Balanced Health Ventures, Inc.
Terms of Service
Last updated: June 6, 2021
Welcome, and thank you for your interest in Balanced! We appreciate you reviewing and following these terms so that we can continue to provide you with virtual fitness and wellness classes. These terms of service (“Terms”) are between you and Balanced Health Ventures, Inc. (“Balanced,” “we,” “our,” or “us”), and establish the terms that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING CONTACT@HELLOBALANCED.COM WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING. NOTWITHSTANDING THE FACT THAT BALANCED MAY UTILIZE HEALTH OR MEDICAL PERSONNEL TO MAKE GENERAL RECOMMENDATIONS, NOTHING STATED OR POSTED ON THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PERSONALIZED PROFESSIONAL ADVICE OR CARE. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. IN THE EVENT OF A MEDICAL OR HEALTH EMERGENCY, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS IMMEDIATELY.
1. Use of the Service.
A. Service. The “Service” includes: (1) Balanced’s website (located at https://hellobalanced.com) (the “Site”) as it may be updated, relocated, or otherwise modified from time to time; (2) virtual live and on-demand exercise classes for senior citizens through the Site; (3) any exercise, health, or wellness information provided by Balanced through the Site or during an exercise class, including Balanced’s provision of any assessments and suggestion of exercise classes; (4) the sale of related exercise equipment (“Products”) that Balanced may make available through the Site; and (5) all content on the Site and all intellectual property rights arising out of or related to the foregoing. Any person who joins the Balanced community by completing the registration process to access or use the Service is a “Member”.
B. License. Subject to your compliance with these Terms, Balanced hereby grants you a non-exclusive, revocable, non-transferable license to access and use the Service solely for your personal use.
2. Accounts; Registration; Restrictions.
A. Balanced Members. To access most features of the Service, you must register for an account. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.
B. Accuracy of Information. You acknowledge that if you provide any information to us that is not current, complete, or accurate, Balanced may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.
C. Closing your Account. You may close your account at any time and without cost, but you will remain liable for any outstanding purchases as well as any fees or other charges incurred in connection with your account. Balanced will not issue refunds for amounts previously incurred through our Service once you close your account. You can close your account by emailing firstname.lastname@example.org.
D. Eligibility. You represent and warrant that: (1) you are at least 18 years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. Balanced provides the Service from the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.
E. Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify Balanced immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at email@example.com. You are responsible for all use of the Service occurring under your account. You may not share your login credentials with any third party. Balanced will not be liable for any loss that you incur as a result of someone else using your login credentials or account.
F. Your Responsibilities. You may use the Service solely for lawful purposes, and you may not (and you may not allow or assist any third party to):
(1) use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;
(2) rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;
(3) circumvent or disable any security features of the Service, or probe, scan, or test the vulnerability of the Service;
(4) gain unauthorized access to the Service, to other Members’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
(5) use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;
(6) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;
(7) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);
(8) use the Service to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
(9) restrict, discourage, or inhibit any other Member from using the Service;
(10) disclose personal information about a third party or another Member on the Service or obtained from the Service without the consent of such third party or Member, or solicit, harvest, or collect information about other Members without their consent;
(11) violate any applicable international, federal, state, provincial, or local laws or regulations;
(12) use the Service in violation of Balanced’s or any third party's intellectual property or other rights;
(13) express or imply that any statements you make are endorsed by Balanced, without our prior written consent in each instance; or
(14) use or access the Service to build a competing service.We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce these Terms.
3. Payment; Products and Membership.
A. Payment. Certain features within the Service may require you to pay fees, including one-time fees or fees on a subscription basis, and may provide you the option to activate recurring automatic payments for recurring fees. All prices are in U.S. Dollars unless otherwise indicated. Certain Products and services may be purchased with one-time fees, while others may be offered on a subscription basis, and may provide you the option to activate recurring automatic payments for recurring fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Service, you authorize Balanced or its third-party service providers to periodically charge, until cancellation, all accrued sums. Recurring subscriptions automatically renew unless they are cancelled via a method described in the Service at least 24 hours before the end of the current subscription period.
B. Payment Processing. Payment processing services for Balanced may be provided by our third-party payment processors, which may include Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Balanced enabling payment processing services through Stripe, you agree to provide Balanced with current, accurate, and complete information about you and your payment methods (billing address, credit card number, expiration date, etc.) and you authorize Balanced to share it and transaction information related to your use of the payment processing services provided by Balanced.
C. Free Trials. Balanced may offer a free trial period during which you can use the Service for a limited period of time. You can manage or cancel the trial subscription through any methods described in the Service.
D. Products. Prices and descriptions for Products are subject to change without notice. We do not guarantee that the colors, features, specifications, and details of the Products will be accurate or free of errors, and your device’s display may not accurately reflect the actual colors and details of the Products. We may limit the sales of Products to any person, geographic region, or jurisdiction. We may limit the quantities of any Products that we offer and may discontinue any Product without notice. We do not warrant that the quality of any Products you purchase will meet your expectations. We may refuse any order you place with us. If we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address, or phone number you provide. Balanced is under no obligation to accept or fulfill an order for a Product that was advertised at an incorrect price, and we may reject or cancel those orders.
