These Every Mother Terms and Conditions (the “Terms and Conditions”) constitute a binding legal agreement between you as the user (“you”) and Sustainable Fitness Inc. (the “Company”) that governs your access to and use of the Company’s websites, including https://every-mother.com/ (the “Site”), the Company’s mobile applications (“Apps”), all Content (as defined below) available through such websites and applications, and the Company’s other products and services (collectively, the “Every Mother Offerings”).
BY USING OR ACCESSING THE EVERY MOTHER OFFERINGS, INCLUDING BY DOWNLOADING, INSTALLING OR USING THE APPS, YOU: (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER OR THE AGE OF MAJORITY IN YOUR JURISDICTION AND HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT; AND (III) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT EIGHTEEN (18) YEARS OF AGE OR OLDER OR THE AGE OF MAJORITY IN YOUR JURISDICTION OR DO NOT HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT, OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT ENTITLED TO ACCESS AND USE THE EVERY MOTHER OFFERINGS AND YOU MUST DISCONTINUE YOUR ACCESS AND USE.
The Terms and Conditions REQUIRE all disputes between you and the Company to be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION) TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT. Please review the Section below titled “Dispute Resolution” for details regarding your agreement to arbitrate any disputes with the Company.
Limited License and Restrictions
Subject to your ongoing compliance with the Terms and Conditions, the Company hereby grants to you during the term of the Terms and Conditions a limited, non-exclusive, non-transferable, revocable license to access and use the Every Mother Offerings solely for your personal, non-commercial purposes. The Company reserves all rights not expressly granted in the Terms and Conditions.
Your use of the Every Mother Offerings and all features and functionalities therein shall be in accordance with all applicable laws, rules, regulations and restrictions. You shall comply with the Terms and Conditions and shall not: (a) copy, distribute, publish or post any Content on any computer network or broadcast or publications media; (b) remove or alter any copyright or other proprietary notices contained in the Every Mother Offerings; (c) sell, resell or make commercial use of the Every Mother Offerings, including the Content and any services or products obtained through the Every Mother Offerings; (d) collect and use for any purposes any product listings or descriptions; (e) modify, adapt, translate, reverse engineer, decompile or make derivative works based on any part of the Every Mother Offerings; (f) use of any data mining, robots or similar data gathering and extraction methods; (g) use or encourage the use of the Every Mother Offerings for any unlawful purpose, or in violation of any local, state, national or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy; (h) remove, modify, disable, block, impair, or obscure any advertising in connection with the Every Mother Offerings; (i) abuse or burden the Company’s systems or take any steps which could limit, interrupt or destroy the functionality of the Every Mother Offerings or any related software or hardware; (j) misrepresent your identity; (k) attempt to harvest or otherwise collect information about other users; (l) insert any code or product or manipulate the Every Mother Offerings in any way, including through malicious code such as viruses, worms, Trojan horses, spyware or other potentially harmful programs or other material or information; or (m) post, upload, publish, submit or transmit any content that infringes, misappropriates, violates or encourages conduct that would violate any applicable law or regulation or that is, in whole or in part, false, misleading, deceptive, fraudulent, harassing, threatening, defamatory, obscene, offensive, discriminatory, exploitative or otherwise harmful, or that promotes or relates to the use or sale of unlawful or regulated products or gambling.
Copyright and Trademarks
Except as expressly set forth herein, all intellectual property rights in and to the Every Mother Offerings and all text, graphics, images, video, audio, software, interfaces, photographs, works of authorship of any kind, user content or Feedback (as defined below), trademarks, service marks, logos and information or other materials that are posted, generated, provided or otherwise made available through the Every Mother Offerings (collectively, “Content”), and the selection and arrangement thereof, any enhancements to or derivative works thereto, and the features and functionality of the Every Mother Offerings are the exclusive property of the Company or its licensors and are protected by U.S. and international laws. You are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or other proprietary right of the Company or any third party.
Together with other logos and product names described on the Every Mother Offerings, the following includes a partial list of trademarks or registered trademarks of the Company in the United States and other countries: Every Mother, EMbody Prepare, EMbody Reclaim, EMbody Surpass, Core Compressions, EMbody Core Support. These trademarks may not be copied, imitated or used, in whole or in part, without the prior written consent of the Company or the rights holder. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of the Company and may not be copied, imitated or used, in whole or in part, without the prior written consent of the Company.
