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TERMS OF USE

The following terms and conditions (the “Terms of Use” or “terms”) apply to the use of the DeniseAustin.com website and related mobile sites and applications (collectively referred to hereafter as the “Website“), including any and all services provided through this Website.

The Website is owned and operated by Denise Austin Enterprises LLC (“DAE”).

By clicking “I accept”, you agree to be personally bound by the Terms of Use, whether for yourself or on behalf of a minor (as determined by the jurisdiction in which you reside), if you are registering on behalf of a minor. By clicking “I accept”, you represent and warrant that you are at least 18 years old (or the age of majority in your jurisdiction, if it is not 18), and if you are registering on behalf of a minor, that you are their legal guardian and that the minor is 13 years of age or older. This Website is not intended for, and should not be used by, children under the age of 13, even with parental consent.

The Terms of Use apply to the use of this Website, including the use of the information services provided through this Website.

Upon registration as a member, you will be provided with a password and account. You must not disclose them to anyone else or allow anyone else to use your account and password. You are entirely responsible for any access to your account, and acknowledge that any access to or use of your account by means of the password associated with that account is deemed to be access or use by you. This includes any purchases made through your account. You agree to pay for our services in the manner specified on the Website.

If you, or a user on whose behalf you register (including a minor), breaches these Terms of Use, you acknowledge that we may immediately suspend or terminate your account, without refund, and take appropriate legal action (if we choose) against you and others acting in concert with you. Further you acknowledge that DAE is entitled to suspend or terminate your use of the Website or membership at any time if DAE considers that you have brought, or may bring, the reputation of DAE or its members into disrepute.

If you are registering on behalf of a minor, it is your responsibility to inform them of their obligations as a user of this Website and ensure their compliance with these Terms of Use.

1.   CONDITIONS OF USE OF SITE

Seek advice from Medical Professional

As with any physical activity, it is important that before beginning any fitness regime, you consult with your health care professional to ensure that you are mindful of your current health and any restrictions that are appropriate for you. You should immediately seek medical attention if there are any unanticipated changes to your physical condition at any time.

No information contained in the Website is intended to be used as medical advice and the Website is not intended to be used to diagnose, treat, cure or prevent any medical condition (including any mental health conditions) or for any therapeutic purposes. Before relying on the information on the Website, you should carefully evaluate the accuracy and relevance of the information for their purposes and obtain appropriate professional medical advice.

You must consult a qualified medical professional if you have any questions concerning your medical condition or injury.

Our Service

Our service shall be delivered as described from time to time on our Website. You acknowledge and understand that access to any specific trainer mentioned in the Website, including Denise Austin, in person, or on-line is not guaranteed.

License

We grant you a limited license to use the Website as set forth in these Terms of Use. Any other uses are strictly prohibited.

Monitoring

We may, from time to time, monitor your use of the Website to determine if you are in breach of these terms. Such monitoring may include:

1.              the frequency and nature of any downloads; and
2.              the time of access and IP addresses used to access the Website.

Information Provided on Website

All information provided by us on the Website is provided in good faith. We derive our information from sources which we believe to be accurate and up to date as at the date of publication. We may update any information at any time but you acknowledge that the information on the Website may not be the most current knowledge. In addition, to the extent permitted by law, we do not make any representations or warranties that any information we provide is reliable, accurate or complete and we make no guarantees of any specific result from use of this Website or the information service provided through it. To the extent permitted by law, we are not liable for any loss arising from any action taken or reliance by you on any information or material available on the Website.

The DAE Support Crew includes experts on nutrition and fitness. Our experts may receive requests from members about that member’s specific circumstances.  Our experts may provide health, fitness or nutritional information, but will do so for educational purposes only and not as medical advice.  We do not offer or provide professional medical advice, diagnosis, treatment or rehabilitation. We may refer the member to certain third party resources.  For example a member who has diabetes may be referred to http://www.diabetes.org/.  Any referrals to official bodies are not intended to be and should not be construed as an endorsement, promotion or recommendation by DAE.

Nutritional Information

Nutritional information provided on the Website is taken from sources provided by third parties, including the US Department of Agriculture National Nutrient Database, and food manufacturers, where applicable. Before relying on any nutritional information on the Website, you should carefully evaluate the accuracy, completeness and relevance of this information for your purposes, and consider the need to obtain appropriate expert advice relevant to your circumstances. Neither DAE nor any other provider of nutritional information on the Website gives any warranty that the information is free from error or suitable for your purposes.

