Terms & Conditions
1 GENERAL INFORMATION
1.1 ETERLY SERVICES
These Terms & Conditions (these “Terms”) contain the terms and conditions on which we supply content, products or services listed on www.eterly.com (the “App”), through our applications (the “Apps”) or via partner Apps or other delivery methods to you (the App and such content, products, services and the Apps are collectively referred to herein as the “Services”). Please read these terms and conditions, carefully before ordering any Services from the App or third party App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.). The terms “Eterly,” “us” or “we” refers to Eterly. The term “Device” refers to the device which is used to access the Services including but not limited to computers, smart phones and tablets. The term “you” refers to the user of the Services. When you order (“Order”) any Services from the App, or otherwise use or access the App or other Services, you agree to be bound by these Terms and all applicable laws, rules and regulations. You may also be asked to click “I accept” at the appropriate place prior to your purchase of or other access to the Services. At such time, if you do not click “I accept”, you will not be able to complete such purchase or gain such access. By using the App or other Services, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the App and other Services.
Our contact email address is firstname.lastname@example.org. All correspondence to Eterly including any queries you may have regarding your use of the App or other Services or these Terms should be sent to our contact email address.
1.2 BASIS OF SALE
(a) These Terms and the Order set out the whole agreement between you and us for the supply of the Services. In order to participate in certain Services, you may be notified by us that you are required to agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to such Services in which you choose to use, those additional terms are hereby incorporated into these Terms.
(b) Please check that the details in these Terms and on the Order are complete and accurate before you use or commit yourself to purchase the Services. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by an officer of Eterly.
1.3 CHANGES TO TERMS
We have the right to revise and amend these Terms from time to time without notice to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities. Your continued use of the Services after such changes are made conclusively demonstrates your acceptance of such changes. If your purchase of the Services is on-going, we will give you prior notice of any changes to these Terms and you may elect to cancel the Services without penalty before the changed Terms affect you.
2 MEMBERSHIPS AND SUBSCRIPTIONS
2.1 BECOMING A MEMBER
You may sign up as an Eterly registered user of the App free of charge (a “Member”). To become a Member you need to go to the relevant section of the App, then submit your email address to us, and create a username and password to be used in conjunction with that email address. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your Device.
By placing an Order through the App or other Services, you warrant that:
(a) You are legally capable of entering into binding contracts;
(b) You are at least 13 years old and if younger than 18 years old, that your placement of an Order is done so with the consent of your parents, guardians, authorized school officials, or counsellors;
(c) All registration information you submit is truthful and accurate;
(d) You will maintain the accuracy of such information; and
(e) Your use of the App or other Services does not violate any applicable law or regulation.
2.2 ONCE A MEMBER
You are responsible for maintaining the confidentiality of your account, password and other User Information and for restricting access to your Device to further help protect such information. You are responsible for updating your User Information.
2.3 USE OF ETERLY BY MINORS
Children between the ages of 13 and 18 or the age of majority in their jurisdiction of residence (“Minors”) may use the Services. Eterly recommends, but does not require, that use by such Minors be done with the guidance and support of their parents, guardians, authorized school officials, or other qualified adults. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. Children under the age of 13 are not permitted to use the Services. If you are under the age of 13, please do not attempt to access or use the Services.
As an Eterly App Member you will receive access to certain sections, features and functions of the App that are not available to non-members.
By agreeing to become a Member you opt in to receiving occasional special offer, marketing, and Journey based communication emails. You can easily unsubscribe from these emails by following the opt-out instruction in these emails.
Eterly memberships and subscriptions are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever.
Eterly account holders may access the Services in two ways:
(i) StayFit Coaching: a free-of-charge service.
(ii) Paid Subscription: a subscription fee-based service which gives access to all content including and beyond StayFit coaching
Through the Services, we provide nutritional and wellness information services including:
Customized wellness information based on information about your diet that you provide to us through the Services;
Goal-oriented feedback from your Coach as you progress towards your fitness or nutritional goals.
All subscription services provide access through the App and the Website. You can become a subscriber by purchasing a subscription to the Services from the App or within the Website.
Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, the sale is final, and we will not provide a refund. Your purchase will be subject to Apple’s applicable payment policy, which also may not provide for refunds.
(b) Eterly offers monthly, quarterly, annual subscription options. A month constitutes 30 calendar days, a year constitutes 365 calendar.
(c) Our “Monthly” subscription is paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that Eterly is authorized to charge the same credit card or other payment method (the “Payment Method”) as was used for the initial subscription fee in the amount of the then current monthly subscription fee. The monthly renewal subscription fees will continue to be billed to the Payment Method you provided, automatically until cancelled. You must cancel your subscription before it renews each month in order to avoid billing of the next month’s subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month subscription period.
