The following Terms and Conditions govern your use and access to the FitSid.com (“FitSid”) of websites (such sites are collectively referred to herein as the “Sites” and each individually a “Site”).
IMPORTANT! These Terms and Conditions also govern your membership to a Site (or Sites) if you become a member. By accessing, using, printing, installing, or downloading any material from any of the Sites, or becoming a member to any one of the Sites, you agree to be bound by these Terms and Conditions. These Terms and Conditions are subject to change by the Sites at any time in its discretion. Your use of this Site after such changes are implemented constitutes your acknowledgment and acceptance of the changes. If you do not agree to be bound by these Terms and Conditions, you may not enter any of the Sites, you must exit the Site immediately and you may not use or access any of the Sites and you may not print, download, replicate, or share any materials from them. You may use and access the Sites only in accordance with these Terms and Conditions. Please consult these Terms and Conditions regularly and read them carefully before using the Sites. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.
You are solely responsible for obtaining access to the Sites and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Sites.
I. Adult Entertainment
The Sites offer online entertainment services that may be deemed adult in nature and which may contain graphic depictions, nudity, adult language, and descriptions of explicit sexual activity. You acknowledge that you are aware of the nature of the content provided by these Sites, that you are not offended by such content and that you access the Sites freely, voluntarily and willingly.
II. Age of Majority
You represent and warrant you are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher (the “Age of Majority”), and that you have the legal capacity to enter into this agreement. If you have not attained the Age of Majority, you must exit the Sites immediately and may not use or access all or any part of the Sites for for any reason nor may you print, download, or otherwise share any materials or purchase any materials (as defined below) from the Sites.
III. No Child Pornography
You understand that all models appearing on the Sites are, and were at the time of all recorded images, at least 18 years of age, and that the Sites contain no child pornography. We take a strong and definite stand against child pornography and only publish images of consenting adults for consenting adults. If you believe that you see any images, real or simulated, depicting minors engaged in sexual activity within the Sites, please report to email@example.com. Include with your report any appropriate evidence, including the date and time. All reports will immediately be investigated, and the appropriate action will be taken. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If you suspect other outside websites are participating in unlawful activities involving minors, please report them to www.asacp.org.
IV. Protected Speech
You further acknowledge that the Sites contain only images protected by the First Amendment to the United States Constitution. If you are seeking obscenity or child pornography, please leave this Site immediately.
V. Trademark Information
The names of the Sites are the trademarks of FitSid (collectively, the “FitSid Marks”). All rights are reserved. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners. The FitSid Marks may not be used except with express written permission from FitSid and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits FitSid.
VI. Intellectual Property Rights
The material and content accessible on the Sites, and any other World Wide Web site owned, operated, licensed, and/or controlled by FitSid (collectively, “Materials”) are the proprietary information and valuable intellectual property of FitSid or the party that provided the Materials to FitSid (collectively, the “Materials Owner”), and the Materials Owner retains all right, title, and interest in the Materials. Accordingly, the Materials may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without the prior written consent of FitSid, except that you may print out a copy of the Materials solely for your personal use. You may not for any reason, at any time remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials. Modification or use of all or any portion of the Materials except as expressly provided in these Terms and Conditions violates FitSid’s intellectual property rights and may result in legal action against you for damages, including, without limitation, statutory damages. Neither title nor intellectual property rights are transferred to you by virtue of your access to the Sites. All content included on the Sites, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of FitSid or its content suppliers and is protected by United States and international copyright laws and other intellectual property laws. The compilation of content on each Site is the exclusive property of FitSid or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations.
VII. Access to Sites, License to View Materials
To access the Sites or some of the resources they have to offer, you may be asked to provide certain registration details or other information. It is a condition of your use of these Sites that all information you provide will be correct, current, and complete. If FitSid believes the information you provide is not correct, current, or complete, FitSid has the right to refuse you access to these Sites and/or any of its resources, and to terminate or suspend your access at any time. Subject to these Terms and Conditions and in consideration of your becoming a member to a Site, FitSid hereby grants you a limited, nonexclusive, nontransferable personal license to access the Sites and the Materials contained therein. Subject to Section IX (F), provided that you are a member in good standing to a Site, you may cache the Materials onto a single computer for your personal, non-commercial internal use only. All Materials on the Sites shall be for private use only, and all other uses are strictly prohibited. You agree to prevent unauthorized access to the Sites and copying of any of the Sites, and/or any of the Materials contained therein. If the membership only portion of any Site is accessed by anyone other than an accountholder, FitSid may terminate your membership to all or any of the Sites. Any unauthorized use of a Site and/or any of the Materials terminates this limited license effective immediately. This license granted herein is specific to you and such license is in no way a transfer of title. Violators of this limited license may be prosecuted to the fullest extent under law.
