Effective Date: 23 Feb 2019
Last Updated Date: 23 Feb 2019
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT SARGE FITT’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 5.5 BELOW.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. USE OF THE SERVICES AND SARGE FITT PROPERTIES. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (each, a “SARGE FITT Property” and collectively, the “SARGE FITT Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, SARGE FITT grants you a limited license to reproduce portions of SARGE FITT Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by SARGE FITT in a separate license, your right to use any and all SARGE FITT Properties is subject to the Agreement.
1.1 Updates. You understand that SARGE FITT Properties are evolving. As a result, SARGE FITT may require you to accept updates to SARGE FITT Properties
that you have installed on your computer or mobile device. You acknowledge and agree that SARGE FITT may update SARGE FITT Properties with or without notifying you. You may need to update third-party software from time to time in order to use SARGE FITT Properties.
1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease,
transfer, assign, reproduce, distribute, host or otherwise commercially exploit SARGE FITT Properties or any portion of SARGE FITT Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other SARGE FITT Properties (including images, text, page layout or form) of SARGE FITT; (c) you shall not use any metatags or other “hidden text” using SARGE FITT’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of SARGE FITT Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access SARGE FITT Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of SARGE FITT Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in SARGE FITT Properties. Any future release, update or other addition to SARGE FITT Properties shall be subject to the Agreement. SARGE FITT, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any SARGE FITT Property terminates the licenses granted by SARGE FITT pursuant to the Agreement.
1.3 Third-Party Materials. As a part of SARGE FITT Properties, you may have access to materials that are hosted by another party. You agree that it is
impossible for SARGE FITT to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access certain features of SARGE FITT Properties you may be required to become a Registered User. For
purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”).
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as
prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using SARGE FITT Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of SARGE FITT Properties by minors. You may not share your Account or password with anyone, and you agree to notify SARGE FITT immediately of any unauthorized use of your password or any other breach of security; and exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or SARGE FITT has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, SARGE FITT has the right to suspend or terminate your Account and refuse any and all current or future use of SARGE FITT Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. SARGE FITT reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use SARGE FITT Properties if you have been previously removed by SARGE FITT, or if you have been previously banned from any of SARGE FITT Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in
your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of SARGE FITT.
3.1 SARGE FITT Properties. Except with respect to Your Content and User Content, you agree that SARGE FITT and its suppliers own all rights, title and
interest in SARGE FITT Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a SARGE FITT game client, and SARGE FITT game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any SARGE FITT Properties.
3.2 Trademarks. and all related graphics, logos, service marks and trade names used on or in connection with any SARGE
FITT Properties or in connection with the Services are the trademarks of SARGE FITT and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in SARGE FITT Properties are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to SARGE FITT through its suggestion, feedback, forum or
similar pages (“Feedback”) is at your own risk and that SARGE FITT has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SARGE FITT a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of SARGE FITT Properties and/or SARGE FITT’s business.
4. THIRD-PARTY SERVICES.
4.1 Third-Party Websites, Applications and Ads. SARGE FITT Properties may contain links to third-party websites (“Third-Party Websites”) and
advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left SARGE FITT Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of SARGE FITT. SARGE FITT is not responsible for any Third-Party Websites or Third-Party Ads. SARGE FITT provides these Third-Party Websites and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
5. FEES AND PURCHASE TERMS.
5.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge
is due and payable. You must provide SARGE FITT with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing SARGE FITT with your credit card number or PayPal account and associated payment information, you agree that SARGE FITT is authorized to immediately invoice your Account for all fees and charges due and payable to SARGE FITT hereunder and that no additional notice or consent is required. You agree to immediately notify SARGE FITT of any change in your billing address or the credit card or PayPal account used for payment hereunder. SARGE FITT reserves the right at any time to change its prices and billing methods, either immediately upon posting on SARGE FITT Properties or by e-mail delivery to you. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or any right to dispute such charges will be deemed waived. Billing disputes should be directed to the following e-mail address: email@example.com.
5.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time
you create your Account and select your monthly package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and SARGE FITT for the Services until SARGE FITT accepts your order by a confirmatory e-mail.
