Conditions for use and Disclaimer

WOOSH5 Terms of Use

Thank you for visiting the WOOSH5 website. Please read these Terms of Use carefully before using any of our website(s), products, services or applications (the “Services”). By accessing the Services in any manner (whether automated or otherwise), you agree to be bound by these Terms of Use and any additional terms and conditions that are referenced below or otherwise may apply to specific portions or features of the Services. These Terms of Use include the provisions in this document, as well as those in the Privacy Policy.

You represent that you are legally able to accept these Terms of Use, and affirm that you are of legal age to form a binding contract. If you do not agree to these Terms of Use, you may not use the Services.

We reserve the right to change these Terms of Use at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the site or changes made for legal reasons will be effective immediately. Your continued use of the site and the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Use.

NOTE: (NOT APPLICABLE TO END USERS LOCATED IN THE EU): THESE TERMS OF USE CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “BINDING ARBITRATION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF USE AND WITH RESPECT TO ANY “DISPUTE”(AS DEFINED BELOW) BETWEEN YOU AND US OR OUR AFFILIATES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE “BINDING ARBITRATION” SECTION BELOW.

The Site Does Not Provide Psychological Advice

The contents of the WOOSH5 Services and other material contained within the WOOSH5 Services ("Content") are for informational purposes only. The Content is not intended to be a substitute for advice, diagnosis, or treatment from a physician or other health care professional. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the WOOSH5 Services.

WOOSH5 E-coaches are not licensed health care professionals and are not authorized to provide services requiring professional licensure such as psychotherapy. Your interactions with your WOOSH5 coach are not intended to be a substitute for professional health care advice, diagnosis, or treatment. WOOSH5 does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned within the Services. Reliance on any information provided by WOOSH5, WOOSH5 employees, other parties who are accessible to you via the Services at the invitation of WOOSH5, other users of the Services, or affiliates of WOOSH5 is solely at your own risk.

If you think you may have a medical emergency, call your doctor or your local emergency number immediately.

Concierge Scheduling Services

Through WOOSH5’s concierge scheduling services, the site merely offers tools, resources and a venue to facilitate the introduction to our E-coaches of those seeking training and coaching services. You understand and agree that WOOSH5: (A) does not direct, have any control over, employ, recommend or endorse any Care Providers and has no control over the acts or omissions of any Care Providers; (B) is not responsible or liable in any manner for the performance or conduct of any Care Providers; (C) makes no representations, warranties or guarantees about the quality, safety or legality of the services provided by any Care Provider, the qualifications, identity or background of any Care Providers or about your interactions or dealings with any Care Providers; (D) does not vet, screen or conduct any kind of identity or background checks of any Care Providers; and (E) is not responsible for payment for services furnished by any Care Provider. You should exercise caution and perform your own screening before connecting with anyone through the site. To the extent permitted by law, WOOSH5 hereby expressly disclaims, and you hereby expressly release WOOSH5 from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with Care Providers, including without limitation any acts and/or omissions of Care Providers or payment disputes. By using WOOSH5’s concierge scheduling services, you acknowledge and agree that you are solely responsible for your use of these services, the site and the connections you make and that, to the extent permitted by law, ALL SUCH USE IS AT YOUR SOLE AND EXCLUSIVE RISK.

Rules of Conduct

There are a few rules of conduct that you are required to follow when you use the Services:

  • Do not "harvest" (or collect) information from the Services using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the Services and information about the offerings, products, services and promotions available through the Services.
  • Do not use automated means to access the Services, or gain unauthorized access to the Services or to any account or computer system connected to the Services.
  • Do not “Crawl,”“scrape,” or “spider” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means).
  • Do not "stream catch" (download, store or transmit copies of streamed content).
  • Do not obtain, or attempt to obtain, access to areas of the Services or our systems that are not intended for access by you.
  • Do not "flood" the Services with requests or otherwise overburden, disrupt or harm the Services or its systems.
  • Do not circumvent or reverse engineer the Services or its systems.
  • Do not restrict or inhibit another user or users from using and enjoying the Services.
  • If you post something to the Services, such as comments or other content, do not post anything that:
    • infringes any third party intellectual property right (such as copyrights),
    • is defamatory (i.e., something that is negative and untrue about another person or entity),
    • divulges another person's or entity's confidential or private information or trade secret,
    • is fraudulent, unlawful, threatening, harassing, abusive, obscene, or discriminatory,
    • do not encourage criminal conduct,
    • advertises or solicits business for products or services other than those that are offered and promoted on the Services, or
    • contains any virus, malware, spyware or other harmful content or code.

You also must comply with all applicable laws and contractual obligations when you use the Services.

