TERMS OF SERVICE
By accessing and using any website, mobile application, scheduling Services, and/or other Services (collectively, “Services”) which are or may be provided by JORDAN GENTILE FITNESS, LLC (DBA Built To Bloom) ("us", “we", "our"), user (“you,” “your,” “user”) expressly agrees to the terms and conditions of these Terms of Service (these “Terms” or “Agreement”), which are a material prerequisite to our provision of Services to you. We may modify these Terms of Service at any time without notice to you.
Any material or conduct that in our judgment violates these Terms in any manner may result in suspension or termination of the Services, in our sole discretion.
Services provided by JORDAN GENTILE FITNESS, LLC may include: physical training, fitness consulting, nutritional information, and/or similar fitness or nutritional coaching, and/or social interaction opportunities and other incidental services relating to the same. Services may be provided online via our website or third-party websites, in person, via mobile application, any other format, or any combination of the foregoing. We reserve the right to modify or discontinue any or all of the Services at any time.
Services only be used for lawful purposes and only used or accessed by persons at least 18 years of age. DO NOT USE OR ACCESS OUR SERVICES OR PROVIDE US WITH ANY INFORMATION ABOUT YOURSELF IF YOU ARE UNDER 18 YEARS OF AGE.
I. YOUR PERSONAL INFORMATION
In order to use the Services, you may be required to establish an account or login credentials, or otherwise provide certain personal information (or personal information of your company representative), which may include full name, title, age, date of birth, a username, password, company name if applicable, address, phone number, email address, computer IP address. Payments will require disclosing credit card numbers or similar information, which will only be used for legitimate business purposes in connection with providing the Services. The use of your personal information shall be further governed by our separate Privacy Policy , incorporated into these Terms by reference.
II. PAYMENT FOR SERVICES
You will need to provide credit/debit card information to purchase Services. Monthly or subscription Services will automatically renew, in advance, on a monthly basis from date you register, unless/until you cancel. If your credit/debit card is declined, your access to the Services may be suspended until a valid form of payment is provided.
III. CANCELATION; TERMINATION; SUSPENSION; REFUNDS
You can cancel and close out your account at any time by contacting jordan@builttobloomfitness.com, or in the app for app Services. You may use up any remaining sessions on your account for up to 6 months, with no additional payments, but no refunds will be issued for unused sessions or unused Services. There are no refunds except within 3 days of initial registration, provided no Services have been utilized, and further provided that since the training app is third-party serviced, refunds are additionally subject to the app servicer’s terms of service. Be sure to add jordan@builttobloomfitness.com to your email “safe list” and check your junk mail folder.
We may suspend or terminate your membership, subscription, and/or access to the Services for failure of payment or violation of any of these Terms of Services, in our sole discretion. We may refuse service for any legal reason, or no reason.
IV. ONLINE AND SOCIAL INTERACTIONS
In our sole discretion, we may from time to time provide online or in person social opportunities for you and other members/participants of the Services. In addition to any terms of service of the platform provider (for example, and without limitation, Facebook or other platform provider), the following terms shall govern your participation in social opportunities, whether online, in person, or otherwise:
a. Any posts, comments, uploads, or other content you provide (collectively, “Content”) is voluntary, and you do so with the knowledge, understanding, and agreement that Content submitted online, or in any “metaverse” or universe, may be permanently and forever available for viewing by others, even if a social forum is designated as private, and that we have no control over, and are not responsible for, any person’s copying, pasting, screenshotting, or otherwise distributing or re-distributing your Content.
b. You are solely responsible for the Content you provide. You shall not provide any Content that constitutes fraud, harassment, threats, bullying, hate speech, pornography or any type of sexual content, or that depicts abuse or physical violence toward people, animals, or property, or inducing or inciting any of the foregoing, or illegal Content of any kind. We may, in our sole discretion, determine that Content is inappropriate regardless of whether it is legal.
