TERMS OF USE AGREEMENT
Last updated June 24, 2022
TABLE OF CONTENTS
2. INTELLECTUAL PROPERTY RIGHTS
9. USER GENERATED CONTRIBUTIONS
11. MOBILE APPLICATION LICENSE
14. THIRD-PARTY WEBSITES AND CONTENT
20. MODIFICATIONS AND INTERRUPTIONS
28. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
29. CALIFORNIA USERS AND RESIDENTS
1. AGREEMENT TO TERMS
This Terms of Use Agreement (the “Terms of Use,” and together with any Supplemental Terms, the “Agreement”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “User”) and SweatPals Inc. (“Sweatpals”, "Company", “we”, “us”, or “our”), concerning your access to and use of the https://www.sweatpals.com website and its subdomains (collectively, the “Site”), any mobile website or mobile application offered by us subject to these Terms of Use (each, an “Application”), and (iii) the services, content, and other resources available on or enabled via our Site or any Application (collectively, with our Applications and Site, the “Service”). If the individual entering into this Agreement is doing so on behalf of an entity, as identified in the account registration process, all references to “you”, “your” or “User” in this Agreement will also be deemed to refer to such entity and such individual represents that they have the authority to enter into this Agreement on behalf of such entity. We are registered in Texas, United States and have our registered office at 4810 Russet Hill Drive, Austin, TX 78723. You agree that by accessing the Service, downloading the Application, completing the account registration process, or otherwise accepting this Agreement, you have read, understood, and agree to be bound by the Agreement. IF YOU DO NOT AGREE WITH THE AGREEMENT, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
PLEASE BE AWARE THAT SECTION 22 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 22 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 22 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 22 CAREFULLY.
IF YOU ARE A CONSUMER, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US THROUGH BINDING, FINAL ARBITRATION, WITH LIMITED EXCEPTIONS, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE PROCEEDING OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms. Supplemental terms and conditions or documents that may be posted on the Service from time to time (“Supplemental Terms”) are hereby expressly incorporated herein by reference.
THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. We reserve the right, in our sole discretion, to make changes or modifications to the Agreement from time to time. When changes are made, Company will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of such terms. If we make any material changes and you have registered an account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your account. Unless otherwise stated in such update, any changes to the Agreement will be effective immediately. Your continued and/or subsequent access or use of the Service, including the acceptance of products and services offered on the Service following the posting of the updated Agreement, constitutes your unconditional acceptance of the updated Agreement. You acknowledge and accept that you are expected to check-back with the page(s) on our Service containing our Terms of Use and Supplemental Terms, as any changes are binding on you. Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Service is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Service. You may not use the Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
The Service is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Service.
2. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Service is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Service (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Service “AS IS” for your information and personal use only. Except as expressly provided in this Agreement, no part of the Service and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Service, you are granted a limited license to access and use the Service and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Service, the Content and the Marks.
3. USER REPRESENTATIONS
By using the Service, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with this Agreement; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Service through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Service for any illegal or unauthorized purpose; and (7) your use of the Service will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
4. USER REGISTRATION
You may be required to register with the Service. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
5. FEES AND PAYMENT
We accept the following forms of payment:
- Mastercard
- Visa
- American Express
- Discover
You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Service. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Service. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.
You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase.
We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Service.
6. CANCELLATION
All purchases are non-refundable. You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect at the end of the current paid term.
If you are unsatisfied with our services, please email us at support@sweatpals.com or call us at +1 737 302 4523.
7. SOFTWARE
We may include software for use in connection with our services. If such software is accompanied by an end user license agreement (“EULA”), the terms of the EULA will govern your use of the software. If such software is not accompanied by a EULA, then we grant to you a non-exclusive, revocable, personal, and non-transferable license to use such software solely in connection with our services and in accordance with the Agreement. Any Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. You accept any and all risk arising out of use or performance of any Software. You may not reproduce or redistribute any software except in accordance with the EULA and this Agreement.
