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Terms of Service

BY CLICKING “I AGREE” OR ACCESSING OR USING OUR DEVICES, APPLICATION, WEBSITE OR RELATED MATERIALS AND SERVICES, INCLUDING COMPANY’S FREE OR PREMIUM SERVICES (COLLECTIVELY, THE “SERVICES” OR “PLATFORM”) IN ANY WAY AS MADE AVAILABLE OR ENABLED BY MOTIVISION GROUP INC. (“COMPANY,” “WE,” OR “US”), YOU AGREE TO THESE TERMS OF SERVICE (THE “TOS” OR “AGREEMENT”). You may not access or use the Services, or accept these TOS, if (a) you are not of legal age to form a binding contract with Company; or (b) you are prohibited by law from receiving or using the Services.

 

Company may make certain functions and features of the Services available without charge, (collectively “Free Services”) and may make other functions and features of the Services for a charge (“Premium Services”). You will not be provided Premium Services, unless you pay Company the required fees published on our website or otherwise identified by Company. 

 

Company may change these TOS from time to time at its sole discretion, and if Company makes any substantial changes, Company will use commercially reasonable efforts to inform you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Platform. Any changes to these TOS will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the change(s) on the Platform. These changes will be effective immediately for new users of the Services. Company may require you to provide consent to the updated TOS in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Service constitutes your acceptance of the changes. Please regularly check the TOS.

 

THESE TOS ARE A LEGAL AGREEMENT BETWEEN YOU AND COMPANY, AND INCLUDE LIMITATIONS OF LIABILITIES AND REMEDIES, CLASS ACTION AND JURY TRIAL WAIVERS, AND OTHER PROVISIONS LIMITING YOUR RIGHTS. PLEASE READ CAREFULLY. 


 

1. Scope. These TOS represent the entire understanding regarding the Services and will control over any different or additional terms or conditions of any purchase order or other non-Company ordering document, and no terms or conditions included in any such order or other non-Company ordering document will apply to the Services or bind Company in any way. These TOS can only be modified by Company as described herein.  

 

2. Requirements, Right to Access, and Use the Services.

 

2.1 Age Requirements. You must be at least 13 years old to use our Platform or Services. IF you are under the age of 18 years old, you may only use our Platform or Services if your parent or legal guardian accepts these Terms on your behalf. If you are a parent or legal guardian of a user under the age of 18 years old, you are subject to these Terms and responsible for that User’s activity on our Platform by allowing them to use the Service.

 

2.2 Safety Requirements. All individuals must abide by all safety precautions and instructions related to a specific exercise, machine, or establishment. All individuals under 18 years of age must have permission to participate from a parent or legal guardian who will provide supervision.

 

2.3 Grant. Subject to your compliance with these this Agreement including the eligibility requirements, Company grants to you, a nontransferable, nonexclusive, worldwide limited right to access, use or benefit from the Services as made available by Company, subject to the other provisions of these TOS and Company’s documentation relating to the Services.

 

2.4 Equipment. You (or your third-party trainer, health club, or other similar entity) will be solely responsible for obtaining and maintaining appropriate equipment and ancillary software, resources, and services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system, web browser, network or telecom connectivity services (collectively, “Your Equipment”). You will ensure that Your Equipment complies with all configurations and specifications set forth in Company’s published documentation. You are also responsible for maintaining copies and backing-up any data or content you input or upload into the Services or that are otherwise important to you.

 

3.1 Usage Restrictions and Representations.

 

3.1 You will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or materials related to, or provided with, the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iv) use, access or otherwise exploit the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Company’s Services or Software; or (v) remove any proprietary notices or labels from the Services or Software. You will use the Services and Software only for your own personal use or (if applicable) internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.

 

3.2 You will not knowingly or willfully access or use (or try to access or use) the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Company’s provision of the Services to other users. You will be responsible for maintaining the security of Your Equipment and your account access passwords. You and Company agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. You will be liable for all of your acts and omissions and any acts or omissions by a third party under your credentials.

 

4. Ownership.

 

4.1 Company owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other similar input (“Feedback”) provided by or on behalf of you relating to the Services or Software will be owned by Company, and You hereby assign any rights you may have in or to the Services, Software, or such Feedback to Company, and agree to take all reasonable acts necessary to accomplish the foregoing ownership transfer. Any rights not expressly granted herein are reserved by Company.