VIII. Restrictions on Use of Sites
You may only use the Sites for purposes expressly permitted by the Sites. You may not use the Sites for any other purpose, including, without limitation, any commercial purpose or on any third-party website, without FitSid’ express prior written consent. You acknowledge and agree that, without the express prior written authorization of FitSid, you may not and will not: (a) duplicate, take screenshots of, or screenrecord a Site or any of the Materials contained therein (except as expressly provided above in Section VII); (b) create derivative works based on a Site or any of the Materials contained therein; (c) use the Sites or any of the Materials contained therein for any commercial purpose, or for any public display, public performance, sale or rental or other form of distribution whether for a fee or otherwise; (d) distribute or otherwise share the Sites or any of the Materials contained therein; (e) remove any copyright or other proprietary notices from the Site or any of the Materials contained therein; (f) frame or utilize any framing techniques in connection with the Sites or any of the Materials contained therein; (g) use any meta-tags or any other “hidden text” using FitSid’ name or marks; (h) “deep-link” to any page of any of the Sites (including the homepage); (i) circumvent any encryption or other security tools used anywhere on the Sites (including the theft of user names and passwords or using another person’s user name and password in order to gain access to any restricted area of any of the Sites); (j) use any data mining, robots or similar data gathering and extraction tools on any or all of the Sites; (k) decompile, reverse engineer, modify or disassemble any of the software aspect of the Sites or Materials except and only to the extent required by applicable law; (l) sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of your rights to access and use the Materials as granted in Section VII above; or (m) bookmark any page of any Site beyond the membership log-in screen. You agree to cooperate with FitSid in causing any unauthorized use to cease immediately. At any time, if the Sites provide a service enabling users to share information or communicate with other users, you hereby agree not to publish, disseminate or submit any defamatory, offensive or illegal material while using the Sites or other services included on the Sites. You are solely responsible for submitting any material that violates any United States or International laws or third party right even if a claim arises after your service is terminated, and, by doing so, your actions shall constitute a material breach of this Agreement and the Sites shall terminate all your rights under this Agreement. If users are allowed to share information and communicate with other users, you agree that all materials you submit will be accessible to other users and will not be secure or private. You hereby agree that you have been noticed that all communications submitted to the Sites can be accessed by agents, operators, and other users, regardless if they are the intended recipients of the messages.
You are responsible for providing all equipment and the computer necessary to access the Sites. You may access the non-public portion of any Site only by being a member in good standing to that Site. You may become a member of a Site by completing an online registration form. Upon submission of the online registration form, FitSid or its authorized agent will process the application. In connection with completing the online registration form, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a member. You must promptly inform FitSid of all changes, including, but not limited to, changes in your address and changes in your credit card used in connection with billing for the Sites. If you provide any information that is untrue, inaccurate, not current or incomplete, or FitSid or any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FitSid has the right to suspend or terminate your account and refuse any and all current or future use of the Site or Sites.
B. Member Account, Password and Security
As part of the registration process, you will select a unique user name and password which you must provide in order to gain access to the non-public portion of a Site. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to any Site to anyone who is below the age of majority in your state. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities that occur under your user name and password. FitSid will not release your password for security reasons. You agree to (a) immediately notify FitSid of any unauthorized use of your user name and password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You are liable and responsible for any unauthorized use of the Sites under your account until you notify FitSid by email regarding such unauthorized use. Unauthorized access to the Sites is illegal and a breach of this Agreement. You may obtain access to your billing records regarding charges of your use of the Sites upon request as required by law. You may be first required to provide information sufficient to confirm the applicable account belongs to you.
