TERMS OF SERVICE
The Paleo Diet, LLC
Please read the following Terms of Service carefully. If you do not agree with these terms governing your relationship with The Paleo Diet, you should not use The Paleo Diet applications, website, platform, or other software or technology products.
Last updated September 15, 2022
This Agreement constitutes a legally binding agreement (the “Agreement”) between you The Paleo Diet, LLC (“Paleo Diet,” “we,” “us” or “our”), governing your use of the applications, websites, and/or other software or technology products available through https://thepaleodiet.com, including any and all subdomains or subdirectories thereof (the “FTL URL”), and available through mobile, desktop, or device applications (“Apps”) and The Paleo Diet-controlled social media pages (including Facebook, Instagram, Spotify and Twitter)under any and all developer accounts connected to The Paleo Diet or The Paleo Diet URL accessed through the iOS App Store, the Google Play Store, or any other platform for the distribution of software applications (collectively, “The Paleo Diet Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND THE PALEO DIET CAN BE BROUGHT (SEE SECTION 18 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST THE PALEO DIET TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
1. Who may use The Paleo Diet Platform
The Paleo Diet enables people, organizations and other legal entities (“Clients”) to access information, as well as one-on-one coaching and education for customers who opt into those services, regarding physical fitness, nutrition, and training (“Fitness Services”) to find and engage, on an independent contractor basis, qualified and experienced personal trainers, coaches, nutritionists (“Fitness Providers”). Additionally, The Paleo Diet Platform enables Clients to access information as well as one-on-one limited scope healthcare and education for customers who opt into those services regarding healthcare, as provided by certain healthcare providers including but not limited to physical therapists, physician assistants, nurse practitioners, chiropractors, doctors of osteopathy, and medical doctors (“Healthcare Services”).
Account Age Requirement. You must be at least 16 years old to become a Member.
Fitness Providers and Healthcare Providers, together with Clients and all other people, organizations and other legal entities who access The Paleo Diet Platform for any reason, (“Users”). Each User may create a User account that enables access to The Paleo Diet Platform. Each person may only create one User account, and The Paleo Diet reserves the right to shut down any additional accounts.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN FITNESS SERVICES OR HEALTHCARE SERVICES THROUGH THE USE OF THE PALEO DIET PLATFORM DOES NOT ESTABLISH THE PALEO DIET AS A PROVIDER OF FITNESS SERVICES OR HEALTHCARE SERVICES.
Based on information provided by Users, The Paleo Diet facilitates the sharing of information from Clients with Fitness Providers or Healthcare Providers chosen by those Clients in the Clients’ sole discretion. Clients are entirely responsible for choosing which Fitness Provider to Healthcare Provider to share information with and are entirely responsible for the information they choose to exchange through The Paleo Diet Platform. The Paleo Diet does not utilize discretion in screening Fitness Providers or Healthcare Providers. Neither The Paleo Diet, nor our respective employees, are making a referral to, or endorsing, any individual, company or agency, nor are we providing any medical, diagnostic, treatment or clinical service or engaging in any conduct that requires a professional license.
For purposes of this Agreement, the Fitness Services provided by Fitness Providers and Healthcare Services provided by Healthcare Providers to Clients through The Paleo Diet Platform are referred to collectively as “Services.” Fitness Providers and Healthcare Providers may collectively be referred to as “Providers.”
Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Any connection between a Fitness Provider and a Healthcare Provider to a Client shall constitute a separate agreement between such persons.
Except as explicitly set forth in the agreement between the Healthcare Provider and a Client, Services shall never include medical care of any kind, including emergency care, and no part of the Fees constitutes compensation for any medical or emergency care. If an emergency occurs during an In-person Meeting, neither the Provider nor The Paleo Diet shall be liable for any damages resulting from any act or omission of the Provider. In the event that a Provider renders emergency care during an In-person Meeting, such Provider, and if applicable The Paleo Diet, shall be entitled to the full benefit of any “Good Samaritan” laws.
Subject to your compliance with this Agreement, The Paleo Diet grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use The Paleo Diet Platform on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by The Paleo Diet and The Paleo Diet’s licensors.
