Terms and Conditions

13. Entire Agreement

YOU AND WE EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND US OR THE CONTENT OR THE SITE, OR ANY OTHER PRODUCTS, SERVICES OR ADVERTISING BY FITDAILY, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS AGREEMENT (COLLECTIVELY, “DISPUTES”), THAT IS NOT RESOLVED BY AN INFORMAL DISPUTE RESOLUTION CONFERENCE (AS DEFINED AND DESCRIBED BELOW), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY NAM’S COMPREHENSIVE DISPUTE RESOLUTION RULES AND PROCEDURES AND, WHERE APPLICABLE, BY THE NAM SUPPLEMENTAL RULES FOR MASS ARBITRATION FILINGS (TOGETHER, THE “RULES AND PROCEDURES”). YOU AND FITDAILY ACKNOWLEDGE THAT WE ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR AND OUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN. FOR PURPOSES OF THIS ARBITRATION AGREEMENT, “DISPUTE” WILL ALSO INCLUDE DISPUTES THAT AROSE OR INVOLVE FACTS OCCURRING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THE TERMS AND CONDITIONS AS WELL AS CLAIMS THAT MAY ARISE AFTER THE TERMINATION OF THESE TERMS AND CONDITIONS.

In the event a Dispute arises between us, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@fitdaily.com or regular mail to our offices located at 25531 Commercentre Dr. Ste 250, Lake Forest, California 92630. The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) a description of your Dispute. To be valid, you must personally sign the Notice. If you have counsel (either a law firm or group of law firms or organizations) who additionally represents any other users who either have already provided a Notice to FitDaily within the last ninety (90) days or intend to provide a Notice within the next ninety (90) days for a Dispute of a substantially similar nature, you or your counsel must include with your Notice a list of all such individuals your counsel represents. 

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar Disputes, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process.

If you and we are unable to resolve a Dispute within thirty (30) days after the applicable Informal Dispute Resolution Conference, either party may commence arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.

Before you commence an arbitration under this Arbitration Agreement, you must provide us with a written request for arbitration (the “Request”) that includes: (i) your name; (ii) residence address; (iii) username (if applicable) and email address associated with your User account (if applicable); (iv) a detailed description of the Dispute, including the relief you seek; and (v) a statement certifying completion of the Informal Dispute Resolution Conference, as described above. Before we commence arbitration of a Dispute against you, we will provide a written Request to you with a detailed description of the Dispute and the relief we seek and certification of completion of the Informal Dispute Resolution Conference. Any Request you send to us should be mailed to FitDaily at 25531 Commercentre Dr. Ste 250, Lake Forest, California 92630.

Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA fee schedules (the “Fee Schedules”) in place at the time the arbitration demand is filed. To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that the party who commenced arbitration did not bring its claim(s) consistent with the standards set forth in Federal Rule of Civil Procedure 11(b), the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party who filed the arbitration demand reimburse the responding party for all arbitration fees and costs it incurred under the Fee Schedules. Specifically, the arbitrator shall order such sanctions if the arbitrator finds: (i) the claim(s) were presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claim(s), defense(s), and/or other legal contentions were not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (iii) the factual and damages contentions did not have evidentiary support and were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.

The arbitration will be conducted in Lake Forest, California, unless (i) the parties agree otherwise in writing or (ii) the batch arbitration provision below is triggered (in which case, the batches will proceed in locations to be determined by the arbitrator). The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction. These Terms and Conditions evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the parties expressly intend that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration (as defined below), and any arbitration.

Any arbitration proceeding initiated under this Arbitration Agreement will be administered under the AAA Rules and Procedures, as defined above. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of this Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion thereof, except to the extent the applicable law precludes enforcement of this Arbitration Agreement as to any particular claim or request for relief, as further described below, in which case the validity and enforceability of this Arbitration Agreement as to that claim or request for relief shall be decided by a court of competent jurisdiction in San Francisco, California.

Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (i) a violation of either party’s intellectual property rights in any manner; and/or (ii) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; then you and FitDaily agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in Los Angeles, California, and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either you or we may assert an individual action in small claims court for Disputes that are within the scope of such court’s jurisdiction in lieu of arbitration as long as such action remains in such court and advances only on an individual (non-class, non-representative) basis.

YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified otherwise herein. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED HEREIN, ALL DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. NO PARTY MAY BRING ANY CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS AGREEMENT AS A PRIVATE ATTORNEY GENERAL, IN A REPRESENTATIVE CAPACITY, OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. NO ARBITRATION OR CLAIMS SHALL BE CONSOLIDATED OR JOINED WITH ANY OTHER ARBITRATION OR CLAIMS EXCEPT AS EXPLICITLY SPECIFIED HEREIN. 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). 

If a final decision, not subject to any further appeal or recourse, determines that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then such claim or request for relief (and only that claim or request for relief) shall be severed from the arbitration and may be brought exclusively in the state or federal courts located in Los Angeles, California, subject to the parties’ respective rights to appeal the decision. All other claims or requests for relief shall be arbitrated. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles, California for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph. This subsection does not prevent you or us from participating in a class-wide settlement of claims, provided that any such settlement is approved by the arbitrator or court with jurisdiction over the matter.

To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are twenty-five (25) or more individual arbitrations of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period, AAA shall (i) administer the arbitration demands in batches of one hundred (100) arbitrations per batch (or, if between twenty-five (25) and ninety-nine (99) individual arbitrations are filed, a single batch of all those arbitrations, and, to the extent there are fewer than one hundred (100) arbitrations left over after the batching described above, a final batch consisting of the remaining arbitrations); (ii) appoint one arbitrator for each batch, whom AAA will appoint without soliciting input or feedback from any party; and (iii) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, with preference for a location in California convenient to FitDaily’s principal place of business, and one final award (“Batch Arbitration”). AAA shall administer all batches concurrently, to the extent possible.

All parties agree that arbitrations are of a “substantially similar nature” if they arise out of or relate to the same event(s), act(s), omission(s), practice(s) or factual scenario(s) and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise AAA, and AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly, provided that such procedures afford each party a reasonable opportunity to present its position and supporting evidence. The Administrative Arbitrator’s fees shall be allocated as determined by the Administrative Arbitrator based on the reasonableness of each party’s position, provided that if the Administrative Arbitrator determines that the batch arbitration process applies, the claimants shall bear the Administrative Arbitrator’s fees, and if the Administrative Arbitrator determines that the batch arbitration process does not apply, FitDaily shall bear the Administrative Arbitrator’s fees.

You and we agree to cooperate in good faith with AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of arbitrations, with each party responsible for their own filing fees and FitDaily responsible only for administrative fees to the extent required by applicable law, as well as any steps to minimize the time and costs of arbitration, which may include, but are not limited to: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process. If this Batch Arbitration provision is found under the law to be invalid or unenforceable, then the Batch Arbitration provision shall be severed and the remainder of the Arbitration Agreement shall remain in full force and effect, with individual arbitrations proceeding on a case-by-case basis. If the entire Arbitration Agreement is found to be invalid or unenforceable, then the parties agree that all Disputes will be heard in the state or federal courts located in Los Angeles, California.

If you do not wish to be bound by this Arbitration Agreement, you can opt out of this Arbitration Agreement within thirty (30) days after first becoming subject to this Arbitration Agreement. To opt out, you must send: (i) your name; (ii) residence address; (iii) email address; and (iv) a clear statement that you want to opt out of the Arbitration Agreement to: FitDaily LLC at 25531 Commercentre Dr. Ste 250, Lake Forest, California 92630, ATTN: Arbitration Opt-Out (the “Opt-Out Notice”). You must personally sign the Opt-Out Notice in ink or with a verified digital signature for it to be effective. Any signature must include the signatory’s full legal name as it appears on their account. Any Opt-Out Notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or our rights, except that opt-out notices sent by your attorney or legal representative with appropriate documentation of their authority to act on your behalf shall be deemed valid. Opting out of this Arbitration Agreement has no effect on any previous or other arbitration agreements that you currently have, or may enter in the future, with us. If you opt out of this Arbitration Agreement, all other parts of these Terms and Conditions will continue to apply to you.

Notwithstanding anything to the contrary in this Agreement, if we make any future material modification to any provisions of this Agreement that govern the arbitration or resolution of Disputes, such changes will not apply to any Dispute between you and us for which either party had previously provided a written Request to the other in accordance with this Arbitration Agreement. Continued use of the Service following the effective date of such material change will constitute acceptance of those changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and Conditions containing an Arbitration Agreement and did not validly opt out of arbitration. If you are bound by an existing agreement to arbitrate Disputes and you reject any change or update to this Arbitration Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions) remain in full force and effect. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms and Conditions.