Terms of Service
Effective: July 9th, 2020
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THESE TERMS OF SERVICE INCLUDE AN AGREEMENT TO ARBITRATE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND. SEE SECTIONS 10.1-10.10 BELOW FOR THE TERMS OF THIS ARBITRATION AGREEMENT.
These terms of service (“Terms of Service” or “Terms”) constitute an agreement between you and Vaheala, LLC and its affiliates (collectively, “Vaheala” or “Us” or “We”) regarding your use of Vaheala. By accessing or using Vaheala, you accept and agree to these Terms of Service and the Privacy Policy, which are incorporated into these Terms by reference. You warrant that you are not prohibited from receiving products of U.S. origin, including services or software. In addition, Vaheala is not permitted to be used by residents of, or users located in, the European Economic Area at this time. If at any point you do not agree to any portion of the then-current version of our Terms of Service, our Privacy Policy, or any other Vaheala policy, rules, or codes of conduct relating to your use of Vaheala, you must immediately stop using Vaheala and delete Vaheala from all your devices.
TABLE OF CONTENTS
Section 1: LICENSES AND LIMITATIONS
Section 2: USER INFORMATION
Section 3: OWNERSHIP
Section 4: UPDATES AND PRIVACY POLICY
Section 5: WARRANTY & MEDICAL DISCLAIMERS/LIMITATIONS/WAIVERS/INDEMNIFICATION
Section 6: AGREEMENT TO ARBITRATE
Section 7: MISCELLANEOUS
LICENSE AND LIMITATIONS
1.1. Limited License. Subject to your agreement and continuing compliance with these Terms and any other relevant Vaheala policies, Vaheala grants you a non–exclusive, non–transferable, revocable, limited license to access and use Vaheala using a web browser or mobile device solely for your own non–commercial purposes. You agree not to use Vaheala for any other purpose. You will receive, at your cost, certain messages (including SMS messages) in connection with your use of Vaheala, including without limitation, administrative messages, service announcements, and application updates, from Vaheala, your mobile carrier or third-party service providers. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access Vaheala, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through Vaheala.
1.2. License Limitations. Any use of Vaheala in violation of these license limitations or these Terms is strictly prohibited and can result in the immediate revocation of your limited license granted in these Terms, and may subject you to liability for violations of law and these Terms. Any attempt by you to disrupt or interfere with Vaheala including undermining or manipulating the legitimate operation of any application is a violation of these Terms and may be a violation of law. You agree that you will not, under any circumstances, do any of the following:
1.2.1. Use, design, or assist in the design of cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with Vaheala or any application experience;
1.2.2. Modify or cause to be modified any files that are a part of Vaheala;
1.2.3. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support Vaheala or any application environment; or (2) the use of Vaheala by any other person;
1.2.4. Institute, assist, or become involved in any type of attack, including but not limited to distribution of a virus, denial of service attacks upon Vaheala, or other attempts to disrupt Vaheala or any other person’s use or enjoyment of Vaheala;
1.2.5. Attempt to gain unauthorized access to Vaheala, accounts registered to or information provided by or related to others or to the computers, servers, or networks connected to Vaheala by any means other than the user interface provided by Vaheala, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of Vaheala;
1.2.6. Engage in any act that Vaheala deems to be in conflict with the spirit or intent of Vaheala, including, but not limited to, circumventing or manipulating these Terms, our application rules, application mechanics or policies;
1.2.7. Improperly use Vaheala’s support services;
1.2.8. Use Vaheala, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
1.2.9. Use Vaheala or any part thereof for any commercial purpose, including but not limited to for any commercial advertisement or solicitation.