 

4.2 Except as otherwise provided in Section 4 or 13, You own any data, information or material originated by You that You submit in the course of using the Services (“Your Data”). Company has no ownership rights in or to Your Data. You will be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Your Data. You represent and warrant that you have the right and all consents necessary to provide and input Your Data into the Services and for Company to process Your Data as contemplated herein.  

 

4.3 You grant Company a worldwide, perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from Your Data for any purpose whatsoever, commercial or otherwise, without compensation to You, subject in each case to our Privacy Policy as applicable. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in Your Data. Without limiting the foregoing, you acknowledge and agree that Company may capture video and/or audio of exercises conducted in front of or near our devices or through applications executing on other devices, and Company may save all or a portion of your such exercise videos. You may be able to remove Your Data by specifically deleting it. However, in certain instances, some of Your Data may not be completely removed and copies of Your Data may continue to exist on the Platform. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of Your Data.

 

​5. Privacy. Please review our Privacy Policy (<https://www.motivision.us/privacy-policy>) to learn about:

 

  • What information we may collect about you;

  • What we use that information for; and

  • With whom we share that information.

 

6. Free and Premium Services:  Billing and Payment.

 

6. 1 Free Services:  For so long as Company offers and provides you Free Services, you will not be obligated to pay Company for your access to or use of such Free Services.

 

6.2 Premium Services:

 

(a) Company may offer you Premium Services by making explicit that such Premium Services are subject to your payment to Company.  

 

(b) Company may accept payment by a valid credit or debit card (Visa, MasterCard, or any other issuer accepted by Company), PayPal account, or other supported payment method (each a “Payment Method”). Your Payment Method agreement (e.g., with your card issuer, PayPal or other third party) governs your use of the designated Payment Method service, and you must refer to that agreement and not this TOS to determine your rights and liabilities relating thereto. By providing Company with your credit or debit card number or other Payment Method account and associated payment information, you agree that Company is authorized to immediately invoice your account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company of any change in your billing address or the credit or debit card or Payment Method account used for payment under this TOS. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting or by e-mail delivery to you.

 

(c) All prices, fees and amounts due to Company are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties, except for the amounts we elect to collect from you and remit to the applicable taxing authority. 

 

(d) If any fee is not paid in a timely manner, or Company is unable to process your payment using the information provided by you, Company reserves the right to revoke access to and use of the Premium Services with no liability to you.  

 

(e) The fees for your Premium Services may be billed until you cancel your account for Premium Services in accordance with the payment terms associated with such Premium Services. You can cancel your account by contacting Company at <info@motivision.us>. Company may automatically charge you for Premium Services that you have subscribed to, unless you cancel. You acknowledge that the amount billed each month or year may vary for reasons that include number and type of Premium Services which you have selected, the application or expiration of any temporary discounts or promotions provided by Company, or fee changes as made by Company is its sole discretion. 

 

(f) All fees and charges are nonrefundable and there are no refunds or credits, except as expressly provided otherwise.  

 

7. Term and Termination.  

 

7.1 These TOS will continue to apply until terminated by either you or Company as set forth below.

 

7.2 If you want to terminate, you may do so by (i) notifying Company at any time at the following email address <info@motivision.us>; and/or (ii) closing your account for the Services, in accordance with Company’s policies and/or procedures in the Platform.  

 

7.3 Company may at any time terminate if (i) you have breached any provision of these TOS (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these TOS); (ii) Company is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (iii) the provision of the Services to you by Company is, in Company’s opinion, no longer commercially viable; or (iv) Company has elected to discontinue the applicable Services relating to you (or any part thereof).

 

7.4 Upon any termination, Your right to access and use the Services will terminate. Notwithstanding the foregoing, for up to 30 days following termination, Company may use commercially reasonable efforts to permit You to access the Services solely to the extent necessary for You to retrieve a file of Your Data then in Company’s possession or control. You acknowledge and agree that Company has no obligation to retain Your Data and that Company may irretrievably delete and destroy You Data after the termination of the TOS.

 

8. Representations, Indemnities.  

 

8.1 Each party represents and warrants to the other party that it has the power and authority to enter into these TOS. If you are paying for and using Premium Services, Company warrants to you that it will use commercially reasonable efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. You must notify Company of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.