5.3 Taxes. The payments required under Section 5.2 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided
under this Agreement. If SARGE FITT determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, SARGE FITT shall collect such Sales Tax in addition to the payments required under Section 5.2 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to SARGE FITT, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify SARGE FITT for any liability or expense SARGE FITT may incur in connection with such Sales Taxes. Upon SARGE FITT’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.4 Withholding Taxes. You agree to make all payments of fees to SARGE FITT free and clear of, and without reduction for, any withholding taxes. Any such
taxes imposed on payments of fees to SARGE FITT will be your sole responsibility, and you will provide SARGE FITT with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
5.5 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription
period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at SARGE FITT’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from SARGE FITT that your subscription will be automatically renewed, you will have thirty (30) days from the date of the SARGE FITT notice). If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact SARGE FITT via email at firstname.lastname@example.org. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize SARGE FITT to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if SARGE FITT does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that SARGE FITT may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
5.6 Product Descriptions. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to
change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.
5.7 Shipments. SARGE FITT currently only ships products to addresses within the 48 contiguous United States. When you place an order, we will confirm your
address by sending an email to the email address you provided when you placed your order. Your placement of an order through our Websites or Apps is an offer to purchase the products and/or services ordered and we may accept your order by processing your payment and shipping the products or making available your purchased services. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by SARGE FITT until the product(s) has been shipped or service(s) made available. If some of products in your order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order.
5.8 Returns. A product is deemed irrevocably accepted upon your use of the product. You may return purchased products in accordance with our Return Policy,
available at (add return policy link here).
5.9 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the
specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact SARGE FITT to have the charges reversed.
5.10 Advertising Revenue. SARGE FITT reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services,
and you acknowledge and agree that SARGE FITT has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by SARGE FITT as a result of such advertising).
5.11 Third Party Provider. SARGE FITT uses Stripe as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and
6. CLASS CANCELLATION. You acknowledge and agree that all FITT Fam Classes must be cancelled or rescheduled at least twenty-four (24) hours prior to the start of class. For those classes cancelled before the 24-hour window, you will receive a class credit to be used for a FITT Fam Class at a future date; no refunds will be issued. All cancellations made after the 24-hour window will be considered a late cancel, and you will be charged for the full price of the missed FITT Fam class; if you do not show up for the class, you will also be charged full price. In the case of late cancellations and no-shows, you will not receive a class credit towards a future FITT Fam class.
7. INDEMNIFICATION. You agree to indemnify and hold SARGE FITT, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “SARGE FITT Party” and collectively, the “SARGE FITT Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any SARGE FITT Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. SARGE FITT reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SARGE FITT in asserting any available defenses. This provision does not require you to indemnify any of the SARGE FITT Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to SARGE FITT Properties.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SARGE FITT
PROPERTIES IS AT YOUR SOLE RISK, AND SARGE FITT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SARGE FITT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) SARGE FITT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SARGE FITT PROPERTIES WILL MEET YOUR
REQUIREMENTS; (2) YOUR USE OF SARGE FITT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SARGE FITT PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SARGE FITT PROPERTIES IS ACCESSED AT YOUR OWN
RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SARGE FITT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SARGE FITT MAKES NO WARRANTY,
REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SARGE FITT OR THROUGH SARGE FITT PROPERTIES
WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SARGE FITT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT
TO SEEK TO HOLD SARGE FITT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
9. LIMITATION OF LIABILITY.
9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SARGE FITT PARTIES BE LIABLE FOR ANY LOSS OF
PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SARGE FITT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SARGE FITT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SARGE FITT PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SARGE FITT PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SARGE FITT PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO SARGE FITT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SARGE FITT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SARGE FITT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SARGE FITT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SARGE FITT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL
AMOUNT PAID TO SARGE FITT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SARGE FITT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SARGE FITT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SARGE FITT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN
BETWEEN SARGE FITT AND YOU.