There are limitations associated with food composition and nutritional information databases. Nutrient data published in a database such as NUTTAB 2010 may represent an average of the nutrient content of a particular sample of foods and ingredients, determined at a particular time. The nutrient composition of foods and ingredients can vary substantially between batches and brands because of a number of factors, including changes in season, changes in formulation, processing practices and ingredient source. While most of the data contained in NUTTAB 2010 are generated from analyzed values, some of the data are borrowed from overseas food composition tables; supplied by the food industry; taken from food labels; imputed from similar foods; or calculated using a recipe approach.

Recommendations and test results on the Website

Certain parts of the Website may provide recommendations and test results based on the input and data that you provide. These recommendations and test results generated by the Website are generic automated responses that are pre-programmed, and they do not take into account any other factors that may be relevant to you. They are provided for your general information purposes only, and are not medical or professional opinion or advice. You must not rely on these recommendations and test results, and you should seek professional advice from healthcare professionals. To the extent permitted by law, we are not liable or responsible for any recommendations and test results generated by use of the Website.

Fitness Level

You must be in a moderate level of fitness to follow the exercise programs set out in our information service and on our Website. Persons with pre-existing medical conditions, in poor health, or those commencing a new fitness regime should consult with an appropriate healthcare professional before beginning any of these programs. You are responsible to make your own inquiries and seek independent advice from a healthcare professional before acting on any information or material made available to you through our Website. The information on the Website may not be suitable to your particular circumstances and is not a substitute for obtaining specific advice from a qualified health care professional. In particular, if you fall within one of the following classes of persons, then you should first consult a healthcare professional before following any exercise programs or using any of the information on the Website:

Further, even if you do not fall into the above classes of persons, you acknowledge that the service that we provide on the Website is an information service only, and that you are solely responsible for (at your own discretion) following (or not following) any exercise program or regime that we provide as part of the information service. Our service does not include any supervision or monitoring of your activity, and we are not responsible for any injuries that you may suffer as a result of following the exercise program or regime. To the extent we supply any “recreational services” or “recreational activities” or any State civil liability or consumer protection legislation or corresponding services or activities under any other applicable local law from your jurisdiction, you acknowledge that your participation in the recreational services and activities may involve risks, including personal injury and death. Prior to participating in the recreational services and activities, you must assess all the risks involved, including risks that may be caused by your own acts or omissions, your health condition, those of other users of the Website and risks that are not known to you or are not readily foreseeable at the time of participating in the recreational services and activities. By participating, you are doing so voluntarily and at your own risk. To the extent permitted and required by law, this is a risk warning pursuant to the various civil liability and consumer protection legislation. You assume all risks in connection with your participation in any recreational services and activities that we may provide. To the maximum extent permitted by law, we exclude all liability arising from or in connection with any recreational services or activities for: (1) death; (2) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury); (3) the contraction, aggravation or acceleration of a disease; and (4) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behavior, course of conduct or state of affairs: (a) that is or may be harmful or disadvantageous to you or the community; or (b) that may result in harm or disadvantage to you or the community, resulting from the supply of recreational services or recreational activities, but we do not exclude our liability to significant personal injury which is caused by our reckless conduct in the supply of recreational services or activities.

Quality of the Website

We do not promise that the Website will be error-free or uninterrupted. The Website and its content are delivered on an “as is” and “as available” basis. We cannot ensure that files you download from the Website will be free of viruses or contamination or destructive features. Receipt of emails, or other Internet based communications such as via Facebook or Twitter from us cannot be guaranteed. The delivery of video messages is dependent upon third party providers and therefore outside of our control. Low Internet connection speeds may result in an inability to view high resolution videos, but we will use our best endeavors to provide an alternative wherever possible.

You may be entitled to a refund in limited circumstances. See the clause (payment and refunds) below for further details.