The Paleo Diet may from time to time provide certain services, programs, promotions, opportunities and contests to Clients and/or Providers (“The Paleo Diet Programs”). The Paleo Diet may at any time in its sole discretion, change, modify, add to, supplement or delete the terms and conditions of any The Paleo Diet Program, including without limitation changing the name, fees and eligibility requirements to participate in such The Paleo Diet Program. The Paleo Diet will endeavor to notify you of any material changes by email but will not be liable for any failure to do so. In any case, the liability of any of Company’s partners pursuant to such The Paleo Diet Programs shall be limited as described in this Agreement, including but not limited to Section 14 of this Agreement.
2. Modification to the Agreement
The Paleo Diet reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of The Paleo Diet Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
3. Eligibility and Status
To be eligible to use our Services, you must meet the following criteria:
- You must be sixteen (16) years of age or older.
- If you are registering as a Provider, you must be permitted to legally work within the United States.
- You must not be a competitor of The Paleo Diet or using our Services for reasons that are in competition with The Paleo Diet.
- You must comply with any and all regulations to which you are subject.
- Providers must comply with all regulations related to the provision of related Services in your state and/or local jurisdiction.
Notwithstanding the foregoing, The Paleo Diet reserves the right to restrict access to the Services to any person or persons at any time, at The Paleo Diet’s sole discretion.
The Paleo Diet does not employ any providers. Clients alone are the potential employers of Providers and are responsible for compliance with all applicable employment and other laws in connection with the relationship they establish.
The Paleo Diet does not have control over the quality, timing, or legality of the services actually delivered by Providers, nor of the responsibility or actions of Clients or Providers. We may refer or recommend Clients or Providers, but we make no representations about the suitability, reliability, timeliness, and accuracy of the services provided by Providers or the responsibility or actions of Clients or Providers whether in public, private or offline interactions. You are required to do your own research and make your own decisions regarding any referral or recommendation by The Paleo Diet. The Paleo Diet does not provide any training or equipment to Providers, nor does The Paleo Diet have the right to direct and control the work performed by Providers or the financial and business aspects of Providers’ work. Any affiliation between Providers and Clients takes place directly between those parties and The Paleo Diet is not responsible for any allegations arising from such a relationship.
As a Provider using The Paleo Diet Platform, you acknowledge and agree that the relationship between the parties under this Agreement is solely that of independent contracting parties. You and The Paleo Diet expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and The Paleo Diet; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind The Paleo Diet, and you undertake not to hold yourself out as an employee, agent or authorized representative of The Paleo Diet.
All Users hereby agree and acknowledge that The Paleo Diet is not responsible for ensuring compliance with federal, state or local laws regarding healthcare, information, employment classification, overtime, workers’ compensation, income tax withholding or any other tax matters, and that all Users will indemnify and hold harmless The Paleo Diet, its employees, directors, consultants and shareholders, with respect to any all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of or relating to the foregoing.
If you are a Provider, you hereby expressly acknowledge and agree that you are not entitled to unemployment insurance benefits through The Paleo Diet, and that unless you have entered into an express written agreement with a Client or Clients, you are obligated to pay federal and state income tax on any moneys you receive through The Paleo Diet Platform. You also acknowledge that providing Services through The Paleo Diet Platform does not constitute your primary source of income, and that your work for Clients is on an informal, occasional basis.
4. Membership Terms of Service
By purchasing, using, or availing yourself of The Paleo Diet Platform Membership, you agree to the following terms and conditions.
A “Member” is any individual who has a Paleo Diet account for personal, non-commercial use. A “Membership Holder” is any Member who activates and pays the monthly subscription fees for a Membership.
Membership provides you with access to specified Paleo Diet offerings.
Any Membership recurs on a monthly basis or annually until it is canceled in accordance with these Membership Terms. Billing occurs at the beginning of the Membership cycle and provides access for one month or year thereafter. By obtaining a Membership, you acknowledge that your Membership has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Membership by you or The Paleo Diet.
If you choose a Monthly Membership payment plan during checkout of your first membership activation, you agree to be auto-billed every 30 days via the payment method you used during checkout until you request membership cancellation.
If you choose an Annual Membership payment plan during checkout of your first membership activation, you agree to be auto-billed every 365 days via the payment method you used during checkout until you request membership cancellation. If you pay for your Membership annually, at your request, we will issue a refund for your annual membership within 30 days of you joining The Paleo Diet platform. After 30 days, we will not issue a refund, but we will try to work with you to make our membership program work better for you. Unless we mutually agree on some other resolution, your membership will remain active until the one-year anniversary. We do not offer pro-rated refunds.