You agree to pay all membership fees when due according to the billing terms. FitSid posts the current membership fees for each Site as part of the registration process. FitSid reserves the right to change any Site’s membership fees at any time, with or without prior notice to you. At the time of registration, you must select a payment method. FitSid reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your account will be deemed past due if it is not paid in full by the payment due date. If your account becomes past due, you agree to pay interest on the past due amount at a monthly rate of 1.5%, or the highest amount allowed by law, whichever is lower, compounded daily, plus any additional collection costs, credits, charge backs and attorney’s fees. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a card holder. You are responsible for reimbursing FitSid for all credit card charge backs, dishonored checks and any related charges. You authorize FitSid and its agents to make payments for the services provided to you through the Sites by automatic check debit and credit card on your behalf. You hereby agree not to falsely report the credit card or check card lost or stolen, without good reason that it is lost or stolen, that you have used for payment of FitSid’ goods or services, including subscriptions. Such fraudulent reporting to avoid payment for goods or services that you or anyone under your authority has made to FitSid or the Sites when you have an outstanding charge to FitSid shall make you liable to FitSid for $25,000 in liquidated damages. This liability for liquidated damages is in addition to any other liability you may incur for breaches of any other Terms and Conditions in this Agreement.
D. Billing Errors
If you believe that you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer.
E. Refund Policy
FitSid does not provide cash refunds. We do, however, grant credits in the form of free monthly memberships to resolve customer service issues. The billing system used by FitSid or our authorized agents provides extensive credit card fraud protection measures and our Sites include many features to protect users from accidental charges. Therefore, refunds to your credit card will be provided only under the rarest of circumstances such as persistent technical problems originating with our equipment.
F. Download Limit
We reserve the right to restrict the amount of Materials which may be downloaded by your account at any time.
You may cancel your membership at any time through the third party who is processing your fees. Links to these third party processors are located in the customer service area within the non-public portion of the website. Otherwise you may cancel your membership by providing: (a) our customer service department with a notice of your intent to cancel the membership at least 48 hours before the renewal date along with your user name and password; and (b) any outstanding fees owed for your membership. You hereby agree to be personally liable for any and all charges made by you for goods or services through your use of the Sites. This Agreement’s provisions shall survive its termination, unless otherwise stated. Upon our processing of your request to cancel your membership, you will no longer have access to the non-public areas of the Site or Sites to which you were a member.
FitSid may terminate your access to a Site at any time, with or without advance notice, if: (a) FitSid believes that you have breached any material term of these Terms and Conditions, (b) if you fail to pay any amount due by the payment due date; or (c) FitSid decides to cease operations or to otherwise discontinue any of the Sites. Further, you agree that neither FitSid nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to any of the Sites. You agree that if your account is terminated by FitSid, you will not attempt to re-register as a member without prior written consent from FitSid.
XI. Disclaimer of Warranty
YOU EXPRESSLY AGREE THAT USE OF THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN IS AT YOUR OWN AND SOLE RISK. THE SITES AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. FITSID MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITES OR ANY MATERIALS CONTAINED THEREIN WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FITSID MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN. YOU ALSO UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YOU UNDERSTAND THAT FITSID CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. FITSID DOES NOT ASSUME ANY RESPONSIBILITY OR RISK FOR YOUR USE OF THE INTERNET. FITSID MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITES OR ANY TRANSACTION ENTERED INTO THROUGH THE SITES AND IS NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY SELLERS OR THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
XII. Limitation of Liability
IN NO EVENT SHALL FITSID (OR ITS LICENSORS, AGENTS, SUPPLIERS, RESELLERS, SERVICE PROVIDERS, OR ANY OTHER SUBSCRIBERS OR SUPPLIERS) BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, OR GOODWILL, WHICH MAY ARISE FROM ANY PERSON’S USE, MISUSE, OR INABILITY TO USE THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN, EVEN IF FITSID HAS BEEN ADVISED OF THE PROBABILITY OF SUCH DAMAGES. THIS IS FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF FITSID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FITSID’S MAXIMUM TOTAL AGGREGATE LIABILITY HEREUNDER FOR DIRECT DAMAGES EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR USE OF A SITE OR SITES FOR A PERIOD OF NO MORE THAN ONE (1) MONTH FROM THE ACCRUAL OF THE APPLICABLE CAUSE OR CAUSES OF ACTION. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold harmless FitSid, its officers, directors, shareholders, employees, independent contractors and agents, from and against any and all claims, actions, liabilities, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your, or you under another person’s authority including without limitation to use, misuse, or inability to use the Sites or any of the Materials contained therein, or your breach of any of these Terms and Conditions. FitSid shall promptly notify you by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. FitSid may participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but is not obligated to do so.