Third Party Content

We do not accept responsibility for any loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with or arising from use of any of our products or services including acts, omissions and conduct of any third party users of the Website, other members, other contributors to the Website, and advertisers or sponsors. We are not responsible for the products, services, advice, information, actions or failure to act of any third parties referenced on the Website (including User Content of other users of the Website referred to below). Where the information made available over the Website contains opinions or judgments of third parties (including advertisers), we do not purport to endorse the contents of that opinion or advice, nor do we guarantee the accuracy or completeness of that content, and we will not accept liability for loss or damage arising from your reliance upon any information obtained through this service. It remains your responsibility to evaluate the accuracy, completeness and usefulness of any such information.

By way of example, the members-only area of the Website contains feeds from the Denise Austin Facebook pages and Twitter account and are for educational purposes only and are not intended as a substitute or replacement for professional medical advice, diagnosis, treatment, or rehabilitation.  These messages could contain a range of content: marketing materials, testimonials, recipes, encouragement to members, and interesting articles on third party sites.

Non-DAE Products or Services

Members and third parties are not permitted to advertise or promote their products or services, or the products or services of others, on any part of the Website, or its associated forums, without written consent from DAE. If in the opinion of the DAE members or third parties are engaged in advertising, promotion or providing advice to other participants of the Website, then DAE reserves the right to suspend or terminate the membership of any member participating in such conduct or to ban any third party from participating on the Website.

Security of Information

No data transmission over the Internet can be guaranteed as totally secure. While we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information. Understand, however, that no electronic means of transmission or storage are entirely secure, and we cannot take responsibility for any data loss, access or theft.

Limitation of liability

Indirect and Consequential Loss

To the extent permitted by law, in no event will we (or our employees, agents and subcontractors) be liable to you for indirect, special or incidental, punitive, exemplary or consequential loss, costs, expenses and damages (or any loss of revenue, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect), suffered or incurred by you and arising out of or in connection with your access to or use of the Website, any linked website, your reliance on any information obtained through the Website or your use of any services on the Website, regardless of whether liability is based on any breach of contract, tort (including negligence) or warranty, arises under statute, or any other basis of liability. In addition, DAE’s and its affiliates’, representatives’, officers’, directors’, employees’ and agents’ total aggregate liability for any claims arising from your use of the Website shall not exceed $500.

Terms Implied by Law

To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms is excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to, at our option:

1.              if the breach relates to goods, replacing, repairing or supplying goods equivalent to, those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or
2.              if the breach relates to services, re-supplying, or paying the cost of re-supplying, those services.

 

2.             INDEMNITY

You further agree to indemnify and hold DAE and its affiliates, and their respective directors, officers, stockholders, employees, consultants, agents or representatives (collectively, “Representatives“) harmless from and against any third-party claim, cause of action, demand or damages related to or arising out of: (a) User Content that you post or transmit (including but not limited to User Content that a third-party deems defamatory or otherwise harmful or offensive); (b) activity that occurs through or by use of your account (including, without limitation, all content posted or transmitted); (c) your use of or reliance on any User Content; and (d) your violation of these Terms of Use. This indemnification obligation includes payment of any attorneys’ fees and costs.

 

3.             INTELLECTUAL PROPERTY

Unless otherwise indicated and except for any functionalities provided by external websites, copyright in this Website (including its content, materials, recipes, exercise programs, text, graphics, logos, icons, sound recordings, video, software and advertisements) is owned or licensed by us. Information procured from a third party may be the subject of copyright owned by that third party. All rights are reserved by us.

All names, logos and trademarks on this Website are the property of their respective owners. Nothing on the Website should be interpreted as granting any rights to commercial use or to distribute any names, logos or trademarks, without the express written agreement of the relevant owners.

We grant you a personal, limited, revocable, non-exclusive and non-transferable license to access, view, listen to, use and print portions of this Website and its content solely for your personal, non-commercial purposes and only for those purposes. Otherwise, to the extent allowed by law, no part of this Website may be reproduced, reused, retransmitted, adapted, published, broadcast or distributed without our prior written permission.

We may suspend, limit or terminate your access to the Website (at our discretion) if we reasonably suspect, based on the results of such monitoring, that you are in breach of these terms.

For Users : The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials appearing on this Web Site infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked.

In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the U.S. Copyright Office Web Site, currently located at http://www.loc.gov/copyright.

In accordance with the DMCA, we have designated an agent to receive notification of alleged copyright infringement in accordance with the DMCA.