8. PROHIBITED ACTIVITIES
You may not access or use the Service for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Service, you agree not to:
9. USER GENERATED CONTRIBUTIONS
The Service may invite you and other users to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Service, including but not limited to information, data, text, writings, music, photographs, messages, tags, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Service and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary.
You acknowledge that Contributions are the sole responsibility of the party from whom such Contribution originated. This means that you, and not Company, are entirely responsible for all Contributions that you upload, post, email, transmit or otherwise make available (“Make Available”) through the Service, including the SNS Contributions, and that other users of the Service, and not Company, are similarly responsible for all Contributions that they Make Available through the Service.
When you create or make available any Contributions, you thereby represent and warrant that:
Any use of the Service in violation of the foregoing violates this Agreement and may result in, among other things, termination or suspension of your rights to use the Service.
10. CONTRIBUTION LICENSE
Subject to any applicable settings that you select, you grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), create derivative works of, and distribute any Contributions you Make Available to the Service or made accessible to or through the Service by linking your account to your social networking accounts, i.e. Social Network Content (including, without limitation, your image and voice, name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide) for the purposes of operating and providing the Service to you and to our other users.. Please remember that other users may be able to search for, see, use, modify and/or reproduce any of your Contributions that you submit to any area of the Service that is accessible by other users. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Service. You are solely responsible for your Contributions to the Service and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Service; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice.
11. MOBILE APPLICATION ACCESS
Use License
Subject to your compliance with this Agreement, if you access the Service via an Application, then we grant you a revocable, non-exclusive, non-transferable, non-sublicensable limited right and license to download, install and use a copy of the Application on a single wireless electronic devices owned or controlled by you, and to access and use the Application on such devices strictly in accordance with the terms and conditions of this Agreement for your own personal or internal business purposes only.
Apple and Android Devices
With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
12. SOCIAL MEDIA
As part of the functionality of the Service, you may link your account with online accounts you have with third-party service providers (each such account, a “Third-Party Account”) by either: (1) providing your Third-Party Account login information through the Service; or (2) allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent and warrant that you are entitled to disclose your Third-Party Account login information to us and/or grant us access to your Third-Party Account, without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account, and without obligating us to pay any fees or making us subject to any usage limitations imposed by the third-party service provider of the Third-Party Account. By granting us access to any Third-Party Accounts, you understand that (1) we may access, make available, and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “Social Network Content”) so that it is available on and through the Service via your account, including without limitation any friend lists and (2) we may submit to and receive from your Third-Party Account additional information to the extent you are notified when you link your account with the Third-Party Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Service. Please note that if a Third-Party Account or associated service becomes unavailable or our access to such Third-Party Account is terminated by the third-party service provider, then Social Network Content may no longer be available on and through the Service. You will have the ability to disable the connection between your account on the Service and your Third-Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. We make no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and we are not responsible for any Social Network Content. You acknowledge and agree that we may access your email address book associated with a Third-Party Account and your contacts list stored on your mobile device or tablet computer solely for purposes of identifying and informing you of those contacts who have also registered to use the Service. You can deactivate the connection between the Service and your Third-Party Account by contacting us using the contact information below or through your account settings (if applicable). We will attempt to delete any information stored on our servers that was obtained through such Third-Party Account, except the username and profile picture that become associated with your account.
13. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Service ("Submissions") provided by you to us are non-confidential. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Submissions, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Company’s business. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse by you against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
14. THIRD-PARTY WEBSITES AND CONTENT
The Service may contain (or you may be sent via the Service) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Service or any Third-Party Content posted on, available through, or installed from the Service, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Service and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware this Agreement no longer governs. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Service or relating to any applications you use or install from the Service. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
15. U.S. GOVERNMENT RIGHTS
Our services are “commercial items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If our services are acquired by or on behalf of any agency not within the Department of Defense (“DOD”), our services are subject to the terms of this Agreement in accordance with FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If our services are acquired by or on behalf of any agency within the Department of Defense, our services are subject to the terms of this Agreement in accordance with Defense Federal Acquisition Regulation (“DFARS”) 227.7202-3. In addition, DFARS 252.227-7015 applies to technical data acquired by the DOD. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data under this Agreement.
