Last Updated: January 18, 2019
Pricing and auto-renew policy:
Menud is a free mobile application that offers in-app subscriptions.
All subscriptions are one month long and renew until cancelled unless otherwise noted.
After free trial, payment will be charged to iTunes Account at confirmation of purchase.
Subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period.
The account will be charged for renewal within 24-hours prior to the end of the current period.
Subscription start at $0.99 USD.
Subscriptions may be cancelled by going to Apple Account Settings after purchase.
Welcome to Menud by Menud Co.. and its partner Menud Co. and its affiliates (“we” or “us”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our mobile device application (“App”) and website, located at Menud.co or otherwise as designated by us (the “Site”), and the information and services accessible via our App. To make these Terms easier to read, the Site and our platform and services and App are collectively called the “Services.”
THESE TERMS OF SERVICE REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, AND INCLUDE A CLASS ACTION WAIVER. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Agreement to Terms
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or App or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site or App, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you can’t use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with us and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to access and use the Services, you’ll have to create an account (“Account”). You can do this via the Site or the App.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
Through the Services, we provide nutritional, dietary and related information services including:
• The ability to select a wellness, health, fitness and/or epicurean expert or authority or pundit or specialist for the provision of nutritional and/or related dietary and/or culinary information (each, an “Influencer”). Some Influencers are free to follow; Some Influencers require an in-app subscription to follow. The customer is fully aware before a purchase is made if the Influencer they wish to follow is a free or a premium subscription.
• The ability to follow specific restaurant dish recommendations at provided by that Influencer;
• Subscriptions to that Influencer’s recommendations.
• Subscriptions to that Influencer’s recommendations.
• Subscriptions to display nutritional information.
The Influencer offered for your selection upon are based on your interest in that Influencer as derived from social media feeds, learned in-app behaviors like searching for similarly profiled Influencers or dishes recommended by similarly profiled Influencers, information about your fitness or nutritional or wellness goals, your interest in exploring new foods, dishes, cuisines, and culinary flavors, and other information that you provide to us when registering your Account. While we present these Influencers for your selection, you assume full responsibility for your Influencers selection and for choosing the Influencers best suited to your goals, wants, needs, interest and desires. If you would like to change your Influencers, please contact us at email@example.com and we can swap your subscription to another Influencer; only one swap per influencer is allowed.
You acknowledge that Menud Co. solely provides the Menud App and technology platform to power the Services and the Services are intended to connect you with a Influencer who may be contracted or employed through one of our affiliated entities or other related or unrelated entities.
We endeavor to ensure positive interactions between you and your Influencer; however, we make no representations about the suitability, reliability, or accuracy of the Influencer’s recommendations. We may monitor the provision of the Services to ensure the quality of interactions with your Influencer.
Some Influencer subscriptions are considered premium content and require an in-app purchase to initiate access to that content. Premium subscriptions are billed monthly through the Apple App store. Users will not be billed nor can they subscribe to premium content without opting into the premium subscription service and authorizing payment through the Apple App Store. Each Influencer subscription is charged individually unless designated as a bundle or package or group or promotion.
Nutritional information can be displayed when you subscribe to that feature. While we present nutritional information for specific meals and recipes, you assume full responsibility for determining national information when or if you substitute ingredients in a recipe and/or modify the cooking instructions and/or otherwise alter a recipe in any way.
You agree to pay, and authorize our third party payment processor to charge using your selected payment method, for all applicable fees and taxes that may accrue in relation to your subscription to use the Services. The fees for your subscription to use the Services are shown on the Influencer selection page or in a location as otherwise designated by us. All fees are non-refundable except as required by law. You are responsible for providing complete and accurate billing and contact information to the payment processor. We may suspend or terminate the Services if fees are 30 days past due. Unless otherwise specified by us, all fees on a monthly basis and will accrue on a rolling basis from your date of subscribing to the Influencer (for example, if you Subscribe to an Influencer on the 15th day of the month, you will be billed at the time of registration and on approximately the 15th day of each month thereafter).
If you want to terminate your subscription to the Services, you must notify us of this fact by contacting firstname.lastname@example.org and you will no longer be charged the monthly fee starting in the month immediately after the month in which you provided your notice of termination. You will not be refunded for any partial month’s subscription to use the Services. We may revise the fees for the Services by providing at least 30 days prior notice by posting the fees on the Site.
YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED, AT THE THEN-CURRENT NON-PROMOTIONAL SUBSCRIPTION RATE, VIA THE PAYMENT METHOD YOU PROVIDE, UNTIL YOU CANCEL. YOU MAY CANCEL BY EMAILING email@example.com UP TO FIVE (5) BUSINESS DAYS PRIOR TO THE START OF THE RENEWAL PERIOD. IF YOU CANCEL YOUR SUBSCRIPTION, YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. HOWEVER, EXCEPT AS EXPLICITLY PROVIDED BELOW, YOU WON’T BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
Menud Co. will occasionally offer a referral program to current users.
The MenudRewards Referral Program is available to all existing customers (Referring Customer) holding an active Menud account.
You must be 18 years or older to be part of this Program. Only customers in the US, Canada, New Zealand and Australia are eligible for the MenudRewards referral program. To be eligible for the MenudRewards Referral Program the Referring Customer must share a unique and attributable link from the Menud App to a Referred Contact who is not an existing customer of Menud or the MenudRewards Referral Program, or currently in negotiations with Menud about becoming a customer.
A referral will be deemed successful when a Referred Contact creates a Menud account and spends at least 120 seconds on the application within two weeks of being referred. For each successful referral MenudRewards will purchase from Amazon Gift Card Credit to the value of as much as $4000 USD. Amazon gift credit may be used by the referring customer for anything of that persons choosing on the Amazon marketplace. Menud is not responsible for the purchase or the item(s) purchased by the referring customer.