c. You acknowledge and agree that we are not responsible for the Content provided by others, and that while we will make reasonable efforts to moderate Content, potentially including editing or deleting inappropriate Content, there may be lag time between when a person submits such Content and when we can address it, and further, all determinations of whether Content is inappropriate, offensive, or violates these standards, or not, is strictly in our discretion and/or that of the platform service provider. We do not endorse or warrant any Content submitted to the Services by any user, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with user provided Content.
d. To facilitate our provision of the Services, you grant to us a perpetual, non-exclusive, world-wide, royalty-free, sublicensable, and transferable license in and to all patent, trademark, trade secret, copyright and other intellectual property which is or may be contained in the Content you provide, for our use, display, distribution, reproduction, preparation of derivative works, and performance, for our business purposes, including without limitation for promoting and redistributing part or all of the Services in any media formats and through any media channels in all universes, and for backup, update, maintenance, portfolio, and archival purposes. You are strictly and solely responsible for not violating the intellectual property rights of others in the Content you provide, and, if any, the Content of others that you download, save, copy, share, or otherwise use or distribute, and you will fully indemnify, defend, and hold harmless the Indemnified Parties defined in Section IX, from any and all claims, lawsuits, damages, and losses of any kind whatsoever, including without limitation attorney’s fees, for your violation of this provision.
e. In our sole discretion, we or others may provide links to third-party websites that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, privacy policies, terms of service, or practices of any third parties. In addition, we have no responsibility to moderate or edit the content of any third-party site, nor any liability for same. By using our Services, you expressly release us from any and all liability arising from your access or use of any third-party website, platform, or content. You are responsible for reading the terms of service and privacy policy of each website or platform you visit.
f. You shall not alter, modify, disable, nor seek to reverse engineer or otherwise “hack” or interfere with any portion of our website, app, social media, accounts, or any aspect of the Services or any of our third-party providers’ services.
g. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses any part of the Services in a manner that sends more request messages than a human can reasonably produce in the same period by using a conventional on-line web browser.
h. You agree not to collect or attempt to collect any personal identifying information of other persons using our Services, except that which they voluntarily provide.
i. You agree not to solicit for commercial purposes any users of our Services with respect to their Content, your Content, or for other purposes.
V. LEGAL COMPLIANCE
It is solely your responsibility to comply with all laws, rules, and regulations applicable to your use of the Services. It is your responsibility to seek the advice of your own legal counsel
Without limiting the foregoing:
YOU SHALL NOT USE THE SERVICES IN FURTHERANCE OF, COMMISSION OF, OR OTHERWISE IN CONNECTION WITH, FRAUDULENT OR ILLEGAL PURPOSES, INCLUDING WITHOUT LIMITATION, ONLINE OR IN-PERSON HARASSMENT, THREATS, BULLYING, HATE SPEECH, PORNOGRAPHY OR ANY TYPE OF SEXUAL CONTENT, ABUSE OR PHYSICAL VIOLENCE TOWARD PEOPLE, ANIMALS, OR PROPERTY, OR INDUCING ANY OF THE FOREGOING; OR IN THE COMMISSION, AIDING, OR INDUCING OF ANY OTHER CRIME, INCLUDING WITHOUT LIMITATION THE SALE OR PURCHASE OF ILLEGAL, RECALLED, STOLEN, COUNTERFEIT OR OTHERWISE INFRINGING GOODS OR SERVICES.
You shall not abuse, take inappropriate advantage of, sabotage, or otherwise undermine any of our Services, systems, or processes.
You shall not submit to our website, the scheduler, or any other media platform we may provide, or to any social media page we may have or establish, any third-party links without our prior consent, or any content (text, photos, or otherwise) that infringes on the intellectual property of others; or contains illegal, harassing, profane, or otherwise objectionable content, in our sole and absolute discretion. We may moderate, edit, or remove any such content, in our sole and absolute discretion.
You are responsible for arranging legal, safe, and secure locations for utilizing the Services.