Some web sites which are linked to the Sites are owned and operated by third parties. Because FitSid has no control over such sites and resources, you acknowledge and agree that FitSid is not responsible for the availability of such external sites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such sites or resources. You further acknowledge and agree that FitSid shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such site or resource. If you decide to access any such third-party sites, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.
XV. Notice of Claimed Infringement
FitSid respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide FitSid’ Copyright Agent the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on a Site;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may send your Notice of Claimed Infringement to:
Please send only notices of claimed infringement to our Designated Agent. Do not sent other inquires or information to our Designated Agent.
XVI. Notice and Takedown Procedures
FitSid reserves the right at any time to implement a “notice and takedown” procedure upon receipt of any notification of claimed infringement. FitSid reserves the right at any time to disable access to, or remove, any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
XVII. Export Control
You understand and acknowledge that the software elements of the Materials on the Sites may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to U.S. law is prohibited. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations. You agree that none of the Materials is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
XVIII. Force Majeure
FitSid shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay FitSid’ performance.
XVIII. General Provisions
A. Governing Law
These Terms and Conditions and all matters arising out of or otherwise relating to these Terms and Conditions shall be governed by the laws of the State of Arizona, excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Arizona. Exclusive venue for any litigation or arbitration permitted under this Agreement shall be with the state and federal courts located in Maricopa County, Arizona.
B. Rights to Injunctive Relief
Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
All Disputes (including any dispute relating to the arbitrability of this Agreement or any provision of this Agreement or any other dispute relating to arbitration) which cannot be amicably settled by the parties, must be submitted to arbitration before and in accordance with the arbitration rules of the American Arbitration Association (AAA) in accordance with its commercial arbitration rules then in effect, modified as set forth in this section. The term “Dispute” means any controversy or claim arising out of or relating to the Site or the Services or this Agreement, or any breach thereof, including any claim that this Agreement, or any part of this Agreement is invalid, illegal or otherwise voidable or void.
The dispute shall be submitted to and a decision rendered by a single arbitrator who is (a) agreeable to both parties, or (b) if agreement cannot be reached within 21 days of initiation of the proceedings, chosen pursuant to AAA rules. All proceedings and correspondence shall be conducted in the English language. A reasonable period shall be allowed for discovery, limited as to scope, nature, period, response time, as may be agreed upon by the parties. Within thirty (30) days of the close of the discovery period or such other time period as agreed to by the parties and arbitrator, the arbitrator shall hold an oral hearing in Phoenix Arizona, or such other place agreed to by the parties. The Arbitrator shall order that the parties submit to the Arbitrator, at least 10 days prior to the oral hearing a joint prehearing statement containing: a brief statement of the nature of the claims and defenses; any stipulated facts; a list of exhibits, and any objections to the admissibility of any such exhibit; the identity of each witness who provide testimony and whether the testimony will be oral or by written submission, as well as the subject matter of that witnesses’ testimony, its content, and its relevance to the issues in the arbitration; and an estimate as to the length of time that will be required for the arbitration hearing. No witness or exhibit shall be used at the oral hearing other than those listed in the prehearing statement and exchanged, except for good cause shown or upon written agreement of the parties. No objection to an exhibit shall be entertained unless stated in the prehearing statement and exchanged, except for good cause shown or upon written agreement of the parties. Each party shall have the right to cross-examine any witness called by the other party (oral or written submission). The Arbitrator shall compel attendance of each such witness for cross-examination at the hearing, unless otherwise agreed by the party. Either party and/or the arbitrator can by written notice at least five (5) working days in advance of the hearing require attendance at the hearing of any individual having personal knowledge of facts pertinent to the dispute. The hearing shall in general, be governed by the U.S. Federal Rules of Civil Procedure and Federal Rules of Evidence, except that the signed written statements submitted by the parties shall be used in lieu of direct testimony. Unless agreed upon by the parties and the arbitrator, the arbitrator shall immediately upon the end of the hearing consider the evidence and shall work continuously and exclusively on the matter until a decision is rendered. However, the arbitrator may reconvene the hearing for further questioning of individuals if deemed necessary. The Arbitrator shall have the power to award any remedy provided under the applicable laws. At the request of any party, a written arbitration order and/or award shall be issued, judgment on which may be entered in any Court of competent jurisdiction. Any time period may be shortened or extended by agreement of the parties. In the event that these modifications are in conflict with the rules then in effect of the AAA, these modifications shall take precedence.