The Paleo Diet may offer additional promotions or discounts related to Memberships from time to time. Please read the details of those offers carefully, as any additional terms presented to you during the signup process will form part of these Membership Terms. Unless specified in writing, all discount offers that require a payment are non-refundable. Any free trial or other promotion must be used within the specified time frame of the trial or promotion. You may be required to have a valid payment method on file in order to initiate a free trial; in this case, if you do not cancel before your free trial period ends, your account will be converted to a paid Membership and will be charged in accordance with these Membership Terms.
If you terminate your Membership, you may use your Membership until the end of the then-current period and your Membership will not be renewed after that period expires. However, you will not be eligible for a prorated refund of any portion of the Membership fee paid for the then-current Membership period.
The Paleo Diet may immediately terminate or suspend your account, and all or a portion of your Membership, without notice if:
- your payment is overdue (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend);
- you provide false or inaccurate information;
- you violate these Terms of Service or any other The Paleo Diet rules or agreements then in effect;
- you engage in conduct that is a violation of any applicable law or tariff (including, without limitation, copyright and intellectual property laws); or
- if you engage in conduct that is threatening, abusive or harassing to The Paleo Diet employees, agents, or other Paleo Diet users, including, for example, making threats to physically harm or damage property.
In the event that The Paleo Diet determines, in its sole discretion, that your Membership is being accessed in a commercial setting or is for commercial use, The Paleo Diet reserves the right terminate or suspend your Membership at any time without notice. You understand and agree that conversion of a Membership to a commercial subscription may be subject to additional fees and requirements as provided to you by The Paleo Diet.
If we terminate or suspend your Membership, your license to use any software or content provided in connection with the Membership is also terminated or suspended (as applicable). If your Membership is terminated, The Paleo Diet has the right to immediately delete all data, files, and other information stored in or for your account without further notice to you. You must pay all charges up to and including the date of termination. Should you wish to resume your Membership after any suspension, a restoration of service fee may apply. This fee is in addition to all past due unpaid charges and other fees.
Membership Holders agree to pay the monthly fee specified when you purchased your Membership (plus any applicable taxes and other charges). If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction, unless applicable law requires you to expressly consent to the change in price. Any agreement you have with your payment provider governs your use of your specified payment method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Your failure to terminate and/or continued use of your Membership reaffirms that we are authorized to charge you for that Membership. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you.
You may be asked to provide a payment method (such as a credit, charge or debit card number) that we accept in order to activate your Membership, along with other payment information. You represent and warrant that you have the legal right to use all payment method(s) that you provide to us. Your authorizations in this section also apply to our payment processors and any other companies who act as billing agents for us. You hereby authorize us to charge your specified payment method on a monthly basis in line with your Membership cycle, in advance, for your Membership(s) and/or to place a hold on your payment method with respect to any unpaid charges for your Membership(s). You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt, and you agree that these Membership Terms shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither The Paleo Diet, nor any The Paleo Diet agent, will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified payment method as contemplated by these Membership Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.
You agree to pay us, through our payment processors or financing partners (as applicable), all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the payment method you provide when you set up your account. We reserve the right to correct, or to instruct our payment processors or financing partners to correct, any errors or mistakes, even if payment has already been requested or received.
Under certain circumstances The Paleo Diet may offer a 30-day money-back guarantee. To request a membership cancellation and refund, simply email email@example.com. We must receive your request within 30 days of the start of your membership.
If you believe you have been billed in error for a Membership, please notify us within 60 days of the billing date by contacting Member Support at (720) 350-4089 or emailing firstname.lastname@example.org. The Paleo Diet will not issue refunds or credits after the expiration of this 60-day period, except where required by applicable law.
No refunds or credits will be provided once a Member Holder’s credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made.
To cancel your membership and stop being billed, simply log into your account and on the Membership Account page, click cancel. You will not be billed again unless you rejoin our membership program. Your membership will remain active until the next payment due date at which time your membership will cancel. We do not offer pro-rated refunds.
Any Services between Healthcare Providers and/or Fitness Providers and Clients will be subject to a separate agreement between those Parties including payment.
6. Prohibited Uses; Reporting Abuse
Without limitation, while using The Paleo Diet Platform, Users may not:
- Publish, post, upload, distribute or disseminate any image, name, material or information regarding any other User, without the express permission of such User.
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Users, Providers and The Paleo Diet staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use The Paleo Diet Platform for any purpose in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Engage in social engineering or upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Provide false or inaccurate information when registering an account on The Paleo Diet Platform, using the Services or communicating with other Users or Providers.
