May 30, 2021
These terms and conditions of use (the "Agreement") form a legally binding agreement which govern your access to and use of Ongo Science Inc.’s (“Ongo Science”, "we", "us" or "our") iOS and Android mobile applications (downloadable only on the official Google Play and Apple App Store) (“App”), the Expert’s (as defined below) site(“Site”) and related domains and subdomains with Expert Content, defined below. Collectively the App, Site and related subscription services that offer health, wellness, and similar content and Courses are referred to in this Agreement as the “Service”.
This Agreement also governs your posting and sharing of text, images, audio and any other media that may be viewed by other end users of the Service or users of other social networking platforms through which sharing may be enabled (“Media”). Please read this Agreement carefully, as it (among other things) requires in Section 17 that you and the Company arbitrate certain claims instead of going to court and restricts class action claims.
THIS AGREEMENT HAS PROVISIONS WHICH LIMIT OUR LIABILITY, ALONG WITH THE LIABILITY OF THIRD PARTIES, SUCH AS CONTENT LICENSORS AND IMPOSES OBLIGATIONS ON YOU.
If you are using the Service on behalf of, or in the employ of, an organization (corporation, trust, partnership, etc.), you are agreeing to this Agreement for that organization and representing and warranting that you have the authority to bind that organization to this Agreement. In such a case, "you" and "your" will also refer to that organization and yourself individually. For greater clarity, both you as an individual and your organization are legally bound by this Agreement, which forms an agreement with Ongo Science.
Some of the content displayed on the Service (and other websites associated with the Service) are owned by and licensed to us by the App Expert (the “Licensor”). To the extent this Agreement confers any rights, including rights in respect of the limitation of liability upon the Licensor, or any other third party, you agree that they, and each of their affiliated or related entities, are third party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, each of them will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. However, such third parties shall not be deemed to have accepted, nor shall they be bound by any arbitration clause herein. For purposes of this Agreement, the App Expert shall be the company and/or individual providing services and content through the App.
Note for Children. Use of the Service by anyone under the age of 18 is prohibited. By using the Service, you represent and warrant that you are at least 18 years of age.
2. License to Use the App. If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
3. Ownership; Proprietary Rights. As between you and the Company, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to your Media, subject to the licenses granted to the Company and other end users of the Service herein. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the software and technology used by the Company to provide the Service features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. If you provide Company with any ideas, feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Company all right, title and interest in and to such Feedback and acknowledge that Company shall have the right to exploit such Feedback and related information in any manner it deems appropriate on a worldwide, perpetual basis without payment of any compensation to you.
Other content displayed on the Service is owned by and licensed to us by the Licensor. You agree that you are not authorized to copy, record, translate, republish, sub-license, create derivative works from, or commercialize, in any manner, the Licensor’s content. Nor are you authorized to record or share recordings of any live Sessions, as defined and further set out below.
4.1 By using the Service and providing a current, valid, accepted method of payment, as may be updated from time to time (the “Payment Method”), you agree that the Company may charge the Payment Method for your subscription at the then-current subscription rate (including any taxes, including local sales tax or VAT, and late fees, as applicable). If you do not provide a Payment Method, you may not use the Service. To the extent you are late in making any payment, the Company reserves the right to charge you interest at the lesser of a rate of 1.5% per month or the highest rate permitted by law on all late payments hereunder. Upon your request, the Company may, in its sole discretion from time to time, refund your payments in exceptional circumstances; provided, however, that the Company shall not be obligated to grant you a refund in any event. YOU AGREE THAT YOUR PAYMENT METHOD WILL AUTOMATICALLY BE CHARGED BY THE COMPANY (THROUGH ITS PAYMENT CARD PROCESSING SERVICE PROVIDER) EACH MONTH UNTIL YOU CANCEL YOUR SUBSCRIPTION.
4.2 The Company automatically bills your Payment Method on the calendar day corresponding to the commencement of your subscription and each month thereafter. As used in this Section 4.2, “bill” or “billing” shall indicate a charge, debit or payment clearance, as applicable, against your Payment Method. The Company will not send you a monthly or annual statement. Receipts for recurring charges can be viewed and printed from your user account. If you revoke authorization to charge your Payment Method, or if for any reason your payment card issuer does not submit payment, the Company will cancel your subscription to the Service.