16. SERVICE MANAGEMENT
Company may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Contributions, including your Contributions, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of your Contributions, including without limitation chat, text, or voice communications.
Without limiting the foregoing, Company reserves the right to: (a) remove or refuse to post any of your Contributions for any or no reason in our sole discretion; (b) take any action with respect to any of your Contributions that we deem necessary or appropriate in our sole discretion, including if we believe that such Contribution(s) violate this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Company; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if Company otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Company, may, at its sole discretion immediately terminate your license to use the Service, or change, alter or remove your Contribution(s), in whole or in part, without prior notice to you.
If Company believes that criminal activity has occurred, Company reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including your Contributions, in Company’s possession in connection with your use of the Service, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that your Contributions violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Company, its users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
17. INTERNATIONAL USERS
Please be advised the Service is hosted in the United States. The Service may be accessed from countries around the world and may contain references to services that are not available in your country. Company makes no representations that the Service is appropriate or available for use in other locations. These references do not imply that Company intends to announce such service in your country. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
18. COPYRIGHT INFRINGEMENTS
We respect the intellectual property rights of others. It is Company’s policy to terminate membership privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to Company by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that any material available on or through the Service infringes upon any copyright or other intellectual property right that you own or control, please provide our designated intellectual property agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (ii) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf. Contact information for Company’s designated agent for notice of claims of infringement is as follows: Salar Shahini, 2305 Southern Oaks Drive, Austin, TX, USA 78745.
19. TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Service. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION, INCLUDING CONTRIBUTIONS THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
20. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Service at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Service. We also reserve the right to modify or discontinue all or part of the Service without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Service.
We cannot guarantee the Service will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Service, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Service at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Service during any downtime or discontinuance of the Service. Nothing in this Agreement will be construed to obligate us to maintain and support the Service or to supply any corrections, updates, or releases in connection therewith.
21. GOVERNING LAW
This Agreement and your use of the Service are governed by and construed in accordance with the laws of the State of Texas applicable to agreements made and to be entirely performed within the State of Texas, without regard to its conflict of law principles.
22. DISPUTE RESOLUTION
To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Company should be sent by email to support@sweatpals.com or regular mail to our offices located at 2305 Southern Oaks Drive, Austin, TX, USA 78745. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute, including the specific relief sought. Company will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date. The Notice must be signed by the party initiating the Dispute (i.e., either you personally or a Company representative).
The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. The Informal Dispute Resolution Conference, if requested by either party, shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
The arbitration will be administered by the National Arbitration & Mediation ("NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to Company should be sent by email to support@sweatpals.com or regular mail to our offices located at 2305 Southern Oaks Drive, Austin, TX, USA 78745. Company will provide the Demand to your [email/regular] address on file. It is your responsibility to keep your contact information up to date.
If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).
Unless you and Company otherwise agree, or the Batch Arbitration process discussed in subsection 22.9 is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in Travis County in the State of Texas or, at your election, the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”).
You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
You and Company agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
You and Company agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
23. CORRECTIONS
There may be information on the Service that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Service at any time, without prior notice.
24. DISCLAIMER
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
25. LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUPPLIERS, LICENSORS OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE OR ANY SERVICES OFFERED BY A THIRD PARTY; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (A) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING HOSTS OF COMMUNITIES AND EVENTS (“HOSTS”) AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS, INCLUDING HOSTS, AND COMPANY MAKES NO WARRANTY THAT THE GOODS OR SERVICE PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER’S CONTRIBUTIONS OBTAINED THROUGH THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING; (II) $100; OR (III) IF APPLICABLE, THE STATUTORY REMEDY OR PENALY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.
COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTRIBUTIONS (INCLUDING, BUT NOT LIMITED TO, YOUR CONTRIBUTIONS AND OTHER USER’S CONTRIBUTIONS), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
26. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Service; (3) breach of the Agreement; (4) any breach of your representations and warranties set forth in the Agreement; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Service with whom you connected via the Service. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
27. USER DATA
We may maintain certain data and other Contributions that you transmit to the Service for the purpose of managing the performance of the Service, as well as data relating to your use of the Service. Although we perform regular routine backups of data, you are solely responsible for all data and other Contributions that you transmit or that relates to any activity you have undertaken using the Service. You agree that we shall have no liability to you for any loss or corruption of any such data or other Contributions, and you hereby waive any right of action against us arising from any such loss or corruption of such data and other Contributions.
28. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Service, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Service, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
29. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
30. MISCELLANEOUS
The Agreement and any policies or operating rules posted by us on the Service or in respect to the Service constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement operates to the fullest extent permissible by law. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of this Agreement or use of the Service. You agree that this Agreement will not be construed against us by virtue of having drafted them.
The communications between you and Company may take place via electronic means, whether you visit the Service or send Company emails, or whether Company posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Company in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company electronically provided to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
Where Company requires that you provide an email address, you are responsible for providing Company with a valid and current email address. In the event that the email address you provide to Company is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Company’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: 2305 Southern Oaks Drive, Austin, TX, USA 78745. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
31. Mobile Messaging User Consent.
We and Hosts who use our Service may offer you opportunities to opt-in through our Service to receive informational and/or marketing mobile messages (e.g., SMS and MMS messages) at the telephone number you provide. By opting in, you agree you are providing your electronic signature authorizing SweatPals and the designated Host, as applicable, express written permission to send you marketing and informational mobile messages at any time of day to the number designated at the time of signup. You agree such messages may be sent using an automatic telephone dialing system or other automated system for the selection or dialing of telephone numbers. You understand your consent to receive marketing messages is not a condition of any purchase, rental or investment transaction and may be revoked at any time by replying STOP. By opting in to receive mobile messages from a Host, you acknowledge and agree that the Host is solely responsible for any messages sent by or on behalf of the Host regarding the Host, its events or products or services, you covenant not to assert claims against Sweatpals for such messages, and waive to the fullest extent permitted by law any claims or causes of action against Sweatpals and its officers, directors agents, employees, service providers and affiliated companies, including without limitation, claims under the federal Telephone Consumer Protection Act (“TCPA”) and state telephone solicitation laws and regulations, arising out of or relating to such messages. Messages may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. Sweatpals, Hosts and supported wireless carriers are not liable for any failed, delayed or undelivered messages.
Host Responsibilities. Each Host represents and warrants that it will (i) send mobile messages to users only through SweatPals, (ii) honor all optouts immediately, and (iii) indemnify, defend and hold harmless SweatPals and the other Company Parties for any TCPA or other claim arising from Hostinitiated messages and communications, in accordance with Section 26 (Indemnification).
32. HOST EVENTS.
If you purchase tickets to Hosts’ events, such purchases are subject to those certain terms and conditions specified by the Host on the event page and each winner and guest agree to comply with such terms and conditions, as well as with all rules and regulations of any applicable venue. Admission to events is subject to the restrictions and requirements of the applicable venue and Host. The Hosts, venue, and/or other relevant parties reserve the right to deny entry to the venue to any individual who violates the venue’s or event’s rules, regulations and/or fail to meet such venue or event’s requirements.
33. CONTACT US
In order to resolve a complaint regarding the Service or to receive further information regarding use of the Service, please contact us at:
SweatPals Inc.
2305 Southern Oaks Dr
Austin, TX 78745
United States
Phone: +1 737 302 4523
support@sweatpals.com