Please note: If you materially misrepresent that online material, product, or activity is infringing your copyright, you may be liable for damages (including court costs and attorneys’ fees) and could be subject to criminal prosecution for perjury. We suggest that you consult your legal advisor before filing a notice or counter-notice.

 

4.             USER-GENERATED CONTENT

This Website may allow you to post information, photos, content, user submissions and/or upload materials to the Website (including features such as live chat and forums), whether through external websites or otherwise (collectively, “User Content”) and may also allow you to see User Content submitted by other persons.

The Website may include functionalities that allow you to control whether or not the public or other users of the Website are able to view your User Content (“Access Controls”). We will use our best endeavors to ensure that the Website properly implements the Access Controls that you select, but we do not warrant or guarantee that the implementation is error free. If you discover any improper implementation of your selected Access Controls, please inform us immediately so that we can investigate and, where appropriate, correct the error. To the extent permitted by law, we are not liable for any loss or damage arising as a result of or in connection with any incorrect implementation of the Access Controls that you select (including any resulting disclosure of your User Content that you did not intend to disclose).

Because we are not able to guarantee that the implementation of the Access Controls is error free, you should take particular care before deciding whether to upload any User Content. In particular, you should be aware that, if your User Content is downloaded by any other person (including other users of the Website), whether authorized or not, then neither DAE nor you may be able to control the further disclosure and publication of that User Content. You should be particularly careful if you are allowing a minor to post any User Content to the Website or if posting personal and sensitive information.

By posting, submitting, updating, modifying, transmitting or otherwise making available any User Content on this Website:

 

1.              you warrant and represent that you independently created or otherwise have all the necessary rights and permissions needed to submit User Content to the Website;

2.              you grant to us a royalty-free, non-exclusive irrevocable, perpetual and world-wide license of the intellectual property rights in the User Content to use, modify, copy, sub-license, distribute, reproduce, adapt, transmit, publish and/or broadcast, publicly perform, communicate and display in any manner and by any means which we may determine (subject to us using reasonable endeavors to implement the Access Controls that you have selected);

3.              you warrant and represent that your User Content, and posting such User Content onto the Website, do not infringe the rights (including intellectual property rights, privacy, reputation and right of publicity) of any other person, and you agree to indemnify us and our affiliates against any third party claims arising from your use of the Website in breach of this paragraph (3); and

4.              to the full extent permitted by law (and subject to us using reasonable endeavors to implement the Access Controls that you have selected), you consent to us (and all persons authorized by us) doing anything in relation to your User Content which would otherwise constitute an infringement of your moral rights that you may have in the User Content. To the extent that a waiver, rather than a consent, is required in any jurisdiction, then you waive any moral rights you may have.

In addition you agree not to post, upload, publish, submit or transmit any information or material that:

We have the right, but not the obligation, to monitor and review User Content from time to time and we may, at our sole discretion and without prior notice to you, remove or edit any of your User Content for any reason (or for no reason at all).

Notwithstanding our right to monitor, review and edit any User Content, we are not obliged to do so. We accept no, and you hereby affirmatively release us from any, responsibility or liability with respect to any User Content. In particular, you acknowledge and agree that we do not authorize, condone or endorse any User Content of any other user, and are not responsible for the accuracy, legality or decency of such content. You are solely responsible for verifying the veracity of any claims or statements made in any User Content.

You acknowledge that, subject to us using reasonable endeavors to implement the Access Controls that you have selected, your User Content will be displayed on the Website, and other users may use, view and download your User Content. We are not responsible for how other users will use your User Content. You should take care before posting anything sensitive or personal about yourself to any part of the Website that is accessible to the public or other users of the Website.

Some User Content may refer to events or activities that are organized by other users of the Website. We are not responsible for organizing these events and activities, and do not authorize or endorse them. You are solely responsible for determining whether to participate in these events and activities, at your own risk. If you believe that your rights have been infringed by any other User Content, or wish to report any User Content that does not comply with these terms, please contact our administrator at admin@deniseaustin.com.