1.2.10. Transmit unauthorized communications through Vaheala, including any materials that promote malware, spyware and downloadable items;
1.2.11. Attempt to, or harass, bully, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, including Vaheala employees and/or customer service representatives;
1.2.12. Make available through Vaheala information that infringes any right of privacy, or other right of any person or entity or impersonates any other person, including but not limited to a Vaheala employee and/or customer service representative;
1.2.13. Use any unauthorized third-party software that accesses, intercepts, “mines,” or otherwise collects information from or through Vaheala or that is in transit from or to Vaheala, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by Vaheala to store information about application elements or environment. Vaheala may, at its sole and absolute discretion, allow the use of certain third-party user interfaces;
1.2.14. Intercept or observe any proprietary communications protocol used by a user, client, server, or Vaheala, whether through the use of a network analyzer, packet sniffer, or other device;
1.2.15. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
1.2.16. Bypass any robot exclusion headers or other measures that are intended to restrict access to Vaheala or use any software, technology, or device to send information or messages, scrape, spider, or crawl Vaheala, or harvest or manipulate data;
1.2.17. Use, facilitate, create, or maintain any unauthorized connection to Vaheala, including but not limited to any connection to any unauthorized server that emulates, or attempts to emulate any part of Vaheala or any connection using programs, tools, or software not expressly approved in writing by Vaheala;
1.2.18. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide Vaheala, or to obtain any information from Vaheala using any method not expressly permitted by Vaheala;
1.2.19. Copy, modify or distribute rights or content from any Vaheala site or application, or Vaheala’s copyrights or trademarks or use any method to copy or distribute the content of Vaheala except as specifically allowed in these Terms of Service.
1.2.20. Collect, harvest or post anyone’s private information, including personally identifiable information or identification documents through Vaheala;
1.2.21. Upload or transmit or attempt to upload or transmit, without Vaheala’s express permission, any material that acts as a passive or active information collection or transmission mechanism;
1.2.22. Create an account or access Vaheala if you are under the age of 18;
1.2.23. Fail to monitor your account to restrict use by unauthorized minors or fail to deny access to children under the age of 13 (it being understood that you accept full responsibility for any unauthorized use of Vaheala by minors in connection with your account);
1.2.24. Have more than one account, per platform or SNS, at any given time, or create an account using a false identity or information, or on behalf of someone other than yourself;
1.2.25. Have an account or use Vaheala if you have previously been removed by Vaheala or previously been banned from any Vaheala application;
1.2.26. Use Vaheala if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals. Further, you will comply with all applicable U.S. and non–U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re–export, provide, or otherwise transfer Vaheala: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non–U.S. government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download Vaheala for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods; or
1.2.27. Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your account to anyone without Vaheala’s written permission.
1.3. Login Information. During the account confirmation process, you will be required to log in using your phone number, First Name and Last Name using a personalized hyperlink we will send you (collectively, “Login Information”). The following rules govern the security of your Login Information: (a) you agree not to share your Login Information with any other person, let anyone else access your account, or do anything else that might jeopardize the security of your account; (b) in the event you become aware of or suspect any breach of security, including but not limited to any loss, theft, or unauthorized disclosure of the Login Information, you agree to immediately notify Vaheala; (c) you are solely responsible for maintaining the confidentiality of the Login Information, and you agree to be responsible for all uses of the Login Information; and (d) you are responsible for anything that happens through your account.
USER INFORMATION
2.1. User Information. “User Information” means any information that is uploaded or transmitted through Vaheala, including but not limited to IP addresses and your personal information.
2.2. Information You Provide Through Vaheala. You are responsible for all information you provide through or in connection with Vaheala and that you share with others. If you submit suggestions, proposals, comments, feedback or other materials (collectively “Submissions”) within Vaheala, you understand and agree that Vaheala (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
2.3. User Interactions and Text Messaging Services. You acknowledge and agree that, by signing up for Vaheala using your mobile phone number, you expressly consent to receive Vaheala-related text (SMS) messages from Vaheala and its representatives, and that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt-in to receive messages at that number. You acknowledge and agree that such messages may be sent using an automatic telephone dialing system or other technology.