VI. INTELLECTUAL PROPERTY
JORDAN GENTILE FITNESS, LLC, owns all right, title and interest in and to the Services, or is otherwise duly licensed and authorized to provide the Services, including without limitation all underlying and included branding and intellectual property associated with the Services, including without limitation all intellectual property associated with any content or ideas you provide to us on any social or online forums we elect to provide, or content you provide to us in any other format or medium, all along with the sole right of JORDAN GENTILE FITNESS, LLC, to create derivative works from any or all of the intellectual property, and all rights and goodwill associated therewith. Intellectual property includes, without limitation trademarks, patents, copyrights, trade dress, trade secrets, business models, methods, formulas, drawings, designs, computer codes and other digital, electronic, or online elements/platforms/media of every kind, and every other type or form of intellectual property of any type or nature, whether registered or not, whether registrable or not, and whether reduced to practice or not.
You shall not, directly or indirectly, nor through another person or company:
a. register, attempt to register, or use for the benefit of yourself or any third party any intellectual property associated with our Services,
b. use any of our intellectual property as part of any corporate or trade name, as part of prominent signage displaying your business name, or in connection with unauthorized goods or Services,
c. use our intellectual property in combination with any other trademarks or other intellectual property,
d. debrand, rebrand, or private label any of our intellectual property,
e. deconstruct, decompile, disassemble, reverse engineer, or otherwise tamper with any of the Services or associated intellectual property,
f. copy, or duplicate the Services or any associated intellectual property,
g. separate any Service or intellectual property into component parts for distribution or transfer to a third party,
h. remove any Service identification, or notices of any proprietary restrictions, or intellectual property designations;
i. hold yourself out as having any ownership interest in the Services or our intellectual property,
j. engage in any conduct that would constitute infringement of or otherwise affect either our rights and interest in our intellectual property or the goodwill associated with it,
k. attempt to license our intellectual property to a third party,
l. dispute the validity, ownership, or enforceability of any of our intellectual property; oppose the registration of any pending registration application of our intellectual property; or petition to cancel the registration of any of our registered intellectual property,
m. invalidate, dilute, or otherwise adversely affect the value of the goodwill associated with our intellectual property, or
n. engage in any conduct that would constitute infringement of, or otherwise harm, the intellectual property rights of us or any third parties.
VII. NON-COMPETITION; NON-SOLICITATION; NON-DISPARAGEMENT
You acknowledge, understand, and agree that we have a legitimate business interest in maintaining our customers and goodwill, and you acknowledge, understand, and agree that you have the skills and experience necessary to earn a living in compliance with these covenants. As a material inducement to our willingness to provide the Services, you agree as follows:
a. Non-Competition. YOU REPRESENT, WARRANT, ACKNOWLEDGE, AND AGREE THAT YOUR USE OF THE SERVICES IS NOT FOR PURPOSES OF UNFAIR OR ILLEGAL COMPETITION, NOR ESPIONAGE OR SABOTAGE. To the fullest extent permitted by law, during the term of this Agreement and for two (2) years after the date of termination of this Agreement or as long as permitted by law (collectively, the “Restrictive Term”), and throughout the United States of America (“Restricted Territory”), neither you, nor (if a legal entity) your owners, officers, members, shareholders, or directors shall own, manage, control, participate in, or render contractor or consulting Services for yourself or for any other person, firm, sole proprietorship, corporation, partnership, joint venture, organization or other entity (whether for profit or not for profit) (each an “Entity”) which engages in Competitive Activities. “Competitive Activities” mean, whether directly or indirectly, providing the same or similar Services or any other lines of business in which we or any of our affiliates are engaged in during the Restrictive Term. The term “participate in” shall include, without limitation, having any direct or indirect interest in, or in the financial condition of, any Entity engaged in Competitive Activities, whether as an owner, investor, shareholder, member, director, officer, manager, partner, joint venturer, employee with stock options, consultant, contractor, creditor or otherwise (each an “Interested Party”), or rendering any direct or indirect Service or assistance to any Entity engaged in Competitive Activities. For the avoidance of doubt, it is not the parties’ intention for the scope of any of these Restrictive Covenants to exceed the bounds of the law, and the parties’ acknowledge the discretion of the courts to modify the scope of the Restrictive Covenants to conform to the law
b. Non-Solicitation. During the Restricted Term, neither you, nor any other person at the direction or suggestion by you, nor (if a legal entity) your affiliates, nor either of their employees, agents, owners, officers, members, shareholders, or directors shall directly, or indirectly through another Entity: (i) induce or attempt to induce any employee, agent, owner, officer, member, shareholder, director, client, customer, vendor or supplier, or other business relation of ours (any, a “Business Relation”) to leave the employ of, or terminate its contract, affiliation, or other business relationship with us, (ii) hire or recruit away any Business Relation of ours, within two (2) years after such person ceased to be affiliated with us (including if such 2 year period extends beyond the Restricted Term), (iii) induce or attempt to induce any Business Relation of us to cease doing business with us or our other Business Relations, or (iv) otherwise interfere with or undermine any of the foregoing relationships.