- Impersonate another person or a User or Provider or allow any other person or entity to use your identification to post or view comments.
- Download any file posted by another User or Provider that a User or Provider knows, or reasonably should know, cannot be legally distributed through The Paleo Diet Platform.
- Restrict or inhibit any other User or Provider from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by The Paleo Diet, without the prior written consent of The Paleo Diet.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index The Paleo Diet Platform in any manner.
- Hack or interfere with The Paleo Diet Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate The Paleo Diet Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by The Paleo Diet.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Use The Paleo Diet Platform to solicit for any other business, website or service, or otherwise contact Users or Providers for employment, contracting or any purpose not related to use of The Paleo Diet Platform as set forth herein.
- Use The Paleo Diet Platform to collect usernames and or/email addresses of Users or Providers by electronic or other means.
- Register under different usernames or identities, after your account has been suspended or terminated, or terminate your registration and re-register in order to prevent a review from being associated with your account.
- BY USING THE SITE OR THE SERVICES, YOU AGREE TO REPORT ANY ALLEGED IMPROPRIETIES OF ANY USERS TO THE PALEO DIET IMMEDIATELY VIA ELECTRONIC CORRESPONDENCE. IN THE EVENT THAT ANY ALLEGATION OF IMPROPER CONDUCT BY ANY USER IN VIOLATION OF THESE TERMS OR OF APPLICABLE LAW, THE PALEO DIET WILL IMMEDIATELY SUSPEND THE ACCOUNT OF SUCH USER PENDING A FULL INVESTIGATION INTO SUCH ALLEGATIONS.
7. Public Content
The Paleo Diet Platform may contain profiles, reviews, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow The Paleo Diet and Users to communicate among each other. Users may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. You understand that all submissions made to Public Areas by Users (“Public Content”) will be public and not confidential, that you may be publicly identified by your name or login identification on The Paleo Diet Platform, including, with respect to Providers, information regarding reviews and performance of Services, and that The Paleo Diet will not be responsible for any damage or injury to occur as a result of Public Content or use of Public Areas.
8. Account, Password, Security and Communication
You must register with The Paleo Diet and create an account to use certain features of The Paleo Diet Platform and to use the Services. You may use your account only for yourself. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or The Paleo Diet for accessing The Paleo Diet Platform. You are solely and fully responsible for all activities that occur under your password or account. The Paleo Diet has no control over the use of your account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact The Paleo Diet immediately.
By entering into this Agreement or using The Paleo Diet Platform, you agree to receive communications from us, including via e-mail, text message, telephone, and push notifications. You agree that text messages, telephone calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from The Paleo Diet, its affiliated companies and/or Users, may include but are not limited to: operational communications concerning your User account or use of The Paleo Diet Platform or Services, updates concerning new and existing features on The Paleo Diet Platform, communications concerning promotions run by us or our third-party partners, and news concerning The Paleo Diet and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL EMAIL MAY IMPACT YOUR USE OF THE PALEO DIET PLATFORM OR THE SERVICES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS, EMAILS OR CALLS AS A CONDITION OF USING THE PALEO DIET PLATFORM OR THE SERVICES.
9. Personal Information
“Personal Information” is defined as any information and materials that you provide to The Paleo Diet or other Users in connection with your registration for and use of The Paleo Diet Platform, including without limitation Public Content.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
You hereby grant The Paleo Diet a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in your Personal Information, in any media now known or not currently known in order to market, promote, perform and improve upon The Paleo Diet Platform.
Public Content is primarily user generated, and we do not control or vet user generated content for accuracy. The Paleo Diet does not assume any responsibility for the accuracy or reliability of any information provided by Users on or off The Paleo Diet Platform.
10. Termination and Suspension
The Paleo Diet may terminate or suspend your right to use The Paleo Diet Platform at any time for any or no reason, with or without notice. The Paleo Diet is not obligated to provide you with an explanation for suspension or termination.
