Last Modified on January 27, 2017
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the Service. If you use the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the Service.
1. ToU Updates. FitTrace may update this ToU at any time, and FitTrace will post the updated version of this ToU on the Site and the App. You understand and agree that you will be deemed to have accepted the updated ToU if you use any aspect of the Service after the updated ToU is posted. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Service.
2. Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that FitTrace may make changes to any aspect of the Service at any time without notifying you in advance.
3. Termination of Service. FitTrace reserves the right to deny service to any person or entity at FitTrace’s sole and absolute discretion. You acknowledge and agree that FitTrace may stop providing the Service or restrict your use of the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU or if FitTrace suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If FitTrace disables your access to your account, you may be prevented from accessing the Service, your account details or any materials contained in your account.
4. Accounts and Security.
4.1. Account. To access the Service, you must have an account. You can create a personal user account (a “Personal Account”) or an organization account (an “Organization Account”) by completing the registration process. Organization Accounts may then create Personal Accounts for members of its organization, or alternatively existing Personal Accounts may be joined to an Organization Account. You may be required to provide information about yourself and/or any Personal Account you register on behalf of your Organization Account as part of the registration process or your continued use of the Service. You agree that any registration and billing information that you submit to FitTrace will be correct, accurate and up to date. You further agree, if you are an Organization Account, that you will not create a Personal Account for any member of your organization without obtaining their prior consent.
4.2. Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. FitTrace may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToU or posting such changes elsewhere on the Site or the App. If there is a dispute regarding your payment of fees, or the Service, FitTrace shall have the right to terminate your account without prior notice. For the avoidance of doubt, if you purchase a monthly (or other periodic) membership, you agree and acknowledge that your subscription has an initial and recurring payment charge at the then-current subscription rate, and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by FitTrace after the expiration date of your payment card. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
4.3. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify FitTrace immediately if you become aware of any unauthorized use of your password or of your account.
4.4. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else. Notwithstanding the foregoing, Organization Accounts may create Personal Accounts for members of its organization as set forth in Section 4.1.
4.5. Cancellation by You. You have the right to cancel your subscription or your account at any time. You may cancel either your subscription or your account by following the cancel instructions on the Site or the App, by contacting us via email at firstname.lastname@example.org, or by calling us at (323) 484-3484. If you cancel a subscription, you may use your subscription until the end of your then-current subscription term. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content.
4.6. Termination by FitTrace. FitTrace may at any time terminate your account if:
a. FitTrace determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to FitTrace;
b. FitTrace determines it is required by law to terminate your account; or
c. FitTrace decides to stop providing the Service or critical portions of the Service.
4.7. Effect of Account Termination or Cancellation. 4.7. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow your account to lapse, you may reactivate that account at any time by logging in to the Service through the Site or the App and reactivating the account. Accounts terminated by FitTrace for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.
5. Use Requirements.
5.1. License Grant. Subject to the terms and conditions of this ToU, FitTrace hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Service, which may only be used in accordance with this ToU and any rules, restrictions or documentation set forth by FitTrace from time to time.
5.2. Installation. In connection with the Service, you may install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by FitTrace.
5.3. Updates. FitTrace may require that you download and install updates to the App from time to time. You acknowledge and agree that FitTrace may update the Service from time to time with or without notifying you, and may add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that FitTrace has no obligation to make the Service available to you, make any subsequent versions of the Site available to you or to continue to support the Service in any way. You acknowledge that your access to the Service may not be continuous, features may change during your use of the Service, and FitTrace may terminate your access to the Service or stop offering the Service at any time.
6. Restrictions and Conditions of Use.
6.1. Use of the Service. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Service. FitTrace reserves the right to add or remove information, content or Services from the Site at any time at its sole discretion.
6.2. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site or the App. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Service.
6.3. No Violation of Laws. You agree that you will not, in connection with your use of the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.4. Use Restrictions. You may not connect to or use the Service in any way that is not expressly permitted by this ToU.
a. You may not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of FitTrace; or (iv) make any false, misleading or deceptive statement or representation regarding FitTrace or the Service.
b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Service; (iii) use the Service for any commercial purpose unless consistent with this ToU and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Service, unless you are specifically authorized to do so in a separate written agreement with FitTrace; (iv) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Service to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the foregoing, you agree that you will not use the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by FitTrace in its sole discretion.
6.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service which you are not authorized to access, including, without limitation, email addresses or body composition data of other account holders; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Service.
6.6. Violation of this ToU. You acknowledge and agree that you are solely responsible, and FitTrace has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. FitTrace may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.