MenudRewards reserves the right to change the gift credit provider without notice and as it sees fit.
The referred company cannot be an owner, employee, Agent or Sub Agent for the referred business. Offer not valid and rewards are not payable for self-referrals.
Menud reserves the right to suspend, cancel and or prohibit a customer from participating in the MenudRewards referral program if a customer is using bots, advanced technology, paid networks, or illicit means to aggregate unauthentic referrals. Menud reserves the right to analyze the customer’s referrals and negate payment for accrued referrals is the referring customer used bots, advanced technology, paid networks (“click farms”), or illicit means to aggregate unauthentic referrals. Menud reserves the right to cancel the MenudRewards Referral Program without prior notice in its entirety or for a specific referrer at any time for any reason.
All questions or disputes regarding eligibility for the MenudRewards Referral Program will be resolved by MenudRewards in its sole discretion.
We respect your privacy and so we collect and process all data in accordance with US data protection legislation currently in force.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
We do not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, we and our licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to us a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Us
Subject to your compliance with these Terms, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy and display the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Rights and Terms for Apps
Rights in App Granted by Us
Subject to your compliance with these Terms, Menud Co.. and its partner Menud Co. hereby grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. We reserve all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:
• These Terms are concluded between you and us, and not with the App Provider, and that we (not the App Provider), are solely responsible for the App.
• The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
• In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of us.
• The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, we will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
• The App Provider and its subsidiaries are third party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
• You must also comply with all applicable third party terms of service when using the App.
• You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
General Prohibitions and Our Enforcement Rights
You agree not to do any of the following:
• Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give Menud to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
• Use, display, mirror or frame the Services, or any individual element within the Services, our name, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page or in the App, without our express written consent;
• Access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
• Attempt to probe, scan, or test the vulnerability of any of our systems or networks or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services or Content;
• Attempt to access or search the Services or Content or download Content from 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 the software and/or search agents provided by us or other generally available third party web browsers;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
• Use any meta tags or other hidden text or metadata utilizing any of our trademarks, logos, URLs or product names without our express written consent;
• Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
• Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
• Impersonate or misrepresent your affiliation with any person or entity;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe the rights of copyright holders. Please see our Copyright Policy for further information.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty and professional/medical services disclaimers, assumption of risk and indemnity, limitations of liability, and dispute resolution provisions.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
No Professional Services or Advice; No Doctor-Patient Relationship
We provide the Services for informational purposes only. You acknowledge that Menud Co.. and its partner Menud Co. solely provides the App and related technology platform for the Services, but that Menud Co.. and its partner Menud Co. does not provide any medical or healthcare services of any kind. We provide a platform so that a Influencer may provide you with restaurant dish recommendations relating to your fitness, weight loss and/or nutritional or wellness goals and culinary interests. YOU ACKNOWLEDGE THAT THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, PROFESSIONAL OR MEDICAL ADVICE OR OPINION OF ANY KIND AND THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE OR OPINION OF ANY KIND. THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND US.
YOU HEREBY AGREE THAT, BEFORE USING THE SERVICES, YOU WILL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM CHANGES IN YOUR DIET OR LIFESTYLE. In becoming a user of the Services, you affirm that a physician has specifically approved your use of the Services. The Services are intended for use only by individuals healthy enough to make changes to their diets and lifestyles, and are not intended for use by minors or individuals with any type of health condition that makes the kind of changes to diet or lifestyle suggested by the Services unsafe or inappropriate. You should discontinue diet or other lifestyle changes in cases where such changes cause pain or severe discomfort, and should consult a medical expert prior to returning to diet or other lifestyle changes in such cases. We reserve the right to deny you access to the Services for any reason or no reason, including if we determine, in our sole discretion, that you have certain medical conditions.
Assumption of Risk and Indemnity
Using the Services involves the risk of physical or mental injury or illness. Specific risks vary from one diet or lifestyle change to another and the risks range from minor injuries or illness to major injuries or illness, such as catastrophic injuries including death. IN CONSIDERATION OF YOUR USE OF THE SERVICES, YOU UNDERSTAND AND VOLUNTARILY ACCEPT THIS RISK AND AGREE THAT WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE FOR ANY INJURY, INCLUDING, WITHOUT LIMITATION, PERSONAL, BODILY, OR MENTAL INJURY, ECONOMIC LOSS OR ANY DAMAGE TO YOU, YOUR SPOUSE, UNBORN CHILD, OR RELATIVES RESULTING FROM YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF US OR ANYONE ON OUR BEHALF. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE ARE PROVIDING INFORMATIONAL SERVICES ONLY AND MAY NOT BE HELD LIABLE FOR DEFECTIVE PRODUCTS.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY US AND OUR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE SERVICES OR CONTENT; OR (II) YOUR VIOLATION OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
Limitation of Liability
NEITHER WE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EXCEPT SOLELY TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO US FOR USE OF THE SERVICES.
THE ASSUMPTION OF RISK AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and we agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court; and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide us with written notice of your desire to do so by email to firstname.lastname@example.org, or regular mail to 550 East Las Olas Blvd, Fort Lauderdale, FL 33334, within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice“). If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action, or if you timely provide us with an Arbitration Opt-Out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-Out Notice, you acknowledge and agree that you and we are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and we otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general form Demand for Arbitration and a separate form for Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and we otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding anything to the contrary in these Terms, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: by us (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of us. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact us at firstname.lastname@example.org,188 Front St, Franklin TN 37064.