10.1 Violations. If SARGE FITT becomes aware of any possible violations by you of the Agreement, SARGE FITT reserves the right to investigate such
violations. If, as a result of the investigation, SARGE FITT believes that criminal activity has occurred, SARGE FITT reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. SARGE FITT is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in SARGE FITT Properties, including Your Content, in SARGE FITT’s possession in connection with your use of SARGE FITT Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of SARGE FITT, its Users or the public, and all enforcement or other government officials, as SARGE FITT in its sole discretion believes to be necessary or appropriate.
10.2 Breach. In the event that SARGE FITT determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise
demonstrated conduct inappropriate for SARGE FITT Properties, SARGE FITT reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to SARGE FITT) that you have violated the Agreement;
(b) Discontinue your registration(s) with any of SARGE FITT Properties, including any Services or any SARGE FITT community;
(c) Discontinue your subscription to any Services; and/or
(d) Pursue any other action which SARGE FITT deems to be appropriate.
11. TERM AND TERMINATION.
11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you
use SARGE FITT Properties, unless terminated earlier in accordance with the Agreement.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you
first used SARGE FITT Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any SARGE FITT Properties, unless earlier terminated in accordance with the Agreement.
11.3 Termination of Services by SARGE FITT. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date,
for any Services hereunder, to cancel such Service, in which case SARGE FITT will refund your Service Subscription Fee, if already paid pursuant to Section 5.2 or 5.3, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if SARGE FITT is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), SARGE FITT has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in SARGE FITT’s sole discretion and that SARGE FITT shall not be liable to you or any third party for any termination of your Account.
11.4 Termination of Services by You. If you want to terminate the Services provided by SARGE FITT, you may do so by (a) notifying SARGE FITT at any
time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to SARGE FITT’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 5.5.
11.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all
Services also includes deletion of your password and all related information associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. SARGE FITT will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.6 No Subsequent Registration. If your registration(s) with or ability to access SARGE FITT Properties, or any other SARGE FITT community is
discontinued by SARGE FITT due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access SARGE FITT Properties or any SARGE FITT community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those SARGE FITT Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, SARGE FITT reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with SARGE FITT and limits the manner in which you can seek relief from us.
12.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products
sold or distributed through the Website, or to any aspect of your relationship with SARGE FITT, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or SARGE FITT may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
12.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an
arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent ATTN: Juan Biddix Jr., 1007 Anderson Place SE, Washington DC 20032. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, SARGE FITT will pay them for you. In addition, SARGE FITT will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b)
resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SARGE FITT. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4 Waiver of Jury Trial. YOU AND SARGE FITT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A
TRIAL IN FRONT OF A JUDGE OR A JURY. You and SARGE FITT are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST
BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the District of Columbia. All other claims shall be arbitrated.
12.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt
out to: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your SARGE FITT username (if any), the email address you used to set up your SARGE FITT account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7 Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or
unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SARGE FITT.
12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if SARGE FITT makes any future material change to this
Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing SARGE FITT at the following address: 1007 Anderson Place SE, Washington DC 20032.
13. GENERAL PROVISIONS.
13.1 Electronic Communications. The communications between you and SARGE FITT may take place via electronic means, whether you visit SARGE FITT
Properties or send SARGE FITT e-mails, or whether SARGE FITT posts notices on SARGE FITT Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from SARGE FITT in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SARGE FITT provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
13.2 Release. You hereby release SARGE FITT Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind,
including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of SARGE FITT Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of SARGE FITT Properties.
13.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you
without SARGE FITT’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. SARGE FITT shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not
limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to SARGE FITT Properties, please contact us at:
firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SARGE FITT agree that all
claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the District of Columbia.
13.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE
DISTRICT OF COLUMBIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
13.8 Notice. Where SARGE FITT requires that you provide an e-mail address, you are responsible for providing SARGE FITT with your most current e-mail
address. In the event that the last e-mail address you provided to SARGE FITT is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, SARGE FITT’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SARGE FITT at the following address: 1007 Anderson Place SE, Washington, DC 20032. Such notice shall be deemed given when received by SARGE FITT by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
13.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as
possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.11 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Agreement