If you submit a comment, suggestion or any other material (excluding any illegal content) to the Company related to the Every Mother Offerings (“Feedback”), you hereby assign all ownership in and to such Feedback to the Company and waive any moral rights you have or may have in the Feedback, and acknowledge that the Company shall be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you, or, to the extent the foregoing is deemed ineffective, you hereby grant the Company an irrevocable, perpetual license to use such Feedback without any restrictions.
Indemnification
You agree to indemnify and hold harmless the Company, its parents, subsidiaries, shareholders, officers, directors, employees, agents, representatives and suppliers from any claim, action, demand, loss or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to your use of the Every Mother Offerings, your violation of the Terms and Conditions or your violation of any rights of a third party.
Order and Payment Information
If you use the Site, Apps or other means to purchase a product, payment must be received by the Company prior to its acceptance of an order, unless otherwise agreed by the Company. All products of the Company are subject to sales tax, which will be applied to your order total. The Company may need to verify information you provide before it accepts an order, and may cancel or limit an order any time after it has been placed for any reason. If payment has already been made and your order is cancelled or limited, the Company will refund any payment you made for the product or service that will not be shipped or provided, as applicable, due to cancellation or limitation of an order in the same tender as the original purchase. The Company expressly conditions its acceptance of your order on your agreement to the Terms and Conditions.
In ordering products or services through the Site, Apps or otherwise, you agree to provide only true, accurate, current and complete information. You hereby certify that any email account you provide to the Company is registered to you. The Company shall have the right to bar your access to and use of the Site, Apps or its other products or services if it has reasonable grounds to believe that you have provided untrue, inaccurate, not current or incomplete information to the Company or for any other reason it, in its sole discretion, deems appropriate. You agree that if you are ordering or purchasing products or services on behalf of a company or third party, that you have sufficient authority to bind that company or other third party to the Terms and Conditions. You agree that your placement of an electronic order on the Site or Apps is sufficient to satisfy any applicable statute of frauds and no further writing is required.
The Company may reject orders where the stated delivery address is outside the United States. The Company will add applicable shipping and handling fees to any order for the Company’s products or services.
The Company reserves the right without prior notice to discontinue or change specifications and prices on products and services offered on and outside of the Site or Apps without incurring any notice or other obligation to you.
The Company’s descriptions of, or references to, products and services not owned by the Company on and outside of the Site or Apps do not imply endorsement of that product or service, or constitute a warranty of any kind, by the Company.
Any and all products sold by the Company are intended for personal use only and may not be resold, licensed, rented or used for any commercial purposes whatsoever.
Automatic Renewal
With regards to any product or service made available to you on a monthly (or other period) subscription as sold through the Site, Apps or otherwise (including any free trial product) (the “Deliverables”), the default term of your agreement with the Company shall be for so long as the Company makes the Deliverables available to you. IF YOU HAVE PROVIDED THE COMPANY WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED (AND CHARGED TO THE ACCOUNT YOU HAVE PROVIDED) FOR ANOTHER TERM AT THE EXPIRATION OF YOUR CURRENT TERM, WHENEVER LOCAL REGULATIONS ALLOW, FOR A FEE NO GREATER THAN THE COMPANY’S THEN-CURRENT PRICE, EXCLUDING PROMOTIONAL AND DISCOUNT PRICING.
The new term will be for the same duration as the expired term unless otherwise specified at time of renewal. This renewal will be processed (and your card charged) within 30 days prior to the expiration of the term and each period thereafter. IF YOU DO NOT DESIRE TO HAVE YOUR SUBSCRIPTION AUTOMATICALLY RENEWED, YOU MUST, PRIOR TO THE EXPIRATION OF YOUR SUBSCRIPTION TERM CANCEL DIRECTLY THROUGH THE EVRY MOTHER WEBSITE OR APP.
You must provide current, complete and accurate information for your billing account. You are responsible for ensuring this information is correct and must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date). You must promptly notify the Company in writing if your credit card is cancelled (for example, for loss or theft). The Company’s provision of any Deliverable may cease without notice if such billing information becomes incorrect or incomplete.