c. Non-Disparagement . For as long as the law allows, It is expected, understood, acknowledged, and agreed that you shall maintain professional decorum, even in the event of disagreement or dispute. As such, on behalf of yourself, your friends, acquaintances, and family members, and (if a company) your employees, agents, owners, officers, members, shareholders, and directors, agree they each will not, nor allow their employees, agents, owners, officers, members, shareholders, or directors to disparage or encourage others to disparage any Indemnified Party defined in Section IX below, or any past or present Business Relation, product, or Service of an Indemnified Party. Each party has a duty to instruct its employees and agents regarding this provision. For purposes of this Agreement, the term “disparage” includes, without limitation:
1. derogatory or inflammatory gestures;
2. derogatory or inflammatory, opinionated or unsubstantiated, comments or statements to the press, on social media, to an Indemnified Party’s Business Relations or to the public, that would adversely affect in any manner:
i. the conduct of any business of an Indemnified Party or its Business Relations, (including, without limitation, any business plans or prospects), or
ii. the business or product reputation of an Indemnified Party or its Business Relations.
3. attempts at “doxing” an Indemnified Party or its Business Relation (i.e. obtaining public or private information about the person/company and disseminating it in a manner intended to cause harm of any kind), or attempting to have a party or Business Relation “canceled” (i.e. to adversely influence public perception of the person/company to induce loss of job or business).
4. Nothing herein shall prohibit you from making factual statements supported by evidence, but such statements shall be presented in a factual, professional, non-inflammatory manner.
VIII. NO WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SAFETY, ACCURACY, COMPLETENESS, OR FREEDOME FROM ERRORS OR MISTAKES; AND NOTWITHSTANDING ANY OTHER TERMS OR REQUIREMENTS OF THIS POLICY, THERE IS NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OF FREEDOM FROM ANY OF THE FOLLOWING: THIRD PARTY VIRUSES, MALWARE, OR OTHER “HACKING,” TAMPERING, OR INTERFERENCE WITH THE SERVICES; ANY BEHAVIOR, ACTS, OMISSIONS, OR CONTENT OF OTHER USERS OR THIRD PARTIES; WHETHER OR NOT WE HAVE BEEN NOTIFIED OF SUCH OR THE POSSIBILITY OF SUCH ACTS, OMISSIONS, CONDUCT, OR BEHAVIOR. WE DO NOT ENDORSE, WARRANT, OR GUARANTEE THE QUALITY OR CONTINUITY OF ANY CONTENT, PRODUCT, OR SERVICE, AND WE HAVE NO CONTROL OVER AND ARE NOT RESPONSIBLE FOR THE ACTIONS OR BEHAVIOR OF OTHER USERS OF THE SERVICES OR MEMBERS OF THE PUBLIC.
We have the sole and absolute right to determine the scope and functionalities of the Services, to edit or delete without warning any content in our sole and absolute discretion, and may modify, close, suspend, or terminate the Services at any time, for any reason or no reason. We may cancel your account and use of the Services at any time, for any reason or no reason.