E. Shipping and Returns. All orders placed through the Site and all returns are subject to shipping and returns policies that we make available through the Site. The risk of loss and title for all Products purchased by you and shipped by us pass to you upon our delivery to the carrier for shipment. The risk of loss and title for all Products purchased by you and shipped directly by one of our vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.
4. Optional Third-Party Services. Balanced and third parties may make available integrations between the Service and third-party products or services, including plugins and related services like Instagram or Facebook (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider’s continued operation, Balanced does not warrant or provide support for Third-Party Services. Balanced is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. Balanced does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation. Depending on your location, certain Third-Party Services may not be available to you.
A. Balanced IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “Balanced IP”), is owned by Balanced and its licensors. No ownership rights in the Balanced IP are transferred to you by these Terms. You do not have any rights in or to the Balanced IP except for the limited express rights granted in these Terms.
B. Trademarks. You acknowledge that Balanced has acquired, and is the owner of, common law or registered trademark rights in the name and word mark "Balanced" and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or Balanced’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to Balanced’s benefit.
C. Feedback. If you give Balanced feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to Balanced all right, title, and interest in and to the Feedback, and Balanced is free to use the Feedback without payment, attribution, or restriction.
6. Confidentiality. In the course of providing the Service, Balanced may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by Balanced to you with respect to the business, operations, and marketing of Balanced’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is Balanced’s confidential information and you will not use or disclose such confidential information to any third party without Balanced’s prior written consent.
A. Usage Data. Balanced may collect and analyze data relating to your use of the Service that is aggregated and/or deidentified in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Balanced may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.
8. Consent to Electronic Communications.
A. Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service.
B. Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us.
C. SMS Messaging. By creating an account, you agree that Balanced may send you transactional text (SMS) messages in connection with your use of the Service. You may opt out of receiving text (SMS) messages through the Service at any time by responding “STOP”. Opting out of receiving text (SMS) messages may impact and limit your use of the Service. Please be aware that your cellular carrier may charge fees in connection with your use of the Service. You are responsible for any mobile charges that you may incur in connection with using the Service, including data charges. If you are not sure what those charges may be, you should ask your carrier before using the Service. Balanced is not responsible or liable for any fees, costs, or overage charges associated with any data charges or data plan.
9. Term and Termination.
A. Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue as long as you continue until terminated.
B. Termination. If you breach (or if Balanced suspects you have breached) these Terms, Balanced may, in its sole discretion, terminate these Terms and your Member account and/or limit, suspend, or terminate your access to the Service, with or without notice. You may terminate these Terms by contacting us at firstname.lastname@example.org.
C. Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. The following Sections of these Terms will survive termination of these Terms:1.A, 2, 5-7, 9.C, and 10-19. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.
D. Deactivation. Balanced may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). Balanced will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.
10. Disclaimer. BALANCED MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, PRODUCTS, THIRD-PARTY SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BALANCED DOES NOT WARRANT THAT THE SERVICE, PRODUCTS, OR THIRD-PARTY SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE PRODUCTS, OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 10 will apply solely to the extent permitted under applicable law. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION 10 (Disclaimer) AND SECTION 12 (Limitation of Liability) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION IS NOT TO AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
A. Defense. At Balanced’s option and request, you will defend Balanced, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “Balanced Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other Member or any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If Balanced requests you to defend a Balanced Party from any Claim, Balanced will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of a Balanced Party without Balanced’s prior written consent. Balanced may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
B. Indemnification. You will indemnify the Balanced Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against a Balanced Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by a Balanced Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.
12. Limitation of Liability.
A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BALANCED NOR ANY BALANCED PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF BALANCED IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BALANCED WILL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF YOUR RECEIPT OR PROVISION OF ANY THIRD-PARTY SERVICES.
B. DAMAGES CAP. BALANCED’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO BALANCED DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.
13. Health and Exercise Waiver. You acknowledge that participation in fitness classes via the Service may involve strength, flexibility, aerobic, cardio, and other exercises, including the use of equipment, all of which can be potentially hazardous activities. You accept full responsibility over the location where you engage in fitness classes via the Service, you acknowledge that Balanced has no control over your physical space, and that the participation in fitness activities involves additional risks, including those caused by terrain, facilities, temperature, weather, environment, vehicular traffic, lack of hydration, and actions of other people.