 

8.2 For breach of the express warranty set forth above, your exclusive remedy will be the re-performance of the deficient Services. If Company cannot or does not re-perform such deficient Services as warranted and the deficiency is material, you will be entitled to recover a pro-rata portion of the fees paid to Company for such deficient Services for up to the three (3) months (or the period in which the Services were deficient, if shorter) and such refund will be Company’s entire liability. There are no warranties for Free Services.

 

8.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control. Company may use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.

 

8.4 You will defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Company by a third party alleging that Your Data, or your use of the Services in violation of the TOS, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that Company (a) promptly gives written notice of the Claim to you; (b) gives you sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it unconditionally releases Company of all liability); and (c) provides to you, at your cost, all reasonable assistance. 

 

9. Representations, Disclaimer of Warranties.  

 

9.1 COMPANY PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU THEREFORE USE THE SERVICES AT YOUR OWN RISK. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, COMPANY AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES (INCLUDING SOFTWARE), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. COMPANY AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. 

 

9.2 YOU ACKNOWLEDGES THAT NEITHER COMPANY NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY COMPANY, THE SERVICES (INCLUDING SOFTWARE) ARE PROVIDED TO YOU ON AN “AS IS” BASIS.  

 

10. Health and Safety Warnings.

 

10.1 IF YOU THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911 (IN THE UNITED STATES OR OTHER APPLICABLE EMERGENCY NUMBER IN OTHER COUNTRIES), IMMEDIATELY.  

 

10.2 THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE, NOR SHOULD IT BE CONSIDERED A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICE MAY OFFER HEALTH, FITNESS, AND/OR NUTRITIONAL INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON OUR PLATFORM. 

 

10.3 YOU SHOULD CONSULT A PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING OR HAVE EXPERIENCED CHEST PAIN IN THE PAST MONTH WHEN NOT ENGAGED IN PHYSICAL ACTIVITY, SMOKE, HAVE HIGH CHOLESTEROL, ARE OBESE, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY. DO NOT START USE OR PLATFORM IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING YOU SHOULD STOP IMMEDIATELY. ANY INFORMATION PROVIDED BY US ARE SUGGESTIONS ONLY. YOU ARE RESPONSIBLE FOR DETERMINING WHETHER YOU CAN OR SHOULD COMPLY WITH SUCH SUGGESTIONS.

 

10.4 By using our Platform or Service, you represent and warrant that:

 

(a) no medical professional has ever informed you that you have a heart condition or that you should only do physical activities recommended by a medical professional;

(b) you have never felt chest pain when engaging in physical activity;

(c) you have not experienced chest pain when not engaged in physical activity at any time within the past month;

(d) you have never lost your balance because of dizziness and you have never lost consciousness;

(e) you do not have a bone or joint problem that could be made worse by a change in your physical activity;

(f) your medical professional is not currently prescribing drugs for your blood pressure or heart condition;

(g) 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; 

(h) you do not know of any other reason you should not exercise; and 

(i) If applicable, you are not pregnant, breastfeeding or lactating, unless a health professional has been specifically consulted and approved your use of our Service.

 

10.5 Company reserves the right to refuse or cancel this Agreement and any account you may have with us if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.

 

11. Limitation of Liability. COMPANY WILL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF CAPITAL, OPPORTUNITIES, EARNINGS, BUSINESS, DATA OR YOUR DECISIONS, ACTS OR OMISSIONS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, OPPORTUNITIES, SAVINGS OR INVESTMENTS; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS OR LIABILITIES TO YOU, EXCEED THE FEES PAID BY YOU TO COMPANY IN THE PRECEDING 6 MONTHS OR FIFTY US DOLLARS ($50 USD), WHICHEVER IS GREATER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.

 

12. Confidential Information. You understand that Company has disclosed or may disclose information relating to Company’s business (hereinafter referred to as “Confidential Information”). Such information includes, without limitation, information related to your login identifiers and credentials and information related to our Services and Platform. You agree: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in this Agreement) or divulge to any third person any such Confidential Information. Company agrees that the foregoing will not apply with respect to Confidential Information after that you can document by clear and convincing evidence (a) is or becomes generally available to the public except by actions taken by you; (b) was in your possession or known by you prior to receipt from Company; (c) was rightfully disclosed to you by a third party not subject to confidentiality obligations; (d) was independently developed without use of any Confidential Information; or (e) is required by law or court order to be disclosed, in which case the Confidential Information may only be disclosed to the extent required to comply with such law or court order. 

