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These Terms of Service (the “Agreement”) set out the terms on which FitNow, Inc., an Everyday Health company doing business as Lose It! (“Lose It!” "Everyday Health" or “we”) will provide Lose It! software and services on the Lose It! website, AscendApp.com, and other Lose It! controlled or operated websites and through Lose It!'s mobile device applications (collectively, the “Service”) to you, a user of the Service (“You” or “User”), as well as the benefit of this Agreement to any Lose It! officer, director, employee or agent of Lose It! or corporate entity affiliated with Lose It! (each, a “Lose It! Affiliate”).
By providing Your email address and creating an account as a User of the Service, or by otherwise using the Service, You agree to comply with and be bound by this Agreement, which we may change at any time by posting notice on the Service. Users bound by this Agreement include both those using Lose It! for their own diet and exercise goals (sometimes referred to as “Individual Users”) and coaches using Lose It! to provide coaching services and advice to others (referred to as “Coaches”). PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES. If You do not agree to these terms and conditions, please do not use the Service.
If You register as a User, You represent and warrant to Lose It! that: (i) You are of legal age to form a binding contract; (ii) You will provide Lose It! with accurate, current and complete registration information; and (iii) Your registration and Your use of the Service is not prohibited by law. Lose It! reserves the right to suspend or terminate Your registration, or Your access to this Service, with or without notice to You, in the event that You breach any term of this Agreement.
The Service is not directed at Users under the age of 18. If You are under the age of 18, You are not permitted to register as a User or use the Service.
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the Service or used by Lose It! to operate the Service, excluding any User Content (as defined below) is proprietary to us or to third parties.
The mark “FitNow” is an unregistered trademark and the mark “Lose It!” is a registered trademark; both are marks of Lose It! or Lose It! Affiliate, and they may not be used in connection with any service or products other than those provided by Lose It!, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Lose It!. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Prohibited Activities
The Sites and the Services are not intended for children under the age of 18 (or applicable age in your country), and children under 18 (or applicable age in your country) should not use the Sites or the Services. You acknowledge and agree that the Sites and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws and are the sole property of Everyday Health, its Licensors, or our content providers. Unless otherwise specified in writing, the Services are for your personal and non-commercial use. In connection with your use of the Sites and/or the Services, you acknowledge and agree that you will not:
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, INFORMATION OR MATERIALS PROVIDED BY EVERYDAY HEALTH TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
The information You submit to us as part of Your registration, and any data, photographs, text, graphics, video, and other material that You submit or post to Lose It!, including genetic test results (“User Content”), remain Your intellectual property, and Lose It! does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Notwithstanding the foregoing, You agree that Lose It! may retain copies of all registration information and User Content and use such information and User Content as reasonably necessary for or incidental to its operation of the Service and as described in the Agreement and the Lose It! Privacy Policy, and You grant Lose It! the non-exclusive, worldwide, transferable, perpetual, irrevocable right to publish, distribute, publicly display and perform the User Content in connection with the Service and as provided for in the Lose It! Privacy Policy.
Subject to the terms of this Agreement, Lose It! authorizes You to use the Service for Your personal, non-commercial purposes. The Service includes certain premium features and services that Lose It! offers for a fee (“Premium Services”); You are only authorized to use Premium Services if You have paid the applicable fees. You may not remove any copyright, trademark or other proprietary notices that have been placed in the Service. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Service, or any portion of the Service, is strictly prohibited without the prior written permission of Lose It!. The Service is licensed, not sold, and You obtain no rights in any copy of software related to the Service other than the rights described in this paragraph.
You agree, and represent and warrant, that Your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, You agree that You will comply with all applicable laws, regulations and ordinances relating to the Service or Your use of it, and You will be solely responsible for Your own individual violations of any of any such laws.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
We retain the right to implement any changes to the Service (whether to unpaid or Premium Services) at any time, with or without notice. You acknowledge that a variety of Lose It! actions may impair or prevent You from accessing the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Lose It! has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to You, any content or services.