(d) Our “Yearly” subscriptions are paid for by an upfront one-off payment with automatic annual payments. You acknowledge and agree that Eterly is authorized to charge the Payment Method used for the initial annual subscription fee at the rate secured at the time of purchase. This includes discounted rates secured with a promotional offer. You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial subscription period.
(f) You may discontinue auto-renewals of your subscription at any time by logging into your account and updating your account settings to non-renewal or by emailing email@example.com
(g) You agree to promptly notify Eterly of any changes to the Payment Method you provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.
(h) Our obligation to provide a Service only comes into being when we take receipt of your Order, and we confirm your purchase to you by email. We shall confirm your Order and assign you with an email to confirm your access to the subscription purchased. Please quote the Order number in all subsequent correspondence with us. Prices in US Dollars and Euros include local taxes. All prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any Services purchased through Eterly for commercial purposes.
2.6 DEVICE REQUIREMENTS
To enjoy Eterly via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the App and the Google, Apple and Amazon App marketplaces.
“Gift Subscriptions” are pre-paid memberships to the Service. A person who purchases the gift is referred to in these terms as the “Giftor”. A person who receives and redeems a Gift Subscription to the Service is referred to in these terms as the “Recipient”. Gift subscriptions are paid for as a one-off upfront payment. Once bought, the Giftor will receive an Order confirmation and receipt. The Eterly gift subscription will be sent to the Recipient on the Giftor’s specified date. Gifting codes can only be used once in the country for which they were purchased and cannot be redeemed for cash, resold or combined with any other offers, including free trial. Please note that gifting codes cannot be redeemed if the Recipient has already purchased a subscription through the Apple iTunes Store or our iPhone application. We will automatically bill the Payment Method you provided for any purchased Gift Subscriptions at the time of purchase, not delivery. There are no refunds or other credits for Gift Subscriptions, which are not redeemed. Eterly will notify the Recipient prior to the end of the Gift Subscription that the gift period is about to expire. Eterly is not responsible if a Gift Subscription is lost, stolen or used without permission.
2.8 CORPORATE AND OTHER CONSUMER COMMUNITIES
While Eterly is a consumer products company, there is increasing interest by large consumer communities (corporations, healthcare partners, hospitals, etc.) (“Communities”) to introduce the Services to their employees and members. In some cases, these Communities may supplement these Terms with their own terms and conditions. In such event, these Community terms and conditions shall also apply to your use of the Services. In the event of any conflict with such additional terms and these Terms, these Terms shall prevail.
2.9 CHANGING FEES AND CHARGES
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services. If you do not agree to the change, you may cancel your membership or subscription in your account settings or by emailing firstname.lastname@example.org.
3 CANCELLATION OF SERVICES
3.1 CANCELLATION BY YOU
You may cancel a Monthly subscription at any time. Cancellation is effective at the end of the applicable monthly period. Please make any such cancellation through your account settings.
You may cancel our Yearly subscription plans within the 7 day money back guarantee offer, which entitles you to cancel your subscription and have the full cost refunded to you up to 7 calendar days from your first date of payment. No such refunds will apply to subsequent automatic renewals of the Yearly and Two Year subscriptions or subscriptions purchased through the Apple iTunes Store or our iPhone application.
Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, you may cancel automatic renewal of paid In App Subscriptions by selecting Manage App Subscriptions in your iTunes Account settings and selecting the subscription you want to modify.
3.2 CANCELLATION BY US
We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of our audio or video content from the App or the Apps.
3.3 PROMOTION CODES
Any promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Services, except where expressly stated otherwise. Previous users or trial users of the Services do not qualify as a new user. No promotion code or discount will apply to corporate or other Community subscriptions.
4 PROHIBITED USE OF THE SERVICES
You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Services or the Services themselves. You agree not to interfere with the servers or networks underlying or connected to the App or the other Services or to violate any of the procedures, policies or regulations of networks connected to the App or the other Services. You may not access the App or the other Services in an unauthorized manner.
You agree not to impersonate any other person while using the Services, conduct yourself in an offensive manner while using the Services, or use the Services for any illegal, immoral or harmful purpose.
By breaching the provisions of this section 4, you may commit a criminal offence under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Services will cease immediately.
5 MATERIALS OFFERED THROUGH THE SERVICES
All materials (including software and content whether downloaded or not) contained on the App or the other Services are owned by Eterly (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
You acknowledge and agree that certain materials on the App and in the other Services are the property of third party licensors and, without prejudice to any and all other rights and remedies available, each such licensor has the right to directly enforce relevant provisions within these Terms against you.
Audio or video content from Eterly not explicitly indicated as downloadable may not be downloaded or copied from the App or the other Services or any Device.