Without limiting the foregoing, The Paleo Diet may terminate or suspend your right to use The Paleo Diet Platform if you breach any term of this Agreement or any policy of The Paleo Diet posted through The Paleo Diet Platform from time to time, or if The Paleo Diet otherwise finds that you have engaged in inappropriate and/or offensive behavior. If The Paleo Diet terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, The Paleo Diet reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Should The Paleo Diet find that you violated this Agreement, The Paleo Diet reserves the right, at its sole discretion, to immediately terminate your use of The Paleo Diet Platform and Services. By using The Paleo Diet Platform and/or Services, you agree that The Paleo Diet may assess, and you will be obligated to pay, $10,000 per each day that you: (i) maintain User, information (including but not limited to, names, addresses, phone numbers, or email addresses) or copyrighted material that you scraped (either directly or indirectly in a manual or automatic manner) from The Paleo Diet Platform, or (ii) otherwise mis-use or mis-appropriate The Paleo Diet Platform content, including but not limited to, use on a “mirrored”, competitive, or third party site. This obligation shall be in addition to any other rights The Paleo Diet may have under these Terms or applicable law. Further, in order to protect the integrity of The Paleo Diet Platform and the Services, The Paleo Diet reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing The Paleo Diet Platform.
Even after your right to use The Paleo Diet Platform is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of The Paleo Diet Platform. All sections which, (a) expressly survive termination of this agreement, (b) apply to activities that may be conducted without access to The Paleo Diet Platform, or (c) by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
11. Links to Other Websites
Links (such as hyperlinks) from The Paleo Diet Platform to other sites on the Web do not constitute the endorsement by The Paleo Diet of those sites or their content. Such links are provided as an information service, for reference and convenience only. The Paleo Diet does not control any such sites and is not responsible for their content. The existence of links on The Paleo Diet Platform to such websites (including without limitation external websites that are framed by The Paleo Diet Platform as well as any advertisements displayed in connection therewith) does not mean that The Paleo Diet endorses any of the material on such websites,or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
12. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through The Paleo Diet Platform is owned by The Paleo Diet, excluding Personal Information that The Paleo Diet has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. The Paleo Diet owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from The Paleo Diet Platform without The Paleo Diet’s express prior written consent and, if applicable, the holder of the rights to the Personal Information. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of The Paleo Diet and, if applicable, the holder of the rights to the Personal Information.
The service marks and trademarks of The Paleo Diet, including without limitation the word The Paleo Diet and The Paleo Diet logos, are service marks and trademarks owned by The Paleo Diet. Any other trademarks, service marks, logos and/or trade names appearing via The Paleo Diet Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
13. Copyright Complaints and Copyright Agent
The Paleo Diet respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with The Paleo Diet Platform infringe upon your copyright or other intellectual property right, please send the following information to The Paleo Diet’ Copyright Agent at: The Paleo Diet, LLC 1405 Arapahoe Ave., Boulder, CO 80302 AND email@example.com.
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on The Paleo Diet Platform where the material you claim is infringed is located. Include enough information to allow The Paleo Diet to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exist — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- 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;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
14. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PALEO DIET MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. THE PALEO DIET DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER THE PALEO DIET NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER THE PALEO DIET NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. ANY SCREENING OF A USER AND HIS, HER OR ITS INFORMATION BY THE PALEO DIET IS LIMITED AND SHOULD NOT BE TAKEN AS COMPLETE, ACCURATE, UP-TO-DATE OR CONCLUSIVE OF THE INDIVIDUAL’S OR ENTITY’S SUITABILITY AS A PROVIDER OF SERVICES.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
15. No Liability
The Paleo Diet is not responsible for the conduct, whether online or offline, of any User of The Paleo Diet Platform or Services. Moreover, The Paleo Diet does not assume and expressly disclaims any liability that may result from the use of information provided on The Paleo Diet Platform. All Users, including both Clients and Providers, hereby expressly agree not to hold The Paleo Diet (or The Paleo Diet’s officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter “Affiliates”) liable for the actions or inactions of any User or other third party or for any information, instruction, advice or services which originated through The Paleo Diet Platform, and, to the maximum extent permissible under applicable law, The Paleo Diet and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
YOU ACKNOWLEDGE AND AGREE THAT THE PALEO DIET IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD THE PALEO DIET, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY THE PALEO DIET OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL THE PALEO DIET, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT THE PALEO DIET OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless The Paleo Diet, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use The Paleo Diet Platform, or (ii) any content submitted by you or using your account to The Paleo Diet Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. The Paleo Diet reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of The Paleo Diet.