Privacy

WOOSH5 takes the privacy of its users very seriously. For the current WOOSH5 Privacy Policy, please click here.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at hello@joyable.com

Ownership of Content

We or our licensors or partners own the intellectual property rights in the content and materials displayed on the Services. You may use the Services (including such content and materials) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Services unless explicitly authorized in these Terms of Use or by the owner of the materials.

Community Forums and User Submissions

If you submit or post any materials or content to this site, you grant us and our affiliates a royalty free, perpetual, irrevocable, transferrable, assignable, sub-licensable, worldwide license to use such materials and content, including alterations thereof, for our business purposes, in any form, in any media, and via any technology we choose, whether it exists now or is created in the future. You represent that any materials and content posted or otherwise submitted by you to the site is original to you and that you have the right to grant us these rights.

To avoid any disputes between us relating to ideas that you have submitted to us you agree that, if you send us your ideas, you are giving us the right to use them, and you waive and release us from claims that we have used your ideas without your permission.

Responsibility for Public Postings and Content

WOOSH5 may offer community forums where users can share information and support one another. Since these forums will be open to other users and, in certain instances, to the public, they should not be considered private.

Any information you share in any online community area including a chat room, or online discussion is by design open to the public and is not private. You should think carefully before posting any personal or sensitive information in any community forum or chat room. What you post can be seen, disclosed to or collected by third parties and may be used by others in ways we cannot control or predict, including to contact you for unauthorized purposes. As with any public forum on any site, the information you post may also show up in third-party search engines.

Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. The Services may permit you to share User Submissions either directly with another user, with a limited set of users, or with a general audience via the public forums. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that our use of your User Submissions is subject to our Privacy Policy to the extent your User Submissions contain personally-identifiable information. You represent that any User Submissions posted or otherwise submitted by you to the Services is original to you and that you have the right to grant us these rights.

For all User Submissions, you hereby grant WOOSH5 a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.

If you store a User Submission in your own personal WOOSH5 account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant WOOSH5 the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.

If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to your WOOSH5 coach or to one or more other WOOSH5 users in a community group)(a “Limited Audience User Submission”), then you grant WOOSH5 the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view (a “Public User Submission”), then you grant WOOSH5 the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all WOOSH5 users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with WOOSH5’s business, provided that WOOSH5 will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that the licenses you grant are royalty-free, perpetual, sub-licensable, irrevocable, and worldwide, provided that when you delete your WOOSH5 account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from WOOSH5’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.

Finally, you understand and agree that WOOSH5, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

To avoid any disputes between us relating to ideas that you have submitted to us you agree that, if you send us your ideas, you are giving us the right to use them, and you waive and release us from claims that we have used your ideas without your permission.

Responsibility for Public Postings and Content
Responsibility for what is posted in public areas of our Services lies with each user - you alone are responsible for the material you post or otherwise make available in public areas of our Services. You alone are responsible for assessing the credibility of other user postings. We do not control the material that you or others may post or otherwise make available in such areas, and you understand that we have no obligation to monitor any such material or to edit or delete it. However, we reserve the right do so. We are not a publisher of user posts, and we are not responsible for their accuracy or legality.

You also understand and agree that any action or inaction by us or any of our directors, officers, stockholders, employees, consultants, agents or representatives (collectively, "Our Representatives") to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential Terms of Use violation is undertaken voluntarily and in good faith, and you expressly agree that neither we nor any of Our Representative shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of these Terms of Use.

Your interactions with organizations and/or individuals found on or through the Services are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any of these third parties. You agree that WOOSH5 shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site, or between users and any third party, you agree that WOOSH5 is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release WOOSH5, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favour at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."

Site Registration and Log In
To access certain features or areas of the Services, you may be required to provide personal and/or demographic information as part of a site registration or log-in process. In addition, certain features of our Services are only available to our customers, and to access those areas of the Services you will be required to log in using your username or email and password.

You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (this includes your contact information, so that we can reliably contact you). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information.

You are responsible for all activity occurring when is the Services are accessed through your account, whether authorized by you or not. Therefore, if you create an account, be sure to protect the confidentiality of your account password. We are not liable for any loss or damage arising from your failure to protect your password or account information.

Text Messages and Electronic Communications
As part of the Services, to the extent you have provided your consent, you may receive communications through the Services, including messages that WOOSH5 sends you (for example, via text message) regarding information we think may be of interest to you. Please review our Privacy Policy for further information on our promotional communications and privacy practices with respect to personal information that you submit through the Services.

The communications between you and us via the Services use electronic means, whether you use the Services or send us an email or text message, or whether we post notices on the Services or communicate with you via email or text message. For contractual purposes, you consent to receive communications from us in an electronic form (but this is without prejudice to your data protection rights and our obligations with respect to electronic marketing communications under the WOOSH5 Privacy Policy), and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.

