we may offer through the Services (each, a “Service Subscription Fee”) at the time you create your Account and subscribe to the Subscription (each, a “Service Commencement Date”). Except as set forth in any separate refund policy posted on the Services, all fees are non-refundable. No contract will exist between you and Company for the Services until F Fifty accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
4.3 The payments required under Section 4 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If F Fifty determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, F Fifty shall collect such Sales Tax in addition to the payments required under Section 4 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to F Fifty, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify F Fifty for any liability or expense F Fifty may incur in connection with such Sales Taxes. Upon F Fifty’ request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4.4 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official F Fifty communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
4.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fee.
5.1 F Fifty Properties. You agree that F Fifty and its suppliers own all rights, title and interest in F Fifty Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any F Fifty Properties.
5.2 Trademarks. and all related graphics, logos, service marks and trade names used on or in connection with any F Fifty Properties or in connection with the Services are the trademarks of F Fifty and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in F Fifty Properties are the property of their respective owners.
5.3 Other Content. You agree that you have no right, title, or interest in or to any Content that appears on or in F Fifty Properties.
5.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to F Fifty through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that F Fifty has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to F Fifty a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of F Fifty Properties and/or F Fifty’ business.
6. THIRD-PARTY SERVICES. F Fifty Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left F Fifty Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Ads are not under the control of F Fifty. F Fifty is not responsible for any Third-Party Websites or Third-Party Ads. F Fifty provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. INDEMNIFICATION. You agree to indemnify and hold F Fifty, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “F Fifty Party” and collectively, the “F Fifty Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any F Fifty Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. F Fifty reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with F Fifty in asserting any available defenses. This provision does not require you to indemnify any of the F Fifty Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to F Fifty Properties.
8. DISCLAIMER OF WARRANTIES
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF F FIFTY PROPERTIES IS AT YOUR SOLE RISK, AND F FIFTY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. F FIFTY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. This Section 8 does not affect in any way our return policy for goods purchased on the Website. If for any reason you are not satisfied with a purchase you make on the Website, please return it in accordance with the terms of our return policy, as described in Section 3.5.
A. F FIFTY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) F FIFTY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF F FIFTY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF F FIFTY PROPERTIES WILL BE ACCURATE OR RELIABLE.
B. ANY CONTENT ACCESSED THROUGH F FIFTY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS F FIFTY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
C. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. F FIFTY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM F FIFTY OR THROUGH F FIFTY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Certain state laws do not allow limitations on implied warranties. If these laws apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you, and you might have additional rights.
8.2 No Liability for Content. THE SERVICE CONTAINS OPINIONS AND VIEWS OF F FIFTY. F FIFTY DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT POSTED BY F FIFTY THAT ARE MADE AVAILABLE THROUGH THE SERVICES.
8.3 No Liability for Conduct of Third Parties or Products. YOU ACKNOWLEDGE AND AGREE THAT F FIFTY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD F FIFTY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8.4 Professional Advice Disclaimer.
A. THE CONTENT AND INFORMATION LOCATED ON THE F FIFTY PROPERTIES ARE DESIGNED FOR EDUCATIONAL AND INFORMATIONAL, PURPOSES ONLY AND IS NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE F FIFTY PROPERTIES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES.
B. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION OR CONTENT AVAILABLE ON THE F FIFTY PROPERTIES. THE USE OF INFORMATION AND CONTENT PROVIDED THROUGH THE F FIFTY PROPERTIES IS SOLELY AT YOUR OWN RISK.
C. NOTHING STATED OR POSTED ON THE F FIFTY PROPERTIES OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE INCLUDES, WITHOUT LIMITATION, PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
D. THE F FIFTY PROPERTIES ARE CONTINUALLY UNDER DEVELOPMENT AND F FIFTY MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE.
9. LIMITATION OF LIABILITY
9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL F FIFTY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Cap on Liability. IF YOU HAVE PURCHASED ANY PRODUCTS FROM F FIFTY THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE F FIFTY INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO F FIFTY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES. IF YOU HAVE NOT PURCHASED ANY PRODUCTS FROM F FIFTY THROUGH THE SERVICES, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE F FIFTY INDEMNITEES ARE LIABLE TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN F FIFTY AND YOU.