IX. RELEASE OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT ALL PHYSICAL ACTIVITY COMES WITH SOME LEVEL OF RISK AND THAT USE OF THE SERVICES IS VOLUNTARY AND AT YOUR OWN RISK, AND THAT NEITHER JORDAN GENTILE FITNESS, LLC, NOR ANY OF ITS OWNERS, DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, OR ADVISORS (THE “INDEMNIFIED PARTIES”) ARE RESPONSIBLE FOR YOUR SAFETY OR LIABLE FOR ANY INJURIES YOU MAY SUSTAIN FROM PHYSICAL ACTIVITIES THAT YOU CHOOSE TO ENGAGE IN, UP TO AND INCLUDING DEATH. NOTHING IN OR ABOUT OUR SERVICES CONSTITUTES MEDICAL ADVICE, NOR SHOULD IT BE CONSTRUED AS MEDICAL ADVICE. IT IS YOUR RESPONSIBILITY TO OBTAIN MEDICAL ADVICE FROM YOUR OWN APPROPRIATELY LICENSED PRACTITIONERS AND TO FOLLOW THEIR ADVICE, INCLUDING WITHOUT LIMITATION AS TO WHAT TYPES, LEVELS, AND MODIFICATIONS OF PHYSICAL ACTIVITY ARE APPROPRIATE FOR YOU. YOU REPRESENT AND WARRANT TO THE INDEMNIFIED PARTIES THAT YOU HAVE NO PHYSICAL CONDITIONS WHICH A MEDICAL PRACTITIONER HAS ADVISED, OR WOULD ADVISE, SHOULD PREVENT YOU FROM ENGAGING IN THE SERVICES.
YOU AGREE THAT THE INDEMNIFIED PARTIES, ARE NOT AND SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, OR LIABILITIES ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES OR ENGAGEMENT IN TRANSACTIONS WITH YOUR CUSTOMERS, INTERACTIONS WITH OTHER USERS, OR MEMBERS OF THE PUBLIC, INCLUDING WITHOUT LIMITATION ANY LOSSES OR DAMAGES FROM LOSS, THEFT, OR DAMAGE TO INFORMATION, DATA, PROPERTY, OR PERSONS, INCLUDING WITHOUT LIMITATION ANY PERSONAL INJURIES (UP TO AND INCLUDING DEATH), SUSTAINED BY YOU, YOUR EMPLOYEES, CUSTOMERS, AGENTS, GUESTS, FAMILY MEMBERS, OR INVITEES. WITHOUT LIMITING THE FOREGOING, IN ALL CIRCUMSTANCES, OUR MAXIMUM LIABILITY TO YOU SHALL BE THE EQUIVALENT OF AMOUNTS PAID BY YOU FOR THE SERVICES. IT IS THE USER’S RESPONSIBILITY TO OBTAIN ANY HEALTH INSURANCE AND/OR ACCIDENT INSURANCE FOR THE USER’S BENEFIT.