You automatically grant and assign to DAE, and you represent and warrant that you have the right to grant and assign to DAE, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable, worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any User Content that you post. You also expressly grant and assign to DAE all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any User Content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

 

5.             PERMITTED USES

We prohibit the use of this Website and any of its functionalities, features and content in any manner other than as expressly allowed by us in these terms. With respect to your use of or participation in any interactive facility on the Website, you acknowledge and agree that:
1.              we may notify and/or cooperate with any authorities and law enforcement agencies in relation to any of your activities in connection with the Website, including providing any and all information about you held by us (whether of a personal nature or otherwise), to those entities;
2.              at our request, you will do all things necessary and desirable, either to give effect to these terms or to help us comply with all regulatory directions and obligations and
3.              you will not:

1.              bypass (or attempt to bypass) any security mechanisms imposed by the Website;
2.              harvest or collect email addresses, photographs or personal information of other users;
3.              exploit the Website for your own commercial or unlawful purposes or the commercial or unlawful purposes of any other person   (including the posting of advertisements, solicitors, promotional materials, “spam” or any other materials that are contrary to our commercial or lawful interests);

4.              provide access or links to any material (including links to peer to peer network “trackers”) which may infringe the intellectual property rights of another person; or

5.              delete or alter or attempt to delete or alter attributions, legal notices, trademarks or copyright marks on any material contained in the Website;
6.              collect information about the Website or users of the Website without our written consent;
7.              modify, frame, rendering (or re-render), mirror, truncate, inject, filter or change any content or information contained in the Website, without our written consent;
8.              use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor the Website or any portion thereof;
9.              disguise the origin of information transmitted to, from, or through the Website.
10.           impersonate another person or user (including logging onto the Website and/or utilizing our services via an account other than your own);
11.           distribute viruses or other harmful computer code;
12.           use the Website for any purpose in violation of local, state, national, international laws;
13.           use the Website in a way that is intended to harm, or a reasonable person would understand would likely result in harm, to the user or others;
14.           circumvent any measures implemented by us aimed at preventing violations of the Terms of Use.
15.           share the content of this Website or your account with other persons;
16.           publish or post any of the content (such as recipes or exercise programs) on any other website, including on social media pages or other websites;
17.           use the logo or trademarks of this Website, the phrase “Denise Austin’s 10 Week 360° Plan” (or anything substantially identical or deceptively similar), Denise Austin or her likeness to describe, market, endorse or promote any goods or services (including goods and services such as meal plans and personal training services);
18.           register or maintain any social media pages or websites that misrepresent or are reasonably likely to misrepresent any affiliation with, or endorsement by, us or Denise Austin; or
19.           engage in systematic downloading, crawling, use of ots or otherwise engage in “scraping” of content of the Website.
We will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate the Terms of Use. You acknowledge that we have no obligation to monitor your access to or use of the Website or to review, monitor or edit any information or materials submitted by users, but has the right to do so for the purpose of operating the Website, to ensure your compliance with the Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any user account or profiles, at its sole discretion, if we consider it to be objectionable for any reason, in violation of the Terms of Use or otherwise harmful to the Website.

6.             LINKED WEBSITES

The Website (or User Content) may reference or link to third party sites on the internet. We have no control over these sites or the content within them. We cannot, and do not, guarantee, represent or warrant that the content contained in the sites is accurate, legal and/or inoffensive. We do not endorse the content of any third party site, nor do we warrant that they will not contain viruses or otherwise impact your computer. By using the Website to search for or link to another site, you agree and understand that you will not make any claim against us for any damages or losses, however arising, which results from your use of the link to access another site.

 

7.             PAYMENT AND CANCELLATION

Orders are subject to acceptance by us. Acceptance (or rejection) of an order will be notified to you as part of the ordering procedure. Acceptance and continued access to our service is always subject to payment first being made by you. For the avoidance of doubt, by placing an order, you make an offer to purchase the relevant subscription that is the subject of your order. We reserve the right to terminate your access to our service if you are not up to date with any payment plan that may be offered.

We expect that we will use PayPal payment gateway or a similar service for most financial transactions. We may also allow you to pay for your subscription fees and other items using a credit card, but in any event we will not save or store your credit card information or other financial details. You agree that we will not be held liable for any loss you incur arising from your use of any payment method unless caused by our fraud.

For users in the United States, we collect and remit sales tax in connection with the sales of goods and services where applicable and required by U.S. or state law.

In order to cancel the program, please email us at cancellations@deniseaustin.com.