SUSPENSION AND TERMINATION OF ACCOUNT AND SERVICE
WITHOUT LIMITING ANY OF OUR OTHER REMEDIES, WITH OR WITHOUT NOTICE TO YOU, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO VAHEALA OR PORTIONS THEREOF IF YOU ARE, OR VAHEALA SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF VAHEALA, CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR OTHERWISE ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. YOU CAN LOSE ACCESS TO VAHEALA WHICH COULD RESULT IN TERMINATION BY EMPLOYER WHO REQUIRES VAHEALA’S SERVICES. AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS AND PRIVILEGES ASSOCIATED WITH YOUR USE OF VAHEALA, AND YOU SHALL NOT HAVE ANY RIGHT TO COMPENSATION OR REMEDY FOR ANY SUCH LOSSES OR RESULTS.
We reserve the right to cease offering or supporting Vaheala or a particular application or part of Vaheala at any time either permanently or temporarily, at which point your license to use Vaheala or a part thereof will be automatically terminated or suspended. In such event, Vaheala shall not provide refunds, benefits, or other compensation to users in connection with such discontinued elements of Vaheala. Termination of your account can include disabling your access to Vaheala or any part thereof including any information you submitted or others submitted.
OWNERSHIP
3.1. Our Application. Vaheala (including but not limited to any titles, computer code, themes, objects, audio–visual effects, methods of operation, moral rights, documentation, and and server software) is a copyrighted work owned by Vaheala. Vaheala reserves all rights, including, but not limited to, all intellectual property rights or other proprietary rights in connection with Vaheala.
3.2. Accounts. Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that you have no ownership or other property interest in an account, and you further acknowledge and agree that all rights in and to an account are and are forever owned by and inure to the benefit of Vaheala. Accounts created with us will be considered active until we receive a user request to deactivate or delete them or until we elect to terminate them in accordance with these Terms. We additionally reserve the right to terminate any accounts that we deem are inactive. To learn more about deactivating and deleting your account, as well as our data retention practices, please see the Vaheala Privacy Policy.
3.3. User Information. By submitting any User Information while using Vaheala, you affirm, represent, and warrant that that submission is (a) accurate; (b) not in violation of any applicable laws, contractual restrictions, or other third-party rights; (c) free of viruses, adware, spyware, worms, or other malicious code; and (d) User Information will at all times be processed by Vaheala in accordance with its Privacy Policy.
UPDATES AND PRIVACY POLICY
4.1. Service. You understand that Vaheala is evolving. We may require that you accept updates to Vaheala and to our applications you have installed on your computer or mobile device. You acknowledge and agree that Vaheala may update Vaheala with or without notifying you. You may need to update third-party software from time to time in order to use Vaheala.
4.2. Privacy Policy. Use of Vaheala is also governed by the Vaheala Privacy Policy, which is incorporated into these Terms by reference. Your privacy is important to us. We designed Vaheala’s Privacy Policy to make important disclosures about how you share and we use your information and how you can use Vaheala to share such information colleuagues. We encourage you to read the Privacy Policy carefully and use it to make informed decisions. By creating an account or accessing or using Vaheala you accept and agree to be bound by these Terms of Service and consent to our use and storage of your information as outlined in Vaheala’s Privacy Policy. To the extent the Terms of Service or Vaheala Privacy Policy conflict with any other Vaheala terms, policy, rules or codes of conduct, the terms contained in these Terms of Service and in the Vaheala Privacy Policy shall govern.
4.3. Updates to the Terms of Service and Vaheala Privacy Policy. Vaheala reserves the right, at our discretion, to change, modify, add or remove portions of these Terms of Service and Vaheala’s Privacy Policy at any time by posting the amended Terms on or within Vaheala. You may also be given additional notice, such as messaging within Vaheala, of any changes. You will be deemed to have accepted such changes by continuing to use Vaheala for 30 days following our posting of the changes on Vaheala. Except as otherwise stated, all amended terms shall automatically be effective when they are posted. Vaheala may also revise other policies, codes, or rules at any time. No amendment to the Terms of Service or Privacy Policy shall apply to any dispute of which Vaheala had actual notice before the date of the amendment.