The App and the other Services are not intended for commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. You must not use any part of the materials used on the App or the other Services for commercial purposes without obtaining a written license to do so from us. Material from the App or the other Services may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the App and the other Services and may subject you to legal liability. You agree not to use the App or the other Services for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the App and the other Services. Appropriate legal action may be taken for any illegal or unauthorized use of the App or the other Services.
A limited amount of content will be marked and authorized for the user to share in their personal social channels (Facebook, Twitter, etc.). With respect to content made available by Eterly through the Services that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), Eterly grants you a limited right to download, reproduce and distribute such content over the internet as part of your User Commentary. You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through your computer systems and over the Internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Services, such as display and distribution of Distribution Content only within specified usage dates. You agree not to publish the Distribution Content with other content that is known by you to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain clear GIFs or cookies that enable us to collect information with respect to the distribution and consumption of such content.
You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Eterly will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
5.2 TRADE MARKS
Eterly, the Eterly logo and all other Eterly product or service marks are trademarks of Eterly. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on the App or the other Services are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material.
Your misuse of the trademarks displayed on the Services is strictly prohibited. Eterly will enforce its trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
6 AVAILABILITY OF SERVICES
Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in the Services, please report it to us at email@example.com and we will correct the fault as soon as we reasonably can. If the need arises, we may suspend access to the Services while we address the fault. We will not be liable to you if the Services are unavailable for any period of time.
Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can. In the event that the Services are unavailable, our usual Order and cancellation deadlines apply; please notify us of changes to your Order via our email firstname.lastname@example.org.
7 USER MATERIAL
The Services may let you submit material to us: for example, you can upload a photo to your profile, post subjects and comments in the community and comment on various matters in various parts of the Services. You may be able to upload video, images or sounds. In these Terms, we use the term “User Material” to refer to any material of any kind that you submit to us, including text, files, images, photos, video, sounds and musical or literary works. User Material does not include the account information you provide when you register as a Member or when you subsequently change that information.
This section 7 sets out the rights and obligations that each of us have in connection with User Material. If you review or submit User Material you are agreeing to do so in accordance with these Terms. If you do not want to review or submit User Material in accordance with these Terms, then you should not do so.
We do not systematically review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy. We disclaim all liability in connection with User Material to the extent permitted by law.
We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Services, particularly where User Material breaches this section 7, and we may do this with or without giving you any prior notice.
We may link User Material or parts of User Material to other material, including material submitted by other users or created by Eterly or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories and to use those on the App and other Services or to promote, market or advertise Eterly.
Each time you submit User Material to us, you represent and warrant to us as follows:
You own your User Material or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trade mark), privacy or publicity rights, rights of confidentiality or rights under contract.
Your User Material is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give Eterly to civil liability, violate any law, or is otherwise deemed inappropriate.
Your User Material does not advertise any product or service or solicit any business.
Your User Material does not identify any individual (including by way of name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.
You will not collect usernames and/or email addresses of users for the purpose of sending unsolicited email.
You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
You will not engage in any automated use of the system, such as using scripts to alter our content.
You will not access, tamper with, or use non-public areas of the Services, Eterly’s computer systems, or the technical delivery systems of Eterly’s providers.
You will not attempt to probe, scan, or test the vulnerability of the App or any other Eterly system or network or breach any security or authentication measures.
We are entitled to identify you to third parties who claim that their rights have been infringed by User Material you have submitted.
Any inquiries, feedback, suggestions, ideas, or other information or User Material that you provide to us (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting, uploading, posting, e-mailing, or otherwise submitting Submissions to the Services, you grant, and you represent and warrant that you have the right to grant, to Eterly an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the Submissions, or any portion thereof and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submissions, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You also acknowledge that your Submissions will not be returned to you and that Eterly has no obligation to acknowledge receipt of or respond to any Submissions. If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify Eterly and its affiliates for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.
8 LINKS TO APPS/SERVICES
We may provide links to other Apps or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those Apps or services. We are not responsible in any way for:(a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other Apps or services. We are also not responsible for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on such Apps or services.
You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any App that is not owned by you. The App and the other Services must not be framed on any other App, nor may you create a link to any part of the App or the other Services unless you have written permission to do so from Eterly. We reserve the right to withdraw linking permission with written notice. The App from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on the App or the other Services other than that set out above, please address your request to info@Eterly.com
9 SERVICES DISCLAIMER
The information contained on the Services is for general information purposes only. While we endeavour to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Services or the information contained on the Services for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
10 MEDICAL DISCLAIMER
Eterly is a provider of online and mobile subscriptions for health and behavioural coaching content in the health & wellness space. We are not a medical device, nor do we provide medical advice. While there is third party evidence that coaching can assist in the prevention and recovery process for a wide array of illnesses, Eterly makes no claims or guarantees that this will be the case by using the Services. Any user experiencing serious medical issues or needing medical advice should consult their doctor.