Copyright Infringement Notices

We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed on the Services in a manner that constitutes copyright infringement, please include the following information in your written notice: (1) a detailed description of the copyrighted work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the site; (3) your contact information, including your address, telephone number, and, if available, email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner's behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner's behalf to assert infringement of copyright and to submit the statement. Please note that the contact information provided in this paragraph is for suspected copyright infringement only. Contact information for other matters is provided elsewhere in these Terms of Use or on the site.

Changes to the Services

We reserve the right to make changes to, or to suspend or discontinue (temporarily or permanently), any portion of the Services. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.

Suspension or Termination of Access

We have the right to deny access to, and to suspend or terminate your access to, the Services, or to any features or portions of the Services, and to remove and discard any content or materials you have submitted to the Services, at any time and for any reason, including for any violation by you of these Terms of Use. In addition, we have a policy of terminating the Services usage privileges of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by the Terms of Use that were in effect as of the date of your suspension or termination.

Linking Policies

The Services may contain links to other websites or to third party sellers of products and services. Such links are provided for your convenience only, and you access them at your own risk. We are not responsible for, and do not endorse, the content of any such sites, or the products and services sold on them, nor do we take responsibility for the accuracy of any such sites. When you visit a linked site you should read the terms of use and privacy policy that govern that particular linked site.

We welcome links to the Services so long as: (i) the WOOSH5 website opens in a new browser window which displays the full version of a page of the WOOSH5 website (e.g., not merely one of its frames, and not an "in-line" link to a particular image or object on this site), (ii) the link to this does not state or imply any sponsorship of your website or service by us or by the Services; and (iii) the WOOSH5 website is not display framed within or obfuscated by other content. You may not use on your site any trademarks, service marks or copyrighted materials appearing on the Services, including but not limited to any logos, without our express written consent. We reserve the right to revoke your right to link to the Services upon notice. If you receive such a notice from us, you agree to discontinue your link to the Services.

Payments and Billing

Your use of the Services may be subject to payments now or in the future, depending on the type of account you register with WOOSH5. You agree to pay all applicable fees associated with your use of the Service.

If your WOOSH5 account is sponsored by your employer or another entity (such as an insurance provider or benefits company) (a “Sponsor”), your use of the Services may be free or subject to a discount, but we reserve the right to charge our standard pricing for certain or all Services in the future. If your relationship with your Sponsor terminates or if our arrangement with your Sponsor terminates or expires, you must pay all applicable fees in accordance WOOSH5’s then-current standard pricing in order to continue using the Services.

Using the WOOSH5 App

These Terms of Use apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

  • (a) Both you and WOOSH5 acknowledge that the Terms of Use are concluded between you and WOOSH5 only, and not with Apple, and that Apple is not responsible for the Application or the Content;
  • (b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Use as they are applicable to the Services;
  • (c) You will only use the Application in connection with an Apple device that you own or control;
  • (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
  • (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
  • (f) You acknowledge and agree that WOOSH5, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
  • (g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, WOOSH5, and not Apple, will be responsible for the investigation, defence, settlement and discharge of any such infringement claim;
  • (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “ terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
  • (i) Both you and WOOSH5 acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
  • (j) Both you and WOOSH5 acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as the third party beneficiary hereof.

Indemnification

You agree to indemnify, defend and hold us and our affiliates, and our respective directors, officers, employees and agents, harmless from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees, arising from your use of the Services, your User Submissions, or any violation of these Terms of Use, or applicable law, by you or by someone accessing the Services via your account, except to the extent that you are not required to so indemnify those persons under applicable law. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defence and hold harmless obligation will survive these Terms of Use and the termination of your use of the Services.

Jurisdictional Issues

We control and operate the Services from our facilities in the United States of America, and unless otherwise specified, the materials displayed on the Services are presented solely for the purpose of promoting products and services available in the United States, its territories, possessions, and protectorates. We do not represent that materials on the Services are appropriate or available for use in other locations. If you choose to access the Services from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.

Applicable Law; No Waiver; Severability

These Terms of Use, and the relationship between you and us, will be governed by the laws of the United States and the State of California, without giving effect to any principles of conflicts of law. Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavour to give effect to intentions as reflected in the provision, and the other provisions of these terms and conditions will remain in full force and effect.

Binding Individual Arbitration (not applicable to end users located in the EU)
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and us or any of our afiliates regarding the Services, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

Exclusions from Arbitration.
YOU AND US AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION. Notwithstanding anything to the contrary, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).

RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO WOOSH5 INC, 1207 Melfort Drive Houston TX 77077 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND(4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.

Notice of Dispute.
IF YOU HAVE A DISPUTE WITH US OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE TO WOOSH5 INC, 1207 Melfort Drive Houston TX 77077 TO GIVE US OR OUR AFFILIATE THE MESSAGE YOU HAVE A DISPUTE WITH WOOSH5 TO HAVE THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If we, or our affiliate you have a Dispute with, does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, us or our affiliate you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section.