WARRANTY & MEDICAL DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
5.1. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF VAHEALA IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON–INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED UNDER APPLICABLE LAW). WITHOUT LIMITING THE FOREGOING, NEITHER VAHEALA NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD–PARTY CONTENT PROVIDERS, SERVICE PARTNERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “VAHEALA PARTIES”) WARRANT THAT VAHEALA WILL BE UNINTERRUPTED OR ERROR–FREE.
5.2. MEDICAL DISCLAIMER. WE DO NOT PROVIDE ANY MEDICAL ADVICE OR ASSURANCES REGARDING HEALTH OR SAFETY.
VAHEALA DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. THE CONTENTS OF THIS SERVICE, INCLUDING TEXT, GRAPHICS, IMAGES, AND OTHER MATERIALS CREATED BY VAHEALA OR OTHERWISE CONTAINED IN VAHEALA ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR YOUR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION. WE CANNOT GUARANTEE THAT IT WILL CORRECTLY AND COMPREHENSIVELY APPRISE YOU OF THE RISK THAT YOU MAY OR MAY NOT HAVE BEEN EXPOSED TO COVID-19 OR TO SOMEONE WHO HAS TESTED POSITIVE FOR THE VIRUS.
RELIANCE ON ANY INFORMATION PROVIDED BY VAHEALA OR IN CONNECTION WITH ITS SERVICES IS SOLELY AT YOUR OWN RISK. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER, OR APPROPRIATE GOVERNMENT ENTITY, WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH OR COVID-19. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. VAHEALA DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN VAHEALA.
5.3. LIMITATIONS; WAIVERS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED IN THESE TERMS APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, VAHEALA UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE VAHEALA PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, VAHEALA. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE VAHEALA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE VAHEALA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF VAHEALA AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF VAHEALA AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE VAHEALA PARTIES BE LIABLE TO YOU FOR MORE THAN TEN DOLLARS. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH VAHEALA IS TO STOP USING VAHEALA AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF VAHEALA.
5.4. Indemnification. You shall indemnify, save, and hold harmless Vaheala, its affiliated companies, contractors, employees, agents and its third–party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of Vaheala, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you in these Terms. Vaheala reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Vaheala, and you agree to cooperate with Vaheala’s defense of these claims. Vaheala will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your account or of Vaheala.
AGREEMENT TO ARBITRATE
6.1. Arbitration. Please read the following arbitration agreement in this Section 6 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Vaheala, its parent companies, subsidiaries, affiliates, successors and assigns, and all of its and their respective officers, directors, employees, agents and representatives (collectively, the “Vaheala Parties”) and limits the manner in which you can seek relief from the Vaheala Parties.
6.2. Applicability of Arbitration Agreement. You agree that any dispute, claim or controversy arising out of, relating to, or in any way connected to your access to or use of Vaheala, any communication you receive through or relating to Vaheala, or these Terms (including this Arbitration Agreement), will be resolved exclusively by binding arbitration on an individual basis, rather than in court, except that: (i) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (ii) you or the Vaheala Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents). This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Vaheala Parties on your behalf.
BY AGREEING TO ARBITRATE WITH THE VAHEALA PARTIES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN, OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN, ANY LAWSUIT OR PROCEEDING FILED AGAINST ANY VAHEALA PARTIES ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE VAHEALA PARTIES IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THESE TERMS, INCLUDING THIS ARBITRATION AGREEMENT.
6.3. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to:
Vaheala, LLC
349 Kent Ave
6A
Brooklyn, NY 11249
The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, in New York, New York. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ and other legal fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Vaheala will pay them for you. In addition, Vaheala will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, the Vaheala Parties will not seek attorneys’ and other legal fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
6.4. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Vaheala Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Vaheala Parties.
6.5. Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 6.2, YOU AND THE VAHEALA PARTIES 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 the Vaheala Parties are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 6.2 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
6.6. Waiver of Class or Consolidated Actions. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE VAHEALA PARTIES AGREE THAT EACH MAY BRING CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in a court of competent jurisdiction. All other claims will be arbitrated.