17. Safety Warnings
THE PALEO DIET SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE PALEO DIET SITE OR HEARD ON THE PALEO DIET SERVICEs. THE USE OF INFORMATION PROVIDED THROUGH THE PALEO DIET SERVICES IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE PALEO DIET SITE OR AVAILABLE THROUGH ANY PALEO DIET SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE PALEO DIET SERVICES ARE CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, THE PALEO DIET MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE PALEO DIET SERVICES WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of The Paleo Diet with the intent of using The Paleo Diet services, you affirm that either (A) all of the following statements are true:
- no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner;
- you have never felt chest pain when engaging in physical activity;
- you have not experienced chest pain when not engaged in physical activity at any time within the past month;
- you have never lost your balance because of dizziness and you have never lost consciousness;
- you do not have a bone or joint problem that could be made worse by a change in your physical activity;
- your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition;
- you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and
- you do not know of any other reason you should not exercise; or
(B) your physician or general practitioner has been specifically consulted by you and approved of your use of The Paleo Diet services.
If applicable, you further affirm that
- you are not pregnant, breastfeeding or lactating; unless
- your physician or general practitioner has been specifically consulted and approved your use of The Paleo Diet services.
The Paleo Diet reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
18. Dispute Resolution and Arbitration Agreement
(a) Agreement to Binding Arbitration Between You and The Paleo Diet
YOU AND THE PALEO DIET MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with The Paleo Diet ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and The Paleo Diet, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and The Paleo Diet’ partners and service providers, including but not limited to payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND THE PALEO DIET. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), The Paleo Diet Platform, the Services, any other goods or services made available through The Paleo Diet Platform, your relationship with The Paleo Diet, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by The Paleo Diet, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by The Paleo Diet and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND THE PALEO DIET ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND THE PALEO DIET MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND THE PALEO DIET BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST THE PALEO DIET, WHICH ARE ADDRESSED SEPARATELY IN SECTION 18(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and The Paleo Diet agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and The Paleo Diet agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and The Paleo Diet will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Clients or Providers but is bound by rulings in prior arbitrations involving the same Client or Provider to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
The Paleo Diet may request the Arbitrator consider consolidating similarly situated arbitrations.
With respect to any Claims brought by The Paleo Diet against a Provider, or for Claims brought by a Provider against The Paleo Diet that: (A) are based on an alleged employment relationship between The Paleo Diet and a Provider; (B) arise out of, or relate to, The Paleo Diet’s actual deactivation of a Provider’s User account or a threat by The Paleo Diet to deactivate a Provider’s User account; (C) arise out of, or relate to, The Paleo Diet’s actual termination of a Provider’s Agreement with The Paleo Diet under the termination provisions of this Agreement, or a threat by The Paleo Diet to terminate a Provider’s Agreement; or (D) arise out of, or relate to, Fees, The Paleo Diet shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by The Paleo Diet pursuant to the fee provisions above). However, if you are the party initiating the Provider Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or as otherwise expressly provided in this subsection (e). Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 18(e), the term “Provider” shall be deemed to include both Healthcare Providers, Fitness Providers, and applicants to The Paleo Diet Platform who have not been approved to provide Services through The Paleo Diet Platform.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws The Paleo Diet may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, The Paleo Diet agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of The Paleo Diet’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (i) below, then The Paleo Diet will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and The Paleo Diet agree otherwise, any arbitration hearings between The Paleo Diet and a Client will take place in the city and county of Denver, Colorado, and any arbitration hearings between The Paleo Diet and a Provider will take place in the city and county of Denver. If your Claim is for $10,000 or less, The Paleo Diet agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 18(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; and (3) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and The Paleo Dietmay agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and The Paleo Diet. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
19. Governing Law
You and The Paleo Dietagree that if any portion of Section 18 titled “Dispute Resolution” is found illegal or unenforceable, that portion will be severed, and the remainder of the section will be given full force and effect. Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Colorado, without regard to choice of law principles.
20. Special Promotions
The Paleo Dietmay from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of The Paleo Diet, and can be activated, modified or removed at any time by The Paleo Dietwithout advance notification and the liability of any of The Paleo Diet’spartners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to this Agreement.
21. Geographic Restrictions
The Paleo Dietis based in the State of Colorado in the United States. We provide The Paleo DietPlatform for use only by persons located in the United States. We make no claims that The Paleo DietPlatform or any of its content is accessible or appropriate outside of the United States. Access to The Paleo DietPlatform may not be legal by certain persons or in certain countries. If you access The Paleo DietPlatform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
22. General Provisions
Failure by The Paleo Dietto enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right, will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and The Paleo Dietwith respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of The Paleo Diet, its successors and assigns.
23. Changes to this Agreement and The Paleo Diet Platform