6.1 Fees and Premium Services
If You purchase any Premium Services, either on a one-time or subscription basis, You will pay Lose It! the applicable fees and any related taxes (other than taxes on Lose It!'s income). Lose It! may change its fees at any time by publishing written notice on the Service. You authorize Lose It! to charge the applicable fees to the payment card that You submit to Lose It!, and agree that Lose It! and any Lose It! Affiliate may store Your payment card information. You will pay all fees and taxes as they become due. Your obligation to pay fees continues through the end of the subscription period during which You cancel Your subscription. If Your payment card issuer or bank does not honor charges You have paid using Your card, You will remain directly liable to Lose It! for all unpaid amounts. If You fail to pay applicable fees, Lose It! reserves the right to charge interest at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You may cancel Your Premium Services here. You also acknowledge that Premium Services are subject to this Agreement and any additional terms related to the provision of the Premium Service.
Nonpayment of any fees or other sums due to Lose It! or any other party related to Your use of the Service will result in Service termination. We may, at our discretion, also appoint an outside debt collection agency to collect amounts owed to us. You agree to reimburse us for all costs that we incur in enforcing our collection of Your unpaid amounts, including debt collection agency fees, reasonable attorneys' and legal fees and court costs.
All overcharges or billing disputes must be reported within 30 days of the time that the dispute occurred. If You dispute a charge to Your payment card issuer that, in our reasonable judgment, is a valid charge under the provisions of this Agreement, You agree to pay us an additional charge (“Administration Charge”) to investigate the matter. We will refund any such Administration Charge if our investigation finds that Your action in disputing the charge to Your card issuer was justified because the charge was not valid under the provisions of this Agreement.
For the purposes of our lifetime Premium subscription, lifetime constitutes 100 years or until the date FitNow, Inc. ceases to commercially offer the Products.
6.2 Automatic Renewal Options
By signing up for certain subscriptions, You agree that Your subscription will be automatically renewed. Unless You cancel Your subscription, You authorize us to charge Your payment method for the renewal term. The period of auto-renewal will be the same as Your initial subscription period unless otherwise disclosed to You at the time of subscription purchase. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless we notify You of a rate change prior to Your auto-renewal. You must cancel Your subscription in accordance with the cancellation procedures disclosed to You for the particular subscription. We will not refund fees that may have accrued to Your account and will not prorate fees for a canceled subscription. From time to time, we may offer a free trial subscription for a service. If You register for a free trial subscription, we will begin to bill Your account when the free trial subscription expires, unless You cancel Your subscription before that time.
6.3 Refund Policy
Lose It! offers refunds on Google Play and web subscriptions within 35 days of purchase. All Lifetime purchases are non-refundable. Purchases made through Apple are only refundable by Apple.
A number of Service features, such as the feature allowing You to share diet information with friends, and any chat areas and blogs, offer opportunities for sharing information with others (the “Interactive Features”). Lose It! does not edit or control User Content that You and other Users post to or distribute through the Interactive Features, and will not be in any way responsible or liable for User Content. Lose It! does not vet or control the Users or other individuals that use the Service or Interactive Features. Lose It! shall not be liable for any loss or damage that any person may suffer as a result of using Interactive Features. All Users use the Interactive Features at their own risk. Users should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world.
No User of any Interactive Feature shall:
No User of this Service shall submit, upload to, distribute through or otherwise post to the Lose It! website (including any Interactive Feature) any material that:
Neither You nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the Service or User Content, or otherwise access the Service or Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Service or User Content by machine based or automated means.
Lose It! reserves the right (but is not obligated) to do any or all of the following:
Lose It! and Lose It! Affiliates have no liability or responsibility to Users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.
The Lose It! website may contain links to third party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Lose It!. You should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any of these third parties.