6.7. Thirty-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to support@vaheala.com or to Vaheala, LLC, c/o 349 Kent Ave., Brooklyn, NY 11249, in each case within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and the phone number you used to set up your account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
6.8. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
6.9. Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Vaheala.
6.10. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Vaheala makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Vaheala at the following address: Vaheala, LLC, c/o 349 Kent Ave., Brooklyn, NY 11249.
MISCELLANEOUS
7.1. Assignment. All of Vaheala’s rights and obligations under these Terms and the Vaheala Privacy Policy are freely assignable by Vaheala, in whole or in part, to any person or entity at any time with or without your consent, including to any of our affiliates or in connection with a merger, acquisition, spinoff, restructuring, or sale of assets, by operation of law or otherwise, and Vaheala may transfer your information to any of our successor entities, asset purchasers or new owners who we will require to abide by our Privacy Policy. You will not transfer any of your rights or obligations under this Agreement to anyone else without Vaheala’s prior written consent, and any unauthorized assignment and delegation by you is null and void.
7.2. Supplemental Policies. Vaheala may publish additional policies related to specific services it offers. Your right to use such services is subject to those specific policies and these Terms of Service.
7.3. Severability. Except as set forth in the last two sentences of Section 6.6, you and Vaheala agree that if any portion of these Terms of Service or of the Vaheala Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.
7.4. Entire Agreement. These Terms, any supplemental policies, and any documents expressly incorporated by reference herein (including Vaheala’s Privacy Policy), contain the entire understanding of you and Vaheala and supersede all prior understandings of the parties to these Terms relating to the subject matter of these Terms, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to Vaheala.
7.5. Language of the Terms of Service. If we provide you with a translation of the English language version of these Terms, the Vaheala Privacy Policy, or any other policy, then you agree that the translation is provided for informational purposes only and does not modify the English language version. In the event of a conflict between a translation and the English version, the English version will control.
7.6. No Waiver. The failure of Vaheala to require or enforce strict performance by you of any provision of these Terms of Service or the Vaheala Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of Vaheala’s right to assert or rely upon any such provision or right in that or any other instance. The express waiver by Vaheala of any provision, condition, or requirement of these Terms of Service or the Vaheala Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
7.7. Amendment. Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by either party shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing. For purposes of this provision, “writing” does not include an email message and a signature does not include an electronic signature.
7.8. Notices. We may notify you by postings within Vaheala or via any other communications means to contact information you provide to us. All notices given by you or required from you under these Terms of Service or the Vaheala Privacy Policy shall be in writing and addressed to: Vaheala, LLC, c/o 349 Kent Ave., Brooklyn, NY 11249. Any notices that you provide without compliance with this Section 7.8 shall have no legal effect.
7.9. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms of Service to Vaheala are of a unique and irreplaceable nature, the loss of which will irreparably harm Vaheala and that cannot be replaced by monetary damages alone. Accordingly, Vaheala is entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of Vaheala or any Vaheala application, exploitation of any advertising, or other materials issued in connection therewith, or exploitation of Vaheala or any content or other material used or displayed through Vaheala and agree to limit your claims to claims for monetary damages, limited by Section 5 (if any).
7.10. Force Majeure. Vaheala shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Vaheala, including but not limited to any failure to perform hereunder due to unforeseen circumstances or cause beyond Vaheala’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
7.11. Notice For California Users. Under California Civil Code Section 1789.3, users of Vaheala from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210. You may contact us at Vaheala, LLC, c/o 349 Kent Ave., Brooklyn, NY 11249 or 630-220-8837.
7.12. Governing Law. These Terms shall be governed by the laws of the State of New York, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply.
7.13. Exclusive Jurisdiction. To the extent that these Terms allow you or us to initiate litigation in a court, both you and us agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Terms or the use of Vaheala will be litigated exclusively in the state or federal courts located in Kings County within the State of New York. Both you and us consent to the personal jurisdiction of such courts.