4.3 The Company may make coupon codes available from time to time at its own discretion. Coupon codes have no cash value and cannot be redeemable for cash. The unauthorized reproduction, resale, modification or trade of coupon codes is prohibited. Coupon codes are void where prohibited, taxed or restricted. The Company reserves the right to change or limit coupon codes in its sole discretion.
4.4 From time to time, at the Company’s discretion, the Company may offer free trials to the Service. YOU WILL BE AUTOMATICALLY ENROLLED IN (AND CHARGED FOR) THE SUBSCRIPTION PLAN YOU SELECTED FOLLOWING THE END OF ANY SUCH FREE TRIAL PERIOD. YOU MUST CANCEL PRIOR TO THE END OF YOUR FREE TRIAL IN THE MANNER SPECIFIED BELOW TO AVOID BEING CHARGED.
4.5 IF YOU PURCHASED YOUR SUBSCRIPTION DIRECTLY THROUGH AN ONGO PAYMENT SYSTEM, YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US AT email@example.com. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION MONTH. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION MONTH, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST 5 DAYS PRIOR TO THAT MONTH, OR YOU WILL OTHERWISE BE CHARGED FOR THAT MONTH’S SUBSCRIPTION. ALL CANCELATION REQUESTS RECEIVED LESS THAN 5 DAYS BEFORE THE FOLLOWING SUBSCRIPTION MONTH WILL APPLY TO THE FOLLOWING CYCLE.
4.6 IF YOU PURCHASED YOUR SUBSCRIPTION THROUGH THE APPLE INC. APP STORE, YOU MAY CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH APPLE INC. POLICIES AND PROCEDURES. THESE PROCEDURES MAY BE FOUND THROUGH APPLE INC. SUPPORT (https://support.apple.com/en-us/HT202039).
4.7 IF YOU PURHCASED YOUR SUBSCRIPTION THROUGH THE GOOGLE PLAY STORE, YOU MAY CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH GOOGLE POLICIES AND PROCEDURES. THESE PROCEDURES MAY BE FOUND THROUGH GOOGLE SUPPORT (https://support.google.com/googleplay/answer/7018481).
5.1 The Service allows you and other users to post and share Media through the Service and such other channels as may be enabled by the Company, including without limitation, social networking websites. You understand that all Media is available only on an “as-available” basis and the Company does not guarantee that the availability of Media will be uninterrupted or bug free. You agree you are responsible for all of your Media and all activities that occur under your user account. Some or all of your Media may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your Media may be removed if the Company determines (in its sole discretion) that its content is inappropriate or if it is the subject of flagging by other Service users.
5.2 You shall retain all of your ownership rights in your Media. You hereby grant the Company a worldwide, nonexclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit, prepare derivative works of, distribute and perform your Media for purposes of operating the Service and the Company’s (and its successor’s) business, in any media formats and through any media channels. Media you submit to Third-Party Services (as defined in Section 11) through the Service is subject to the terms and conditions applicable Third-Party Service.
5.3 In connection with your Media (including the Sessions, as defined below), you further agree that you will not use, create, provide or post: (i) material that is subject to third-party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any Media does not conform to this Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined at https://api.ongo.app/dmca to notify the Company’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that the Company remove such content.
5.4 You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the Media posted by the end users of the Service and does not have any obligation to monitor such content for any purpose. Neither we, nor our Licensor make any representations or warranties as to the accuracy or reliability of any such Media, or third party websites that may be linked to on our Service or from such Media.
6. Courses. The Service may allow you to sign up for courses or other subscription based or paid content (each a “Course”). The Course is made available to us via a license from the Licensor, their subcontractors, their own licensors and others (the “Experts”). You agree to only engage in the Courses for your personal, non-commercial purposes and agree not to record, copy, redistribute, broadcast, publicly perform or publicly display any such Course, except as allowed by this Agreement or by the Licensor. Except as otherwise granted permission by the Company, to the extent you are provided any materials are part of your participation in the Course, you are only granted access to such materials for your own personal use and you agree not to use them for commercial purposes and/or share them with others in any form. You acknowledge that the Company has no duty to screen the Experts or the Courses and has no duty to verify any state credentials, experience or qualifications of any Expert or to ensure that the Expert does not subject you to inappropriate content. You also acknowledge that all Experts are independent contracting parties offering their content via our Service and are not employees or agents of the Company. The Company makes no representation or warranty regarding the results of engaging in a Course or engaging with an Expert, including without limitation that your experience with a Course or with an Expert will meet your expectation or goals. Company does not endorse any opinion, recommendation, or advice expressed by Experts or other students, and Company expressly disclaims any and all liability in connection with such opinions, recommendations or advice. Nothing on the Service, including the Course, is meant to substitute for any medical advice provided by your physician and you should not use the information contained herein for preventing, diagnosing or treating a health problem, injury or diseases. If you have or suspect that you have a medical problem, promptly contact your physician. You should also consult your physician before making any dietary changes or starting any nutritional or physical exercise program. If you wish to register a complaint against any Expert or with respect to any Course, please contact the Company at firstname.lastname@example.org.