Cancellation Terms

  1. There are no cancellation fees with the monthly LifeFit Plan. You can cancel at anytime and your monthly automatic billing will be terminated. There are no refunds (or pro rated refunds) associated when you cancel the LifeFit Plan.
  2. For purchases through the shop upon return of the item we will issue a full refund not including shipping.
  3. Any refunds will be processed within 5 business days.

Upon receipt of a cancellation (or refund if applicable) your agreement with us is at an end and we will cancel your account. You agree that this is your sole remedy in these circumstances.

 

8.             VARIATION

You are bound by the latest version of the Terms of Use. We may vary, amend or add to these terms at any time. Where there are material changes to the Terms of Use that could adversely affect DAE members or you we may provide you additional notice to you by way of the email address you have provided to us. Without limiting our right to give notice by any other means, you will be deemed to have received notice of such changes by your continued use of the Website after such changes take effect.

 

9.             PERSONAL INFORMATION COLLECTION NOTICE

In registering for access or using this Website, you may be required to give us certain personal information, such as your name, telephone number and email address. Personal information relating to you which we collect, use and disclose may include sensitive information, such as information about your health, your details related to how you pay for our services, your age, height and weight. If you do not provide all of the personal information that we request, then you may not be able to complete the registration process, or we may not be able to provide all or some our services to you.

In addition to any reasons that we may separately notify to you at the time of collection, we collect, use and disclose your personal information for the reasons set out in our Privacy Policy, which contains information about how we use such personal information collected from you.

 

10.         TERMINATION

DAE may in its sole and absolute discretion refuse registration, or suspend or terminate membership at any time and for any reason, subject to a valid pro-rata refund of fees.

If a provision of these terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other terms.

 

11.         SURVIVAL

The terms underneath the following headings survive the termination and expiry of this agreement: “disclaimer”, “limitation of liability”, “indemnity”, “intellectual property” and “user-generated content”.

 

12.         GOVERNING LAW & FORUM SELECTION/JURISDICTION

Any disputes arising as a result of: your use of this Website, your account, any purchases made through this Website, and any other controversy, claim or dispute arising between you and DAE or its affiliates shall be governed by the laws of the state of New York.

Jurisdiction and venue for any dispute shall be in the city and county of New York. Each party submits to personal jurisdiction and venue in that forum for any and all purposes. If this paragraph would render any other paragraph or provision unenforceable, the jurisdiction and venue shall instead be in your home county of residence.

 

13.         AGREEMENT TO ARBITRATE CLAIMS

You agree to only resolve disputes arising hereunder pursuant to the terms of this Section. However, DAE and you agree that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings are initiated. In the event of a dispute, the claimant – whether you or DAE– shall send a letter to the other side briefly summarizing the claim and the request for relief. If DAE is the claimant, the letter shall be sent, via email, to the email account listed in your account. If you are the claimant, the letter shall be sent via overnight courier with confirmation of delivery to David Cohen, Morrison Cohen, LLP, 909 Third Avenue, New York, NY 10022. If the dispute is not resolved within sixty (60) days after the letter is sent, the claimant may proceed to initiate arbitration proceedings as set forth below.

Any controversy, claim or dispute arising out of or relating in any way to your use of the Website, your account, or purchases through the Website shall be resolved by final and binding arbitration as set forth in this Section.

The arbitration shall take place in the city and county of New York in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.

If you decide to commence arbitration, the provider will require you to pay a filing fee. DAE will reimburse you for this fee if the arbitrator ultimately rules in your favor.

This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.

Subject to the limits on liability herein, the arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.

 

14.         CLASS ACTION WAIVER

Both you and DAE waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.

Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.

 

15.         DISCLAIMERS

YOUR ACCESS TO, USE OF AND RELIANCE ON THE WEBSITE OR ANY WEBSITE CONTENT IS ENTIRELY AT YOUR OWN RISK. DAE (INCLUDING, WITHOUT LIMITATION, THE WEBSITES, PROGRAMS, SERVICES, FORUMS AND CONTENT ACCESSED THROUGH THE WEBSITE, PROGRAMS, SERVICES AND FORUMS) IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.

ALL EXPRESS AND IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) ARE EXPRESSLY DISCLAIMED.

