PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE FIND YOUR TRAINER APPLICATIONS OR ANY SERVICES PROVIDED BY US, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE FIND YOUR TRAINER WEBSITE, APPLICATION OR ANY SERVICES PROVIDED BY US.
FYT may modify this Agreement's terms and conditions at any time without notice. Continued use of the Services and the FYT Site after a change in this Agreement, or after implementation of any other new policy constitutes acceptance of such change or policy. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY REVISED VERSION OF THIS AGREEMENT, PLEASE DO NOT USE THIS SITE OR OUR SERVICES.
1.USE OF SERVICE; NO MEDICAL ADVICE
You understand that our Services are intended for use only by individuals healthy enough to perform strenuous exercise and follow a general nutrition plan and, may not be suitable or recommended to all individuals, including but not limited to, pregnant women or people who suffer from an underlying medical condition or who have special dietary needs. Our Services may utilize the Physical Activity Readiness Questionnaire (PAR-Q) in assessing the safety of, or possible risks of, exercising for you based on your answers. This assessment requires that all information provided by you is true, complete and correct and further, requires that you not omit any relevant information regardless of whether we have asked about such information. Furthermore, in becoming a user of the Services, you affirm that a physician has specifically approved your use of the Services, or that all of the following statements are true:
- no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician;
- you have never felt chest pain when engaging in physical activity;
- you have not experienced chest pain when not engaged in physical activity at any time within the past month;
- you have never lost your balance because of dizziness and you have never lost consciousness;
- you do not have a bone or joint problem that could be made worse by a change in your physical activity;
- your physician is not currently prescribing drugs for your blood pressure or heart condition;
- you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems;
- you are not pregnant, breastfeeding or lactating;
- you do not have a condition of high-cholesterol, diabetes, obesity or arthritis; and
- you do not know of any other reason you should not exercise or follow a general nutrition plan.
BEFORE USING OUR SERVICES, YOU SHOULD CONSULT YOUR DOCTOR OR OTHER PROFESSIONAL HEALTHCARE PROVIDER. THE USE OF ANY INFORMATION OR PROGRAMS PROVIDED ON THE SERVICES IS SOLELY AT YOUR OWN RISK. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
IF AT ANYTIME DURING YOUR EXERCISE WORKOUT YOU DO NOT FEEL WELL, MAKE SURE YOU STOP IMMEDIATELY AND SEEK MEDICAL ADVICE OF A MEDICAL PROFESSIONAL IF REQUIRED.
THE CONTENT AVAILABLE VIA THE SERVICES IS PROVIDED WITH THE UNDERSTANDING THAT NEITHER THE COMPANY NOR ITS AFFILIATES OR USERS ARE ENGAGED IN RENDERING MEDICAL, COUNSELING, LEGAL, OR OTHER PROFESSIONAL SERVICES OR ADVICE. SUCH CONTENT IS INTENDED SOLELY AS A GENERAL EDUCATIONAL AID. IT IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. OUR RECOMMENDED WORKOUT PLANS AND EXERCISES OR NUTRITION PLANS, EVEN IF THEY ARE TAILORED TO INDIVIDUAL USERS, SHOULD NOT BE MISCONSTRUED AS MEDICAL ADVICE, DIAGNOSES OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION AND BEFORE STARTING ANY NEW TREATMENT.
Neither the Company nor any of its trainers or Affiliates will be liable for any physical or mental injury or illness that may result, whether directly or indirectly, from any of our recommended workout plans or exercises or nutrition plans. While we may provide guidelines such as written descriptions, pictures, or videos describing how to perform specific exercises or activities, you assume sole responsibility for performing those exercises or activities with proper form, as risk of injury or illness increases with improper form.
3. NO SHOW POLICY
FYT is committed to providing superior quality services to its USERS and Trainers. To assist us in maintaining a consistently high level of service with the participating fitness clubs and trainers, USERS are asked to cancel or reschedule online any session that they will be unable to honor at least 24 hours in advance of the start time of the original session in order to receive a credit for the full value of your original session. If you are unable to keep your session and you fail to cancel, you will forfeit the full value of your session and no credit will be given.