7. Video Sessions.
7.1 Currently, the Service does not enable the provision of Courses through individual or group video chat sessions (each, a “Session”). If the Company decides, in its sole discretion, to enable the provision of Courses, training or consultations through Sessions, the terms of this Agreement and this Section 7 shall apply. Engaging in a Session requires compatible hardware and may require you to download and install specific software. You are solely responsible for acquiring and installing any such hardware and software and for determining compatibility with your system. Neither we nor our Experts make any representations or warranties in respect of such third party software, which you access and use at your own risk.
8. Prohibited Uses. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that the Company reserves the right to disable any user account with a profile which the Company reasonably believes is false or misleading (including a profile that impersonates a third party) or which otherwise does not comply with this Agreement. By using the Service, you represent and warrant that: (i) you are not located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
9. Third-Party Sites. The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party sites and services, products or services made available through them, or your use of or interaction with them.
10. Mobile Services. Using the Service on a mobile device requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.
11. Third-Party Services. The Service may include features or functionality that interoperate with online services operated by third parties such as Facebook and Twitter (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Service in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.
12. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account through the Service user interface. Deletion of your Service account may not result in the deletion of Media you have posted on Third-Party Services through use of the Service. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your use of the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third party for any such termination. Sections 3–23 will survive any termination of this Agreement. For greater certainty, and without limiting the foregoing, all provisions of this Agreement which restrict or limit our liability or the liability of our Licensor or any other third party, shall remain binding even upon the termination of this Agreement.
13. Apple and the Licensor. You hereby acknowledge and agree that both Apple, Inc. and the Licensor.: (i) are not a party to this Agreement; (ii) have no obligations whatsoever to furnish any maintenance or support services with respect to the App; (iii) are not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) have no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) are a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
14. Disclaimers; No Warranties. THE SERVICE AND ANY MEDIA, INFORMATION, COURSES, SESSIONS OR OTHER MATERIALS OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO ALL EXPERTS, WHICH TERM, FOR THE PURPOSE OF THIS SECTION INCLUDES THE LICENSOR, AS BOTH AN ENTITY AND AN INDIVIDUAL, IF APPLICABLE), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
UNLESS EXPRESSLY STATED OTHERWISE ON THE SERVICE: (I) ANY INDIVIDUAL DISPLAYED ON OR IN CONNECTION WITH OUR SERVICE OR WHICH IS FEATURED IN SESSIONS OR MEDIA, IS NOT A DOCTOR, REGISTERED DIETICIAN, PHYSIOTHERAPIST, CHIROPRACTOR OR OTHER REGULATED PROFESSIONAL; AND (II) NONE OF OUR SERVICES, MEDIA, CONTENT, SESSIONS (WHETHER PERFORMED BY US OR A THIRD PARTY) OR ANY INFORMATION FROM US OR OUR A THIRD PARTY, ARE PROVIDED AS, NOR ARE THEY INTENDED TO BE, PROFESSIONAL NUTRITION, CHIROPRACTIC, PHYSIO OR MEDICAL ADVICE.
PRIOR TO UNDERTAKING ANY COACHING SESSIONS, ACTING ON ANY RECOMMENDATIONS PROVIDED TO YOU OR ENGAGING IN PHYSICAL ACTIVITY, YOU SHOULD SEEK PROFESSIONAL ADVICE (WHETHER MEDICAL, NUTRITIONAL, CHIROPRACTIC, PHYSIO OR OTHER ADVICE, AS APPLICABLE) TO ENSURE ANY WORKOUT ROUTINES, FOOD, VITAMINS OR OTHER SUBSTANCES ARE SUITABLE FOR YOU, TAKING INTO CONSIDERATION ANY MEDICAL CONDITIONS, INJURIES OR FOOD ALLERGIES YOU MAY HAVE. YOU SHOULD SEEK PROFESSIONAL MEDICAL ADVICE IF YOU (OR A FAMILY MEMBER) HAS A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING OR HAVE ANY DISEASE, CONDITION OR INJURY THAT MAY BE IMPACTED BY PHYSICAL ACTIVITY OR A CHANGE IN DIET.