COVID-19; ILLNESS; INJURY; DEATH. USER ACKNOWLEDGES THE RISKS ASSOCIATED WITH THE SARS-COV-2 VIRUS (COMMONLY KNOWN AS COVID-19) AND OTHER CONTAGIOUS DISEASES, UP TO AND INCLUDING SEVERE ILLNESS AND DEATH. FOR ANY AND ALL IN PERSON SERVICES AND ACTIVITIES, USER SHALL COMPLY WITH ANY AND ALL COVID-19 PROTOCOLS REQUESTED OR REQUIRED BY US, BY LAW, OR BY ANY THIRD PARTY ACTIVITY SITE, ANY EVENT HOST OR PROMOTOR, OR ANY PREMISES OWNER OR TENANT, INCLUDING WITHOUT LIMITATION THE WEARING OF PROTECTIVE FACE COVERINGS, SOCIAL DISTANCING, USE OF HAND SANITIZER, AND CLEANING OR DISINFECTING OF TABLES OR OTHER ITEMS. FURTHER, WHETHER OR NOT SUCH MEASURES ARE REQUIRED, USER ASSUMES ALL RISKS IN RECEIVING THE SERVICES AND ATTENDING ACTIVITIES OR EVENTS HEREUNDER. FURTHER, USER, ON BEHALF OF HIM/HERSELF AND HIS/HER FAMILY MEMBERS, HEIRS, ESTATE, AND REPRESENTATIVES, AGREES TO AND SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS, LAWSUITS, INVESTIGATIONS, JUDGMENTS, AND OTHER LEGAL ACTION ARISING OUT OF OR RELATING TO USER’S ILLNESS, PERSONAL INJURY, OR DEATH FROM COVID-19, ANY OTHER ILLNESS, AND/OR ANY INJURY OR DEATH OCCURRING FROM ANY PARTICIPATION IN THE SERVICES WHETHER AT HOME OR ELSEWHERE, OR ANY OTHER CAUSE WHATSOEVER (“ILLNESS CLAIMS”), INCLUDING WITHOUT LIMITATION ANY AND ALL ACTUAL DAMAGES, STATUTORY DAMAGES, CONSEQUENTIAL DAMAGES, OR DAMAGES OF ANY OTHER KIND FOR WHICH AN INDEMNIFIED PARTY IS HELD LIABLE OR INCURS VIA SETTLEMENT OF ILLNESS CLAIMS, PLUS ATTORNEY’S FEES FOR COUNSEL OF THE INDEMNIFIED PARTY’S CHOOSING, THIRD PARTY ATTORNEY’S FEES FOR WHICH AN INDEMNIFIED PARTY IS HELD LIABLE OR INCURS VIA SETTLEMENT OF ILLNESS CLAIMS, AND ALL COSTS ASSOCIATED WITH THE INDEMNIFIED PARTY’S DEFENSE OF ANY SUCH CLAIMS AT ALL LEVELS OF PRE-LITIGATION, LITIGATION, SETTLEMENT, TRIAL, APPEAL, ENFORCEMENT, AND BANKRUPTCY. EACH INDEMNIFIED PARTY SHALL HAVE THE SOLE RIGHT AND OPTION TO SETTLE ANY CLAIMS AGAINST IT.
X. INDEMNIFICATION
You will indemnify, defend, and hold harmless the Indemnified Parties from and against any and all claims, losses, damages, actions, costs, expenses, and liabilities of any kind or nature whatsoever (including without limitation attorney’s fees), incurred by an Indemnified Party, arising from or relating to your use of and/or interaction with the Services or engagement in transactions having an origin in or relating to the Services, your breach of this or any other agreement, negligence, violation of law, regulation, or ordinance, violation of any third party rights, willful misconduct, or tortious act or omission (“Claims”), including without limitation any and all actual damages, statutory damages, consequential damages, or damages of any other kind for which an Indemnified Party is held liable or incurs via settlement of Claims, plus attorney’s fees for counsel of the Indemnified Party’s choosing, third party attorney’s fees for which an Indemnified Party is held liable or incurs via settlement of Claims, and all costs associated with the Indemnified Party’s defense of any such Claims at all levels of pre-litigation, litigation, settlement, trial, appeal, enforcement, and bankruptcy. Each Indemnified Party shall have the sole right and option to settle any Claims against it.
XI. LOCATION OF SERVICES
The Service is controlled and offered in the United States of America. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with all local applicable laws.
XII. FURTHER ASSURANCES
You agree to provide and/or sign any and all additional documents or materials necessary to effect or perfect any term, provision, or the intent of this Agreement or our other policies, as required by law or requested by us.
XIII. SEVERABILITY
If any term or provision of this Agreement is deemed unenforceable as written, it shall, if possible, be revised as closely as possible to the parties’ original intent in a manner consistent with the law, or else deleted if no legal revision is possible, and in any case the remainder of this Agreement shall remain in full force and effect, as closely as possible to the Agreement’s original intent.