9.4 Exclusions. The laws of some states do not allow for the exclusion or limitation of certain damages. If these laws not apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you and you might have other rights.
10.1 Violations. If F Fifty becomes aware of any possible violations by you of the Agreement, F Fifty reserves the right to investigate such violations. If, as a result of the investigation, F Fifty believes that criminal activity has occurred, F Fifty reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. F Fifty is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in F Fifty Properties, including Your Content, in F Fifty’s possession in connection with your use of F Fifty Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of F Fifty, its Users or the public, and all enforcement or other government officials, as F Fifty in its sole discretion believes to be necessary or appropriate.
10.2 Breach. In the event that F Fifty determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for F Fifty Properties, F Fifty reserves the right to:
A) Warn you via e-mail (to any e-mail address you have provided to F Fifty) that you have violated the Agreement;
B) Delete any of Your Content provided by you or your agent(s) to F Fifty Properties;
C) Discontinue your registration(s) with any of F Fifty Properties, including any Services or any F Fifty community;
D) Discontinue your subscription to any Services;
E) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
F) Pursue any other action which F Fifty deems to be appropriate.
11. TERM AND TERMINATION.
11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use F Fifty Properties, unless terminated earlier in accordance with the Agreement.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used F Fifty Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any F Fifty Properties, unless earlier terminated in accordance with the Agreement.
11.3 At its sole discretion, F Fifty may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, F Fifty reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to F Fifty for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 5 through 9, 11, 13, and 14.
12. International Users. The Services are controlled and offered by F Fifty from its facilities in the United States of America. F Fifty makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with F Fifty and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with F Fifty, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or F Fifty may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: 2125 Girard Ave south, Minneapolis, MN 55405 email@example.com. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, F Fifty will pay them for you. In addition, F Fifty will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and F Fifty. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND F FIFTY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and F Fifty are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Minnesota. All other claims shall be arbitrated.
13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your F Fifty username (if any), the email address you used to set up your F Fifty account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.7 Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with F Fifty.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if F Fifty makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing F Fifty at the following address: F Fifty, 2125 Girard Ave S., Minneapolis, Minnesota 55405.
14. GENERAL PROVISIONS.
14.1 Electronic Communications. The communications between you and F Fifty may take place via electronic means, whether you visit F Fifty Properties or send F Fifty e-mails, or whether F Fifty posts notices on F Fifty Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from F Fifty in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that F Fifty provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
14.2 Release. You hereby release F Fifty Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of F Fifty Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of F Fifty Properties. If you are a Minnesota resident, you hereby waive Minnesota Civil Code, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a F Fifty Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
14.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without F Fifty’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure. F Fifty shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Governing Law. This Agreement and any action related thereto shall be governed and interpreted by and under the laws of the State of Minnesota, without regard to conflicts of law provisions. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and F Fifty agree that the exclusive jurisdiction of any dispute arising out of, or relating to, this Agreement or any dispute arising out of, or relating to, this Agreement or services provided in connection therewith shall be in the state and federal courts located in Minneapolis, Minnesota.
14.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to F Fifty Properties, please contact us at: F Fifty, 2125 Girard Ave S Street, Minneapolis, MN 55405. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.7 Where F Fifty requires that you provide an e-mail address, you are responsible for providing F Fifty with your most current e-mail address. In the event that the last e-mail address you provided to F Fifty is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, F Fifty’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to F Fifty to the address above. Such notice shall be deemed given when received by F Fifty by letter delivered by nationally recognized.
14.8 Waiver. No waiver of any provision herein shall be valid unless in writing and signed by an authorized representative of both you and F Fifty. F Fifty’ failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
14.9 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
14.10 Export Control. You may not use, export, import, or transfer F Fifty Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained F Fifty Properties, and any other applicable laws. In particular, but without limitation, F Fifty Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using F Fifty Properties, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use F Fifty Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by F Fifty are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer F Fifty products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.11 Entire Agreement. This Agreement is the entire and exclusive agreement between the parties, and it supersedes all previous communications, representations or agreements, either oral or written, between them with respect to this subject matter. No representations or statements of any kind made by any affiliate of F Fifty, which are not included in this Agreement, shall be binding on F Fifty or its affiliates.