 

13. Statistical Information. Notwithstanding anything else in these TOS or otherwise, Company may monitor your use of the Services and use or exploit Your Data in an aggregate or anonymous manner, to compile statistical and performance information related to the efficacy, provision and operation of the Services or to develop and commercialize new products or services or determine insights into the efficiency or development of user fitness based on use of our Platform. Company may make such information publicly available or provide to its affiliates, representatives, investors or potential investors, provided that such information does not incorporate Your Data in way that is directly traceable to you and/or identify you on a stand-alone basis. Company retains all intellectual property rights in such aggregated and/or anonymous information.

 

14. Notices. Company may give notice applicable to Company’s general customer and user base by means of a general notice on our website, through the Services portal (including on our devices), or via notices specific to you by written or electronic mail to any of your address on record in Company’s account information. If you have a dispute with Company, wish to provide a notice under these TOS, or becomes subject to insolvency or other similar legal proceedings, you will promptly send written notice to Company at <info@motivision.us>.

 

15. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, terrorism, hostility, or sabotage or other criminal attack; act of God; electrical, internet, or telecommunication interruption or outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license) or changes in law hindering or preventing Company’s performance; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may terminate upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services provided.

 

16. Apple App Store. This Section applies if and only if you accessed or downloaded an application (the “App”) provided by Company from the Apple, Inc. (“Apple”) App Store:

 

16.1 You acknowledge and agree that this Agreement is between you and Company and not with Apple or any other provider of the Apple App Store. Company and its third-party providers are solely responsible for the App and the content thereof.

16.2 The license set forth in Section 16.1 is limited to use on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.

16.3 The Apple App Store provider has no obligation to provide any maintenance and support service with respect to the App. Company is solely responsible for any warranties, whether express or implied by law, to the extent not effectively disclaimed. The Apple App Store provider will have no warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.

16.4 Company and/or its third-party providers, not Apple, is responsible for addressing any claims you or any third party may have relating to the App or your possession and/or 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; (iii) claims arising under consumer protection or similar legislation; and/or (iv) intellectual property infringement claims.

16.5 You represent and warrant that you are not (i) 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) listed on any U.S. Government list of prohibited or restricted parties.

16.6 You must comply with applicable third-party terms of agreement when using the App.

16.7 Apple and its subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of these this Agreement, Apple from will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

 

17. Android Devices. The following Section applies only with respect to any mobile application that Company provides to you designed for use on an Android-powered mobile device (an “App”):

 

17.1 You acknowledge that these Terms of Service applies to you and Company only, and not Google, Inc. (“Google”);

17.2 You agree that your use of our App will comply with Google’s then-current Android Market Terms of Service;

17.3 You acknowledge that Google is only a provider of the Android Market where you obtained the App, and that Company, and not Google, are solely responsible for our App and the services and content available thereon and Google has no obligation or liability to you with respect to our App or these Terms; and

17.4 You acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to our App.

 

18. General provisions.

 

18.1 Any action, Claim, or dispute related to these TOS or the Services will be governed by New York law, excluding its conflicts of law provisions, and controlling U.S. federal law. You also agree to exclusive jurisdiction and venue for any action, Claim or dispute in federal or state courts in New York, New York. The Uniform Computer Information Transactions Act will not apply to the TOS. In any action or proceeding to enforce rights under the TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in the TOS will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the TOS may be brought by either party more than two years after the cause of action has accrued. In addition, YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO A TRIAL IN FRONT OF A JURY AND AGREE TO A BENCH TRIAL SOLELY ON AN INDIVIDUAL BASIS – NOT ON A CLASS OR CONSOLIDATED BASIS. 

 

18.2 These TOS represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. If any provision of the TOS is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

 

18.3 No joint venture, partnership, employment, or agency relationship exists between Company and you as a result of the TOS or use of the Services. You may not assign the TOS without the prior written approval of Company, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of your assets. Company may freely assign these TOS at its discretion. Any purported assignment in violation of this Section will be void.

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