Lose It! is pleased to hear from You and welcomes Your comments about the Service. In the event that You submit ideas or suggestions for the Service (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of Lose It!. None of the Service Comments will be subject to any obligation of confidence on the part of Lose It!, and Lose It! and Lose It! Affiliates will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Lose It! will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
You acknowledge that Your diet and exercise activities involve risks, which may involve risk of bodily injury or death, and that You assume those risks. You should consult a licensed/certified healthcare professional prior to beginning or modifying any diet or exercise program that You undertake, and You acknowledge that Lose It! has advised You of the necessity for obtaining such consultations. The Service should not be used by pregnant women. The Service is a source of information, but it does not provide medical advice. Lose It! makes no representation that Lose It! is a provider of medical services as defined by federal and state laws and regulations pertaining to medical providers and other health care related matters, or that Lose It! has any obligations with respect to (a) the appropriateness of Your engaging in a weight loss program; (b) the results (or lack of results) obtained by Your use of the Services; and (c) any health-related matters arising in connection with Your use of Lose It!. In no event shall Lose It! be liable for any death or bodily injury that You suffer, or that You cause to any third party, in connection with Your use of the Service or any diet, exercise or other activity You undertake in connection with Your use of the Service.
Use of Coaches: Lose It! does not screen or test Coaches nor verify the qualifications or experience of any Coach, and Lose It! is not responsible for any advice, recommendation, act or omission of any Coach. If You use a Coach in connection with the Service, You do so at Your own risk. You accept the responsibility of verifying whether the Coach is appropriately qualified or experienced and of determining for Yourself whether You should follow any advice or suggestions from the Coach.
Coaches: You shall only act as a Coach if You have appropriate skills, experience and qualifications to do so. If You provide coaching services to any Individual User, You agree that Lose It! is not responsible or liable for any act or omission of the Individual User or for the fitness of an Individual User to receive coaching services. Lose It! does not screen Individual Users and is not responsible for determining whether an Individual User is prepared for or medically fit for a diet or exercise regime.
Warranties. WITHOUT LIMITATION OF THE FOREGOING, LOSE IT! AND LOSE IT! AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SERVICE OR USER CONTENT. THE SERVICE AND USER CONTENT ARE PROVIDED IN “AS-IS” CONDITION, AND LOSE IT! AND LOSE IT! AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED TO THE EXTENT PERMITTED BY LAW, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICE AND USER CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICE AND USER CONTENT, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR THE USER CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LOSE IT! OR ANY LOSE IT! AFFILIATE OR THROUGH THE SERVICE OR USER CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOU USE THE SERVICE AND USER CONTENT AT YOUR OWN RISK, AND NEITHER LOSE IT! NOR LOSE IT! AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM LOSE IT! OR LOSE IT! AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR USER CONTENT, EVEN IF LOSE IT! OR LOSE IT! AFFILIATES HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF LOSE IT! AND LOSE IT! AFFILIATES FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO LOSE IT! IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless Lose It! and Lose It! Affiliates against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with Your use of the Service or Your breach of any provision of this Agreement. Lose It! reserves the right the assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which You are obliged to provide indemnification hereunder. You will cooperate with Lose It! with respect to such defense and settlement.
Lose It! operates the Service under the Privacy Policy published at http://www.loseit.com/privacy. We urge You to read this policy now and, because the policy is updated from time to time, to regularly check this page to review any changes we might make.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by Lose It! infringe your copyright, you or your agent may send to Lose It! a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Lose It! actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to Lose It! a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
Lose It!'s Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows: Designated Agent: Legal Department; Address of Agent: Ziff Davis, LLC, 114 5th Avenue, 15th FL, New York, NY 10011; Telephone: (212) 503-3500; Fax: (646) 728-9501; E- mail for notice: DMCA@everydayhealthinc.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
These TOU and the relationship between you and Everyday Health shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. You and Everyday Health irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of New York, in the State of New York, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
Without limitation of the disclaimers and limitations of liability set forth in Section 12, You acknowledge and agree as follows: (a) we provide the Service using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); (b) the price at which we could afford to offer the Service would vary if we provided the Service other than using such cloud services; and (c) we shall not be responsible or liable to You for any act, omission or failure of any Cloud Provider.