FYT credits are not redeemable for cash or cash equivalents, are non-transferable and may not be applied towards prior purchases. Other restrictions may apply. Unless you paid us in full for any credits, we reserve the right to rescind any credits subject to reasonable notice to you.
5. DEVICE USAGE TERMS AND CONDITIONS
You acknowledge and agree that your use of the FYT Site must also be in accordance with the usage rules established by your mobile device platform or service provider.
6. REGISTRATION DATA; ELIGIBILITY
To access certain areas and features of the Services, you may be required to register with FYT. If you register, you will (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms made available via the Services (the "Registration Data"); (ii) maintain and promptly update the Registration Data, and any other information you provide to FYT, in order to keep it accurate, current and complete; and (iii) accept all risk of unauthorized access to the Registration Data and any other information you provide to FYT.
FYT is under no obligation to retain a record of your account or any data or information that you may have stored by means of your account or your use of the Services. You are only authorized to create and use one account for the Services and are prohibited from using alter egos or other disguised identities when using the Services. You are under no obligation to use or continue to use the Services and may stop using the Services without notice to FYT.
You may not use the Services if you are under 18 years of age (or the age of majority in your jurisdiction).
7. USAGE GUIDELINES
Any and all other uses which are unlawful or in violation of this Agreement's terms and conditions are prohibited. FYT reserves the right, in its sole discretion, to refuse service, terminate accounts, remove or edit content, or cancel sessions.
8. EMAIL POLICY
You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that these communications be in writing.
9. INTELLECTUAL PROPERTY AND GRANT OF RIGHTS TO USER
The materials and services provided for and depicted on the FYT Site are protected by copyright, trademark, patent and other intellectual property laws. All text, graphics, video, data, software or other content on the FYT Site ("FYT Content") is provided to USER by FYT for the sole purpose of using the Services. USER shall not copy, display, modify, create derivative works of, publish, rent, lease, redistribute, sublicense, sell, decompile or reverse-engineer the FYT Content or any information, software, or services provided by FYT hereunder. The FYT Content may be modified from time to time by FYT in its sole discretion. Except as expressly set forth herein, no license is granted to USER for any other purpose, and any other use of the Services or the FYT Content by USER shall constitute a material breach of this Agreement. Nothing in this Agreement shall affect any rights of FYT or its licensors in the Services or FYT Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets or other intellectual property rights. No license, right or interest in any trademarks of FYT or any third party is granted under this Agreement. If you violate any of the foregoing restrictions, your right to use of the Services will immediately cease, and you will have infringed the copyright and other rights of FYT, which may subject you to prosecution and damages. FYT reserves all rights not expressly granted to you in these Terms.
10. LICENSE TO USE SERVICES
11. CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
In exchange for FYT providing you with access to the Services, you consent to FYT collecting and using technical data, personal information and related information in connection with your use of the Services, including, but not limited to, contact information and technical information about your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Services and of software updates, product support and other services. You also consent to our communicating with you about the Services.
12. PRODUCT DESCRIPTIONS AND CONTENT
FYT attempts to be as accurate as possible with regards to Content on our websites and Services. If you have reason to believe that a session you purchased through the Services does not meet the claims advertised within the Services, you must contact FYT immediately (and in any case no later than three business days following the session date). Your failure to contact us within in this period may affect our ability to investigate and resolve your claim.
While we strive to keep the Content accurate, complete, and up-to-date, we cannot and do not guarantee, and are not responsible for, the accuracy, completeness, or timeliness of any Content, whether provided by us or our affiliates or by Users. The Company does not have any obligation to prescreen, edit, or remove any Content provided by Users that is posted on or available through the Services. Any opinions, advice, statements or other information expressed or made available by Users or third parties, including but not limited to bloggers, are those of the respective User or other third party and not of the Company. We do not endorse and are not responsible for the accuracy or reliability of any opinion, advice or statement made on the Services.