You are responsible for ensuring that you’re capable of safely using the Service and participating in activities with Balanced. You should consult your doctor and have a full physical before using the Service. You should especially consult your doctor if you or a member of your family has a history of illness or injuries. You should not rely on any assessments provided by Balanced or any information provided on Balanced’s Site instead of contacting your doctor, since your doctor is able to give you personalized medical advice and Balanced is not. If you have any reason to be concerned about whether you can safely participate in activities on the Service, whether based on how you feel, medication you’re taking, past injuries or health issues, or family health issues, then Balanced prohibits you from using the Service. Even if you are careful and healthy, you still may have a serious risk of illness or injury. If you start feeling sick, dizzy, lightheaded, or nauseated while using the Service, stop immediately. Participating in fitness activities comes with inherent risks. You assume all risk of injury and any health-related issue. You waive all claims, foreseen or unforeseen, anticipated or unanticipated, related to your use of the Service, against Balanced, our personnel, and our Members. In case of injury, you authorize Balanced to contact emergency services to assist you. However, we do not have a duty to take any action. You waive any claim against Balanced related to contacting emergency services. You’re responsible for paying any costs associated with any treatment you receive.
By using the Service, you: (1) agree that you are voluntarily participating in fitness classes provided via the Service; (2) hereby assume and accept all risks of physical injury or death; (3) represent that you are physically sound and do not suffer from any illness, impairment, disease, or other condition that would prevent you from participating in the fitness classes, performing any exercises, or using any equipment; and (4) knowingly and voluntarily, on behalf of yourself and your heirs and assigns, forever waive, release, discharge, and hold harmless Balanced and its subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, representatives, successors, and assigns, individually and collectively, from all liability, damages, losses, suits, demands, causes of action (including negligence), or other claims, including any losses for property damage, personal injury, or death, arising out of or relating in any way to your participation in the fitness classes provided via the Service.
A. Generally. If you are not a resident of the United States, this Section 14 (Arbitration) will only apply to you to the extent applicable law in your country of residence permits. In the interest of resolving disputes between you and Balanced in the most expedient and cost-effective manner, you and Balanced agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BALANCED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 14 WILL APPLY TO YOU AND BALANCED UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 14.J (OPT OUT).Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
B. Exceptions. Despite the provisions of Section 14.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and Balanced will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Balanced. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). Balanced’s email address for Notice is email@example.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Balanced, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or Balanced may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Balanced must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Balanced will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Balanced in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
E. Fees; Location; Language. If you commence arbitration in accordance with these Terms, Balanced will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York City, New York but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Balanced for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language.
F. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.
G. No Class Actions. YOU AND BALANCED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 14 (ARBITRATION)). Unless both you and Balanced agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
H. Modifications to this Arbitration Provision. If Balanced makes any future change to this arbitration provision, other than a change to Balanced’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Balanced’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Balanced. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
I. Enforceability. If Section 14.G (No Class Actions) is found to be unenforceable or if the entirety of this Section 14 (Arbitration) is found to be unenforceable, then the entirety of this Section 14 will be null and void and the exclusive jurisdiction and venue described in Section 18.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.
J. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 14 (Arbitration), you may opt out by notifying Balanced in writing of your decision by sending, within 30 days after the effective date of these Terms, an email to firstname.lastname@example.org, stating clearly your full name, address, and intent to opt out of this Section 14. Should you choose not to opt out within the 30-day period, you and Balanced will be bound by the terms of this Section
14. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 14, and you understand that you will not be subject to retaliation if you exercise your right to opt out.
16. Protected Activity Not Prohibited. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any international, federal, state, provincial, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Balanced. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Balanced confidential information to any parties other than the applicable government agencies.
17. Compliance with Applicable Law. You will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising your rights or performing your obligations under these Terms.
A. Subcontractors. Balanced may use subcontractors or other third parties to perform its obligations under these Terms, but Balanced will remain responsible for all such obligations.
B. Governing Law. These Terms are governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 14 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York City, New York. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
C. Injunctive Relief. If you breach Sections 2 (Accounts; Registration; Restrictions), 5 (Ownership), or 6 (Confidentiality), Balanced may suffer irreparable harm, and monetary damages may be inadequate to compensate Balanced. Accordingly, Balanced may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.
E. Assignment. You may not assign these Terms or delegate your performance without Balanced’s prior written consent, and any attempt to do so is void. Balanced may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.
F. Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.
G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
H. Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.
I. Relationship. You acknowledge and agree that these Terms are not an employment agreement, nor does it create an employment or contractor relationship, between you and Balanced; and no joint venture, partnership, or agency relationship exists between you and Balanced. As a Member, YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF BALANCED. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF BALANCED, INCLUDING BY INAPPROPRIATELY USING ANY BALANCED IP.
J. No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms.
K. Notices. All notices under these Terms must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 18.K. All notices to Balanced will be sent to:
Balanced Health Ventures, Inc.
20 Jay St,
Brooklyn, NY 11201
L. Force Majeure. Balanced will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond Balanced’s reasonable control (a “Force Majeure Event”), so long as Balanced uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Balanced to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.
M. Interpretation. If Balanced provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
19. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Members located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
20. Contact Us. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at email@example.com.