WITHOUT LIMITING THE FOREGOING, DAE ALSO DISCLAIMS ALL WARRANTIES FOR OR WITH RESPECT TO: (a) THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE WEBSITE AND CONTENT ACCESSED THROUGH THE WEBSITE; (b) COMPUTER WORMS, VIRUSES, SPYWARE, ADWARE AND ANY OTHER MALWARE, MALICIOUS CODE OR HARMFUL CONTENT OR COMPONENTS ACCESSED, RECEIVED OR DISSEMINATED THROUGH, RELATED TO OR AS A RESULT OF THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE; (c) ANY TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PROMISED OR EXCHANGED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS OR COMMUNICATIONS THROUGH, RELATED TO OR AS A RESULT OF USE OF THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE (INCLUDING, WITHOUT LIMITATION, ACCESSED THROUGH ANY LINKS ON THE WEBSITE OR IN CONTENT).

THESE DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Some jurisdictions do not allow disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers as to implied warranties may not apply.

 

16.         LIMITATION ON LIABILITY

DAE AND ALL REPRESENTATIVES SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY ACCESS TO, USE OF OR RELIANCE ON THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE BY YOU OR ANYONE ELSE, OR FOR ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS, DISPUTES OR RELATIONS BETWEEN YOU AND ANY OTHER PERSON OR ORGANIZATION ARISING OUT OF OR RELATED TO THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO LIABILITY FOR INJUNCTIVE RELIEF AS WELL AS FOR ANY HARM, INJURY, LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU OR ANYONE ELSE (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF DAE OR THE REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF, BUT IS NOT RESTRICTED TO, WHETHER THE ALLEGED LIABILITY, HARM, INJURY, LOSS OR DAMAGES AROSE FROM AUTHORIZED OR UNAUTHORIZED ACCESS TO OR USE OF THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE; ANY INABILITY TO ACCESS OR USE THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE; OR ANY REMOVAL, DELETION, LIMITATION, MODIFICATION, INTERRUPTION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE.

THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES RESULTING FROM ANY TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PROMISED OR EXCHANGED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS, COMMUNICATIONS OR RELATIONS THROUGH, RELATED TO OR AS A RESULT OF THE WEBSITE OR CONTENT ACCESSED THROUGH THE WEBSITE (INCLUDING, WITHOUT LIMITATION, ANY LINKS ON THE WEBSITE AND LINKS IN CONTENT ACCESSED THROUGH THE WEBSITE).

You hereby release DAE and each of the Representatives, and their respective subsidiaries, affiliates, successors, predecessors, assigns, heirs, service providers and suppliers, from all claims, demands and damages of every kind and nature, known and unknown, direct and indirect, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to the Website or content accessed through the Website, or any interactions with others arising out of or related to the Website or content accessed through the Website, and you expressly waive the provisions of California Civil Code Section 1542 (and any similar laws in other jurisdictions), which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

 

17.         INJUNCTIVE RELIEF

You acknowledge and agree that any violation or breach of these Terms of Use may cause DAE or the Representatives immediate and irreparable harm and damages; consequently, notwithstanding any other provision of these Terms of Use or other applicable legal requirements, DAE and the Representatives have the right to, and may in its discretion, immediately obtain preliminary injunctive relief (including, without limitation, temporary restraining orders) and seek permanent injunctive relief regarding any violation or breach of these Terms of Use. In addition to any and all other remedies available to DAE or the Representatives in law or in equity, DAE and the Representatives may seek specific performance of any term in the Terms of Use, including but not limited to by preliminary or permanent injunction.

 

18.         GENERAL

These Terms of Use, together with our Privacy Policy constitute the entire agreement between you and DAE and governs your use of the Website.   These Terms of Use supersedes any prior version of these Terms of Use between you and DAE with respect to the Website.

The failure of DAE to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver or relinquishment to any extent of DAE’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.

If any provision of these Terms of Use is found to be invalid, the parties nevertheless agree that the remaining provisions shall not be affected thereby and shall continue in full force and effect, and such provision may be modified or severed from these Terms of Use to the extent necessary to make such provision enforceable and consistent with the remainder of these Terms of Use.

You may not assign any of your or our obligations under the Terms of Use without our prior written approval. Any purported assignment in violation of this section shall be void.

We reserve the right to use third party providers in the provision of the Website and/or the goods, services and/or materials associated therewith.

Any and all rights not expressly granted herein are reserved by DAE.