The Service may depend upon, interact with or enable access to the information, other content, services or websites of third parties (each, a “Third Party Service”), which may in each case be accompanied by separate terms of use. Use of each Third Party Service may require that You accept additional terms of use. You must comply with the applicable terms of use when using the Third Party Service and the Service.
You acknowledge that do not endorse, and we are neither responsible nor liable for, the content, quality, interpretations or recommendations of the Helix Platform, the Helix Products or any other Third Party Services. Lose It! Does not assume, and hereby disclaims, all liability, obligation or responsibility in connection with any transactions between You and Helix or any other provider of Third Party Services. These transactions are entirely at the risk of You and such third party. If You have a dispute with Helix or other third party, You release Lose It! (and our agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
No delay or omission by Lose It! in exercising any of its rights occurring upon any noncompliance or default by You with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Lose It! of any of the covenants, conditions or agreements to be performed by You will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, “including” means “including but not limited to.” If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between You and Lose It! regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You agree that the electronic text of this Agreement constitutes a writing and Your assent to the terms and conditions hereof constitutes a “signing” for all purposes. There shall be no third party beneficiaries to this Agreement other than Lose It! Affiliates. In no event shall Lose It! be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Lose It!'s reasonable control.
In the unlikely event that you're not satisfied with customer service's solution, and you and Everyday Health are unable to resolve a dispute through the Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this arbitration provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you may be entitled to recover attorneys' fees from us to the same extent as you would be in court.
ARBITRATION AGREEMENT
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, Everyday Health and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
(2) Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute ("Notice"). A Notice from you to Everyday Health must be emailed to dispute.notice@everydayhealth.com ("Notice Address").
Any Notice must include (i) the claimant's name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Sites, including whether you have created an account with or receive any newsletters associated with any of the Sites; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person's dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). If you are unable to participate in the settlement conference by video, you may attend telephonically upon showing of good cause or extraordinary circumstances warranting telephonic participation (e.g., inability to afford equipment or sufficient Wi-Fi due to indigent circumstances). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 24(2). All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Everyday Health have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
(3) Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation ("NAM") (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.namadr.com or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in Section 24(2) and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address and you and a Everyday Health representative will be required to attend in person. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision is binding only between you and Everyday Health and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator's award that has been fully satisfied shall not be entered in any court.
As in court, you and Everyday Health agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose.
The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys' fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11 (b)).
(4) Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
(5) Confidentiality: Upon either party's request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
(6) Offer of Settlement: In any arbitration between you and Everyday Health, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party's favor and is less than the defending party's settlement offer or if the award is in the defending party's favor, the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
(7) Requirement of Individualized Relief: 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Everyday Health will be subject to this Section 24 and not to any prior arbitration agreement you had with Everyday Health, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Section 24 amends any prior arbitration agreement you had with Everyday Health, including with respect to claims that arose before this or any prior arbitration agreement.
(8) Opt Out of Future Changes: Notwithstanding any provision to the contrary, if Everyday Health makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Everyday Health an email to dispute.notice@everydayhealth.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account or newsletter; (v) the relevant Site; and (vi) the approximate date of your initial use of the relevant Site. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.
(9) Mass Filing:
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings ("Mass Filing") set forth in NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 24(2), until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for Everyday Health shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Everyday Health shall pay the mediator's fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Everyday Health shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Everyday Health shall pay the mediator's fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Everyday Health shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
Stage Four: If your claim is not resolved at this time, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 100, then 100 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 100, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 100 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and Everyday Health agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Everyday Health acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
(10) Severability: If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
You and Everyday Health agree that, to the fullest extent permitted by law, each party may bring claims (whether in court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Everyday Health may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Everyday Health may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Everyday Health may participate in a class-wide settlement. To the fullest extent permitted by law, you and Everyday Health waive any right to a jury trial.
Effective Date of Terms: 9/15/2012; updated 7/11/17, 4/5/18, 9/12/19, 8/4/22, 3/27/23, and 5/18/23
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