Any health information and links on the Services, whether provided by Eterly or by contract from outside providers, is provided simply for your convenience.
Any advice or other materials on the Services are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your personal circumstances. The advice and other materials are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any actions taken due to your having read or been told about such advice or other materials. In particular, to the fullest extent permitted by law, we give no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published on the Services.
11 END USER LICENSE AGREEMENT
Subject to the terms of this License Agreement (as set out in this section 11), and these other Terms, and your payment of applicable subscription fees, Eterly grants you a limited, non-exclusive, revocable license to stream, download and make personal non-commercial use of the Services.
The Services contain or embody copyright material, proprietary material or other intellectual property of Eterly or its licensors. All right, title and ownership in the Services remains with Eterly or its licensors, as applicable. The rights to download and use the Services are licensed to you and are not being sold to you, and you have no rights in it other than to use it in accordance with this License Agreement and our other Terms.
You agree that you will not assist or permit any third party to:
Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble and Services in any way, or create derivative works of the Services;
Use the Services or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever;
Rent, lease, loan, make available to the public, sell or distribute the Services in whole or in part;
Tamper with the Services or circumvent any technology used by Eterly or its licensors to protect any content accessible through the Services;
Circumvent any territorial restrictions applied to the Services; or
Use the Services in a way that violates this License Agreement or the other Terms.
You may not make the Services available to the public.
The Services made available (in whole or in part) are owned by Eterly or its licensors and your use of them must be in accordance with these Terms.
12 Dispute Resolution
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 Eterly 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”). The exclusive jurisdiction and venue of any IP Protection Action 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. You acknowledge and agree that you and Eterly 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 Eterly 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 form Demand for Arbitration and a separate form 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 Eterly 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 Eterly 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. Eterly will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails 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, Eterly 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 the provisions of the “Changes to Terms or Services” section above, if Eterly changes 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 Eterly’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Eterly 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).
13 GENERAL TERMS AND CONDITIONS
13.2 ASSIGNMENT BY US
Eterly may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.
13.3 INDEMNITY BY YOU
You agree to defend, indemnify and hold Eterly and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Services, your placement or transmission of any message, content, information, software, or other submissions through the Services, or your breach or violation of the law or of these Terms. Eterly reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Eterly’s defense of such claim.
13.4 WARRANTIES AND LIMITATIONS
(a) We warrant to you that any Service purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.
(b) We warrant that we will use reasonable skill and care in making the Services available to you during your subscription.
(c) Nothing in this sections 13.4 or otherwise in these Terms shall exclude or in any way limit Eterly’s liability for: fraud; or death or personal injury caused by its negligence; or liability to the extent the same may not be excluded or limited as a matter of law.
(d) The Services and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to it, including as to the accuracy, completeness or currency of the Services or their content. We assume no liability or responsibility for any errors or omissions in the content of the Services, or any failures, delays, or interruptions in the provision of the Service. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Services to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Services. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Services. We make no warranties or representations that your use of content and information posted on the Services will not infringe rights of third parties.
(e) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.
13.5 APPLICABLE LAW
Your use of the Services is governed by these Terms and these Terms shall be construed and enforced in accordance with the laws of the State of California, United States. Disputes arising from or in connection with your use of the Services we provide are subject to the non-exclusive jurisdiction of the US and state courts located in the State of California.
We make no representations that the Services are appropriate or available for use outside of the United States or the UK. If you access the Services from any other jurisdiction you do so out of your own volition and you are responsible for compliance with the applicable laws.
13.6 NO WAIVER
If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
13.7 FORCE MAJEURE
We will not be liable to you for any lack of performance, or the unavailability or failure, of the Services, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
In these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
13.9 WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using the Services, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Services. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to Eterly at firstname.lastname@example.org. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.9 above. Notice will be deemed received and properly served immediately when posted on the Services or when an e-mail is sent. In proving the service of any notice, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the provision will, to that extent only, be severed from the remaining provisions, which will continue to be valid to the fullest extent permitted by law.
13.12 ENTIRE AGREEMENT
These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.
13.13 THIRD PARTY RIGHTS
A person who is not party to these Terms will not, subject to section 12 (DMCA), have any rights under or in connection with these Terms.
13.14 OUR LIABILITY
We will use reasonable endeavours to remedy faults in the Services. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Service in question. In addition, we will not be liable for:
Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).
Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the App or any other Service, or from transmissions via emails or attachments received from us.
Any use of Apps linked to the App or the other Services but operated by third parties.
These Terms are effective and were last updated on March 1st, 2016.