Class Action Waiver.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.

Initiation of Arbitration Proceeding/Selection of Arbitrator.
Unless you and WOOSH5 agree otherwise in writing, arbitration shall (1) be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures then in effect (the “JAMS Rules”) and as modified by this agreement to arbitrate, including the rules regarding filing, administration, discovery, and arbitrator fees; (2) be conducted by a single, neutral arbitrator; and (3) take place in the county where you reside. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply. 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 claim. The JAMS Rules are available on its website athttp://www.jamsadr.com/rules-streamlined-arbitration/. Notwithstanding any JAMS Rules to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern, you and WOOSH5 each agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that only a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.

Arbitration Procedures.
If your claim does not exceed $5,000, you and WOOSH5 agree to waive an oral hearing by the arbitrator and the arbitration will be conducted solely on the basis of documents you and WOOSH5 submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. To the extent an oral hearing is requested by you or WOOSH5, or deemed necessary by the arbitrator, you and WOOSH5 agree that the hearing will be conducted by telephone or video.

Severability.
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and the entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.

Continuation.
This Section shall survive any termination of these Terms of Use or the provision of the associated services to you.

Governing Jurisdiction (not applicable to end users located in the EU)
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN, RESPECTIVELY, SAN FRANCISCO COUNTY, CALIFORNIA, OR THE NORTHERN DISTRICT OF CALIFORNIA . EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THESE COURTS AND AGREES NOT TO COMMENCE ANY LEGAL ACTION UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS OF USE IN ANY OTHER COURT OR FORUM. EACH PARTY WAIVES ANY OBJECTION TO THE LAYING OF THE VENUE OF ANY LEGAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS OF USE IN THE FEDERAL OR STATE COURTS SITTING IN SAN FRANCISCO COUNTY, CALIFORNIA, AND AGREES NOT TO PLEAD OR CLAIM IN SUCH COURTS THAT ANY SUCH ACTION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Jurisdiction (end users located in the EU only)
You agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or difference arising out of or in connection with these terms of service.

Disclaimer of Warranties
THE SERVICES AND CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. WE PROVIDE THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY, TERMS OR CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS THAT WE MAKE NO PROMISES THAT:

  • THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME,
  • THE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
  • THE INFORMATION ON THE SERVICES WILL BE ACCURATE OR UP-TO-DATE,
  • THE SERVICES OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
  • INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE SERVICES WILL REMAIN RETREIVABLE AND UNCORRUPTED, OR
  • THE SERVICES WILL BE UNITERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.

YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SERVICES IS ACCURATE AND UP-TO-DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SERVICES, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SERVICES. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE SERVICES OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO OUR SERVICES BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.

THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE SERVICES, AND ANY OF THEIR EMPLOYEES AND AGENTS.

Limitations of Liability

IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THE SERVICES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. NOTHING IN THESE TERMS AFFECTS OR LIMITS YOUR STATUTORY RIGHTS.

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND ANY LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, IN EACH CASE WHETHER DIRECT OR INDIRECT) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES (OR THE CONTENT, MATERIALS AND FUNCTIONS PROVIDED AS PART OF THE SERVICES), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT OR STATUTORY LIABILITY, EVEN IF WE KNEW, SHOULD HAVE KNOWN OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING AND WITHOUT LIMITING THE FOREGOING, TO THE EXTENT PERMITTED BY LAW YOU AGREE THAT OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OF ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY RELATING TO THE USE OF THE SERVICES, WILL NOT EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO US, IF ANY, FORUSE OF THE SERVICES, OR, IF APPLICABLE, FOR USE OF THE SPECIFIC FEATURE OF THE SERVICES FROM WHICH THE CLAIM IN QUESTION FIRST AROSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IS LIMITED TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTIONS.

Various
These Terms of Use, together with any additional terms and conditions that are referenced herein or otherwise may apply to specific features or portions of the Services, constitute the entire agreement between us and you with respect to the Services. This agreement is personal to you and you may not assign it or any of your rights under it to anyone (by operation of law or otherwise) without WOOSH5 ’s prior written consent. We may transfer, assign, or delegate these Terms of Use and our rights and obligations without consent.

If any provision of these Terms of Use is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions. Except as expressly set forth in the section above regarding the Apple Application ,these Terms of Use are not intended to benefit any third party, and do not create any third party beneficiaries. Accordingly, these Terms of Use may only be invoked or enforced by you or us.

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO USE OF THE SERVICES, OR THESE TERMS OF USE, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR BE PERMANENTLY BARRED.

Updated: January 2018

 

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