XIV. GOVERNING LAW; JURISDICTION; VENUE
This Agreement shall be construed and interpreted according to the laws of the State of Florida without reference to the rules of conflicts of law. The parties hereby consent to the venue and jurisdiction of the legal tribunals serving Orange County, Florida, and each party hereby waives, to the fullest extent permitted by applicable law, any claim or defense that such courts constitute an improper, inconvenient, prejudicial, or otherwise inappropriate forum.
XV. BINDING ARBITRATION
Except for matters related to payment for Services, which may be resolved by collection efforts, mediation, arbitration, or judicial action, any other dispute, controversy, or claim arising out of or relating to this Agreement or the performance of the parties of the terms of this Agreement shall be referred to representatives of the parties for resolution between them, if possible. Such representatives may, if they so desire, consult outside experts for assistance in arriving at a resolution. Any such matter that is not resolved pursuant to the foregoing provisions or otherwise by agreement between the parties shall be submitted for resolution by non-binding mediation. Any such matter that is not thereafter resolved by mediation shall be referred to and settled by binding arbitration. The arbitration will be held in Orange County, Florida, or at such other place as the parties shall mutually agree, and shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect (the “Rules”); provided that, to the extent permitted or not prohibited by the Rules, the parties shall be bound by confidentiality of the existence and content of the proceeding(s). Any award rendered shall be final and conclusive upon the parties, and a judgment may be entered in any court having jurisdiction .
XVI. WAIVER OF JURY TRIAL
WITHOUT WAIVING OR LIMITING THE FOREGOING BINDING ARBITRATION REQUIREMENT, AS A MATERIAL INDUCEMENT FOR PROVIDING AND RECEIVING THE SERVICES, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION RELATED TO, BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTIONS DESCRIBED OR CONTEMPLATED HEREBY, AND/OR ANY RELATIONSHIP, COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY INCLUDING, BUT NOT LIMITED TO, SUBSEQUENT ACTIONS TAKEN IN ENFORCEMENT OF ANY PARTY’S RIGHTS UNDER THIS AGREEMENT. EACH PARTY HEREBY FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION, AND FURTHER HAS HAD THE OPPORTUNITY TO HAVE THE LEGAL COUNSEL OF ITS CHOOSING REVIEW THIS WAIVER AND THE ENTIRE AGREEMENT, OR ELSE HAS WAIVED SUCH OPPORTUNITY. IT IS THE PARTIES’ INTENTION THAT BY THIS WAIVER, ANY DISPUTE OF ANY NATURE WHATSOEVER, IN CONTRACT OR IN TORT OR OTHERWISE, OR IN ANY WAY WHATSOEVER RELATED TO BUSINESS BETWEEN THEM SHALL NOT BE TRIED BY A JURY.
XVII. LIMITATION ON ACTION
TO THE EXTENT ALLOWED BY LAW, WE AND YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
XVIII. ATTORNEY’S FEES
In the event of any dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, and at all levels of pre-trial, trial, appeal, enforcement, and bankruptcy (to the extent allowed), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, along with attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, court costs, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.
XIX. ASSIGNMENT
The Services provided are personal to the user and the user may not assign this Agreement, the Services, or user’s account, to another party. We may assign the Services or this Agreement without notice to you.
XX. WAIVER
Any waiver by a us of a breach of any provision of this Agreement, or any other policy shall not operate or be construed as a waiver of any subsequent breach hereof.
XXI. ELECTRONIC SIGNATURES
This Agreement may be executed “online” or otherwise electronically, and is legal and valid pursuant to the U.S. federal E-SIGN Act of 2000.
By signing below, and/or accessing, proceeding with, or accepting any of our Services, you acknowledge and agree that you have read, understand, and agree to this Release of Liability, which is a part of and incorporated into our Terms of Service. [insert hyperlink to Terms of Service]