WITHOUT LIMITING ANY OTHER SECTION OF THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT LICENSOR, AND ITS DIRECTORS, OFFICERS, CONTRACTORS, LICENSORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, LOSSES, DEATH OR PERSONAL INJURY YOU SUFFER, HOWSOEVER CAUSED, WHETHER ARISING FROM NEGLIGENT ACTS OR OMISSIONS, OR OTHERWISE AND REGARDLESS OF WHETHER WE OR THEY WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, DEATH OR INJURY.
Do not begin or subscribe to any exercise program on our Service without consulting your doctor if you smoke, have high cholesterol, are obese, or have a bone or joint problem that could be made worse by a change in physical activity. Do not start any fitness program if your physician or health care provider advises against it. If you experience faintness, dizziness, pain or shortness of breath at any time while exercising you should stop immediately. Nothing stated or provided by the Service, Ongo, Licensor or any Experts is intended to be and must not be taken to be medical or professional advice.
The Service and the Experts provide exercise, wellness and nutritional information and is designed for educational purposes only. You should not rely on this information as a substitute for, nor does it replace, professional medical or mental health advice, diagnosis, or treatment. If you have any concerns or questions, you should always consult with your doctor or another health-care professional. Do not ignore, avoid or delay obtaining medical or health related advice from your health-care professional.
Developments in medical research may impact the health, mental health, fitness and nutritional information provided by any Experts. No assurance can be given that the information provided by any Experts will always the most recent information on any given topic or the most recent developments with respect to the particular material.
If you are in the United States and think you are having a medical or health emergency, call your health care professional, or 911, immediately.
15. Indemnification; Hold Harmless. You agree to indemnify and hold the Company and the Licensor and their respective affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s or the Licensor’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
16. Limitation of Liability and Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, LICENSORS (INCLUDING BUT NOT LIMITED TO THE LICENSOR) AND PARTNERS (INCLUDING BUT NOT LIMITED TO ALL EXPERTS, WHICH TERM, FOR THE PURPOSE OF THIS SECTION, INCLUDES THE LICENSOR, AS AN ENTITY OR AS AN INDIVIDUAL, IF APPLICABLE), OR THIRD-PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, LICENSOR, OR OTHER INDIVIDUALS ON THE SERVICE, EVEN IF SAID ENTITIES OR INDIVIDUALS OR THEIR AUTHORIZED REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
WITHOUT LIMITING THE GENERALITY OF THE PREVIOUS PARAGRAPH OR ANY OTHER SECTION OF THIS AGREEMENT, IN NO EVENT SHALL THE COMPANY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, LICENSORS, OR OTHER INDIVIDUALS ON THE SERVICE OR THIRD-PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES AND CAUSES OF ACTION (HOWSOEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE, OR RELIANCE UPON EXPERTS OR THEIR CONTENT OR STATEMENTS EXCEED FIFTY U.S. DOLLARS (USD $50).
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE LIABILITY OF THE ABOVE LISTED ENTITIES AND INDIVIDUALS WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
YOU AGREE THAT THE ABOVE LIMITATIONS ON LIABILITY FORM AN ESSENTIAL PART OF THIS AGREEMENT AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT, NOR WOULD THE LICENSOR ALLOW ACCESS TO THEIR CONTENT, WITHOUT SUCH LIMITATIONS ON LIABILITY.
17.1 Agreement to Arbitrate. This Section 17 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
17.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
17.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
17.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
17.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Service, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
17.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
17.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
17.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 17.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 17.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
18. Claims. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
19. Changes to Agreement. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective immediately upon notice of such Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise, your continued use of the Service will service as your acceptance of any Changes to this Agreement.
20. Electronic Communications. When you communicate with the Company through the Service or send us e-mail, you are communicating with us electronically. You hereby: (i) consent to receive communications from Company and the Licensor in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.
21. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 17 shall be filed only in the state or federal courts in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision (or part of a provision) of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision (or part thereof) shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
22. Contact Information. The Service is provided by Ongo Science Inc. If you have any questions, complaints or claims with respect to the Service, you may contact Ongo Science at email@example.com.
23. California Residents. Company is located at 185 Clara Street St. Suite 102A, San Francisco, CA 94107. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.