The provisions of this Arbitration Section must be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction or arbitrator determines that any such provisions are unlawful in any way, such court or arbitrator is to modify or interpret such provisions to the minimum extent necessary to have them comply with the law. Notwithstanding any provision of this Agreement relating to under which state’s laws this Agreement is to be governed by and construed under, all issues relating to arbitrability or the enforcement of the Agreement to arbitrate contained herein are to be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the federal common law of arbitration.
Judgment upon an arbitration award may be entered in any court having competent jurisdiction and will be binding, final and non-appealable. You and FitSid hereby waive to the fullest extent permitted by law, any right to or claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between them, each shall be limited to the recovery of any actual damages sustained by it.
This arbitration provision is self-executing and will remain in full force and effect after the expiration or termination of this Agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear.
Arbitration take place in Maricopa County, Arizona, exclusively. You and FitSid hereby agree that no action (whether for arbitration, damages, injunctive, equitable or other relief, including rescission) will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, or any other Dispute, unless brought before the expiration of the earlier of one year from the occurrence of the facts giving rise to such claims or within 90 days from either the actual discovery of the facts giving rise to such claims or from the date on which the party should have, in the exercise of reasonable diligence, discovered such facts.
The obligation to arbitrate is not binding upon FitSid with respect to claims relating to its trademarks, service marks, patents, copyrights, or other intellectual- property rights, or requests for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.
The prevailing party will be entitled to receive from the non-prevailing party its costs relating to the arbitration proceeding including but not limited to, the arbitrator’s fees, attorneys’ fees and costs, witness fees, transcription fees, etc. and sales and use taxes thereon, if any.
You and FitSid each acknowledges and agrees that it is the intent of the parties that arbitration and litigation between the parties will be of the parties’ individual claims, and that none of their respective claims may be arbitrated or litigated on a class-wide basis.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither these Terms and Conditions nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of these Terms and Conditions will continue in full force and effect.
F. Attorney’s Fees
In the event of any litigation arising out of this agreement, the prevailing party shall be entitled to attorney’s fees, including attorney’s fees incurred on appeal.
G. No Waiver
No waiver of FitSid shall be deemed a waiver of any subsequent default of the same provision of these Terms and Conditions. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from these Terms and Conditions.
All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these Terms and Conditions.
I. Complete Agreement
These Terms and Conditions constitute the entire agreement between the parties with respect to your access and use of any of the Sites and the Materials contained therein, and your membership with any of the Sites, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter (except, to the extent applicable, any Download Agreement or similar contract governing the parties’ rights and responsibilities in connection with any specific Materials downloadable from a Site). No amendment to or modification of these Terms and Conditions will be binding unless in writing and signed by a duly authorized representative of both parties.
FitSid reserves the right to change any of the provisions posted herein and you agree to review these Terms and Conditions each time you visit a Site. In the event of a change to these Terms that substantially limits your rights hereunder, FitSid will provide you with written notice prior to such changes taking effect. Your continued use of a Site following FitSid’ posting of any changes to these Terms and Conditions constitutes your acceptance to such changes. Unless accepted by FitSid in writing, these Terms and Conditions may not be amended by you.
K. Government Rights
The software elements of the Materials have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
L. Other Jurisdictions
FitSid makes no representation that the Sites or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Sites from such locations do so on their own initiative and are solely responsible for compliance with all applicable local laws.