7.1. Links from the Site. The Site may contain links to websites operated by other parties. FitTrace provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of FitTrace and FitTrace is not responsible for the content available on the other websites. Such links do not imply FitTrace’s endorsement of information or material on any other website and FitTrace disclaims all liability with regard to your access to and use of such linked websites.
7.2. Links to the Site. Unless otherwise set forth in a written agreement between you and FitTrace, you must adhere to FitTrace’s linking policy as follows: (a) the appearance, position and other aspects of any link to the Site may not be such as to damage or dilute the goodwill associated with FitTrace’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with FitTrace; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. FitTrace reserves the right to revoke its consent to the link at any time and in its sole discretion.
8. Intellectual Property.
8.1. Trademarks. The FitTrace name and logo are trademarks and service marks of FitTrace. Unless permitted in a separate written agreement with FitTrace, you do not have the right to use any of FitTrace’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
8.2. Ownership. You acknowledge and agree that FitTrace, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that FitTrace has designated as confidential and you agree not to disclose such information without FitTrace’s prior written consent.
8.3. Third Party Software and Services. The Service may be incorporated into services owned and controlled by third parties. Use of such third-party services is subject to the terms and conditions of the applicable agreements with such third parties, and you agree to look solely to the applicable third party and not to FitTrace with respect to your rights in relation to such third-party services.
9. Social Networks. The Service includes features that operate in conjunction with certain third-party social networking websites, such as Facebook and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third-party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. You understand and acknowledge that the Service is not endorsed or certified by any of the aforementioned social networking websites.
11. Location. The Service is operated by FitTrace in the United States. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. Submitted Content.
12.1. Content of Communications. FitTrace is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service or any materials submitted or made available through the Service via any function which allows a user to post or share content (“Submitted Content”). By using the Service, you agree that any content that you submit may be viewable by other users of the Service. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. FitTrace may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, FitTrace may in its sole discretion remove such content and terminate your account if you submit any content that is in breach of this ToU.
12.2. FitTrace does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant FitTrace a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and FitTrace’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that FitTrace may still have access to such Submitted Content and that the above license granted by you to FitTrace will remain in effect despite your removal of the Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 12.2.
12.3. You acknowledge and agree that: (a) by using the Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (b) you are solely responsible for, and FitTrace has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on or through the Service; (c) FitTrace does not guarantee any confidentiality with respect to your Submitted Content; and (d) FitTrace is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) FitTrace has no control over and is not responsible for the use of Submitted Content by its users, including any user that has uploaded Submitted Content to a personal device; and (ii) FitTrace may not be able to remove Submitted Content that is uploaded onto a user’s device. FitTrace does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
12.4. You acknowledge that FitTrace has the right to pre-screen your Submitted Content, but has no obligation to do so. At FitTrace’s sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form. In addition, FitTrace and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.
12.5. You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will FitTrace be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
The Service is not directed toward children under 13 years of age, and FitTrace does not knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to FitTrace.
14. Disclaimer of Warranties.
14.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITTRACE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
14.3. FITTRACE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE.
14.4. FITTRACE DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
15. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
15.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITTRACE AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
a. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF FITTRACE OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICE.
15.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF FITTRACE OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of FitTrace and the Related Parties shall be limited to the fullest extent permitted by law.
16. Indemnification. You agree to defend, indemnify and hold FitTrace and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Service; or (b) your breach of this ToU or any other policies that FitTrace may issue for the Service from time to time.
17. Governing Law; Jurisdiction.
This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and FitTrace agree that, except as otherwise provided in Section 18 below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, FitTrace shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration.
18.1. Arbitration Procedures. You and FitTrace agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and FitTrace will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and FitTrace may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
18.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone or internet connection appearances.
18.3. Limitations. You and FitTrace agree that any arbitration shall be limited to the Claim between FitTrace and you individually. YOU AND FITTRACE AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
18.4. Exceptions to Arbitration. You and FitTrace agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of FitTrace’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
18.6. Severability. You and FitTrace agree that if any portion of this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor FitTrace will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, California, United States of America, and you and FitTrace agree to submit to the personal jurisdiction of that court.
19.1. ToU Revisions. This ToU may only be revised in a writing signed by FitTrace, or published by FitTrace on the Site.
19.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FitTrace as a result of this ToU or your use of the Service.
19.3. Assignment. FitTrace may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without FitTrace’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
19.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
19.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in Section 18.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
19.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by FitTrace of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
19.7. Notices. All notices given by you or required under this ToU shall be in writing and sent to email@example.com.
19.8. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.9. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable.
19.10. Equitable Remedies. You acknowledge and agree that FitTrace would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
19.11. Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and FitTrace with respect to the Service and supersedes any and all prior agreements between you and FitTrace relating to the Service.