13. PURCHASING SESSIONS FROM FYT
When you purchase sessions using the Services, you are representing the following: (i) any payment information you supply is true and complete; (ii) charges incurred by you will be honored by your credit card company and (iii) you will pay the posted price for the session, even if you are unable to attend that session. Posted session rates include applicable taxes. You are responsible for paying the fitness club or trainer directly for any additional services or charges you incur once you are at the session.
14. USER CONTENT AND YOUR CONDUCT
The Services includes forums and other interactive areas or services (“Interactive Areas”) in which you or other users can create, post or share content, ratings, reviews, materials, data, information, text, photos and/or other materials (“User Content”). You are solely responsible for your use of such Interactive Areas and the User Content you share.
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
- User Content that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
- User Content that is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or that would otherwise create liability or violate any local, state, provincial, national or international law;
- User Content that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual property right, or any other right, of any party;
- Unsolicited promotions, political campaigning or commercial messages (SPAM), or any chain messages or User Content designed to deceive or trick a user of the Service;
- Private information of any third party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; and
- Viruses, corrupted data or other harmful, disruptive or destructive files or code, script or other software designed to automate any functionality on the Service without FYT's express written consent.
You further agree that you are solely responsible for your conduct while using the Services and that you will not do any of the following in connection with the Services or its users:
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
- Accessing, tampering with, or using non-public areas of the Website, the Company’s computer systems, or the technical delivery systems of the Company’s providers; attempting to probe, scan, or test the vulnerability of any Company system or network or breaching any security or authentication measures;
- Collect any personally identifiable information about other users (except as specifically authorized by FYT), or intimidate, threaten, stalk or otherwise harass or cause discomfort to other users of the Services;
- Use the Services for any commercial purpose;
- Use the Services for any illegal or unauthorized purpose or engage in, encourage or promote any illegal activity or any activity that violates these Terms or any other rules or polices established from time-to-time by FYT;
- Create an account, post any content, or otherwise use the Services if you are not at least 18 years of age;
- Modify, adapt, hack or emulate the Services;
- Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services or users of the Services or third- parties; and
- Infringe upon or violate the rights of FYT, our users or any third party.
- Attempting to access or search the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than tools that access or search the Services through software and/or search agents provided by the Company or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
- Using any meta tags or other hidden text or metadata utilizing a Company trademark, logo, URL or product name;
- Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way using the Services to send altered, deceptive or false source-identifying information;
- Attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Implement any manual processes to monitor or copy FYT Content from the FYT Site without express written permission.
- Utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the FYT Site.
- Collecting or storing any personally identifiable information from the Services from other users of the Services without their express prior permission;
- Impersonating or misrepresenting your affiliation with any person or entity;
- Violating any applicable law or regulation;
- Contacting anyone who has asked not to be contacted, or making unsolicited contact with anyone for any commercial purpose;
- Posting false or irrelevant content, or repeatedly posting the same or similar content;
FYT takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or made available via the Services. FYT will not be liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter through the Services. Your use of the Services, including any Interactive Areas, is at your own risk. Enforcement of the user content and conduct rules set forth in these Terms is solely at FYT's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by these rules.
If you do submit material, and unless we indicate otherwise, you grant FYT a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, and display such content throughout the world in any media. You represent and warrant that you own or otherwise control all of the rights to the content that you submit; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify FYT for all claims resulting from content you supply. FYT has the right but not the obligation to monitor and edit or remove any activity or content, including but not limited to content that violates the standards of this website, as determined by FYT in its sole discretion.
15. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Services, please notify the Company’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing: An electronic or physical signature of a person authorized to act on behalf of the copyright owner; Identification of the copyrighted work that you claim is being infringed; Identification of the material that is claimed to be infringing and where it is located on the Services; Information reasonably sufficient to permit the Company to contact you, such as your address, telephone number, and e-mail address; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Promptly after receipt of a valid removal notification, we will remove or disable access to the allegedly infringing content. We will also notify the party that posted it of your claim that the material is infringing and will give that party an opportunity to send us a written counter-notification, which may result in us re-posting the content if we believe that it is not infringing.
Any DMCA requests and any other feedback, comments, requests for technical support or other communications should be directed to customer service through firstname.lastname@example.org.
16. THIRD-PARTY INTERACTIONS
Your use of the Services and your contact, interaction or dealings with any third parties arising out of your use of the Services is solely at your own risk. The fitness clubs, trainers, advertisers, other third parties and other suppliers of FYT are not agents or employees of FYT. FYT does not make any representations or warranties with respect to any content or privacy practices, or otherwise with respect to such third parties or any items or services that may be obtained from such third parties. FYT is not responsible for, and will not be held liable for, the acts, errors, omissions, representations, warranties, breaches or negligence of any of these fitness clubs, trainers advertisers, other third parties or other suppliers for any personal injuries, death, property damage, loss, theft or other damages or expenses resulting therefrom.
If there is a dispute between you and any such third party, you understand and agree that the FYT shall be under no obligation to become involved. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANY SUCH THIRD PARTY, YOU HEREBY RELEASE THE COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS IN RIGHTS FROM ALL CLAIMS, DEMANDS AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE SERVICES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, AND/OR ANY SIMILAR PROVISION OF THE LAW OF ANY OTHER JURISDICTION, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
If you breach any of the terms or conditions of this Agreement or FYT discontinues the FYT Site, these Terms will automatically terminate. In the event of the termination of this Agreement for any reason, the license granted to you in this Agreement will immediately terminate and you must immediately stop all use of the Services (including the FYT Site). All of the sections of this Agreement that by their nature should survive termination will survive any termination of this Agreement. For avoidance of doubt, the License section will not survive termination of this Agreement. Any use of the Services after termination is unlicensed and is in violation of the copyright and other rights of FYT. FYT and our affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole discretion.
18. UNLAWFUL ACTIVITY
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses and traffic information.
19. INFORMATION AND PRESS RELEASES
The FYT Site may contain information and press releases about us. We disclaim any duty or obligation to update this information. Information about companies other than ours contained in any press release or otherwise should not be relied upon as being provided or endorsed by us.
20. LIABILITY LIMITATIONS
21. DISCLAIMER OF WARRANTY
YOU AGREE THAT THE USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE INFORMATION, PROGRAMS, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED ON THE FYT SITE, INCLUDING, WITHOUT LIMITATION, THE SERVICES AND THE FYT CONTENT, ARE PROVIDED TO USER ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. FYT DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE FYT SITE, THE FYT CONTENT AND RELATED MATERIALS PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. THE COMPANY DOES NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. THE COMPANY MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. THE COMPANY DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE SERVICES. THE COMPANY DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SERVICES. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
You will defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened third-party suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to (i) your conduct; (ii) your violation of this Agreement or your violation of the rights of any third party; or (iii) any User Content you share.
23. THIRD-PARTY CONTENT
FYT may provide third-party content via the Services and may provide links to webpages and content of third parties (collectively, “Third-Party Content”) as a service to those interested in this information. FYT does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding Third-Party Content including, but not limited to, its accuracy or completeness. FYT is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use Third-Party Content at their own risk.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
25. NO ASSIGNMENT
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by USER, but may be so transferred, assigned or delegated by FYT.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
27. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
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 you and FYT or FYT's employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights 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. You are 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.
You and FYT must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR FYT MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) 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; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, FYT will pay as much of your 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, (d) FYT also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) 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 shall be determined by the applicable law.
Notwithstanding the foregoing, either You or FYT may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in the paragraph 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 Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither You nor FYT shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
28. CHOICE OF LAW
The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
REVISION DATE: June 1, 2020