The Company reserves the right to refuse or discontinue the supply of any Deliverable to any user at any time in the sole discretion of the Company.
Subscription Refunds
Refunds will not be provided for subscriptions purchased through the Site, Apps or other means for Every Mother’s streaming content and digital offerings.
Every Mother EMbody Bands & Embody Core Support - Safety
Read all safety information before using the bands and supportive apparel. It is the customer’s responsibility to ensure that all users of the bands and corsets are aware of all warnings and precautions.
The bands contain natural rubber latex that may cause an allergic reaction, including without limitation, mild itching, skin redness or hives. If you think you are experiencing any reaction to the latex, immediately discontinue use of the bands and consult your physician or a medical professional.
Consult with your physician or a medical professional regarding the risks involved in use of the bands and corsets and before engaging in any physical activity. Incorrect or excessive physical activity can result in serious injury or death.
Consult with your physician or a medical professional immediately if you experience pain or other physical problems in connection with your use of the bands or corsets.
Prior to use of these products, please check it for damaged sections, such as frayed, cut, gouged or worn sections. If wear or damage is found, immediately stop use of these products until the wear or damage has been properly remedied or the product has been replaced.
NEVER use these products if it is not working properly. Check these products for wear and damage on a regular basis.
THESE PRODUCTS ARE NOT FOR USE BY CHILDREN UNDER THE AGE OF 14. To prevent injuries, keep these products out of the reach of children and pets at all times. EMbody bands and corsets are not a toy. If you plan to anchor the bands to a stationary object (including using the door anchor), test before use by pulling on the handles to make sure that the stationary object can support your weight and that the bands are securely attached to the stationary object and door anchor when applicable.
Do not store the bands or corsets in direct sunlight.
Every Mother EMbody Bands & Embody Core Support - Returns
EMbody Band Returns: All EMbody Band sales are final. No returns will be accepted and no refunds will be processed.
EMbody Core Support Returns: EMbody Core Support returns must be processed and submitted through the Every Mother website. The Company is not responsible for packages shipped outside of Every Mother’s return system. The Company does not process item exchanges. If a new size is needed, a new purchase should be initiated through the Every Mother website.
EMbody Core Support garments purchased from every-mother.com are eligible for a refund of the purchase price less a $7.95 processing and handling fee. EMbody Core Support returns must be initiated within 30 days of the item’s delivery date. The EMbody Core Support garment must be accompanied by the original packaging and tags and be in like-new condition. The Company will not provide refunds for items that are damaged, stained (including deodorant stains), washed, stretched, or show visible signs of wear.
The Company is unable to provide refunds for previously paid shipping charges.
Products and Services Generally
Our products and services provide different results for different people. Your experience using our products and services depends on many factors, many of which include your own unique lifestyle choices. RESULTS ARE NOT GUARANTEED.
Please also note that there may be slight variations in the colors of products you receive from the Company due to your electronic screen settings. While we have tried to accurately display the colors of products, the actual colors you see will depend on your monitor and may not be accurate. When purchasing products or services from the Company, you agree that the Company shall not be liable for any incidental, consequential, or special damages resulting directly or indirectly from your use or misuse of the Company’s products or services or your dissatisfaction with the results of your use.
Shipping
Unless otherwise noted, the Company will use its best efforts to ship products and provide services within a reasonable time after receipt of your properly completed order. Although the Company may provide estimated delivery or shipment timeframes or dates, you understand that those are the Company’s good-faith estimates and may be subject to change without notice. You further understand that product and service availability may be limited and may not be available for immediate delivery, in which case the products and services will be delivered or provided when they become available. The Company shall not be liable for any loss, damage, cost or expense related to any delay in shipment or delivery of any product or service.
The delivery time for shipments to P.O. boxes within the United States or for shipments outside the United States, including to U.S. territories, Alaska and Hawaii, may take up to 7-21 days or longer.
Warranties
CERTAIN WARRANTIES WITH RESPECT TO PARTICULAR PRODUCTS FOR SALE ON OR OUTSIDE THE SITE OR APPS MAY BE APPLICABLE THROUGH MANUFACTURERS’ WARRANTIES, THOUGH NOT THROUGH THE COMPANY. SEE THE WARRANTIES INCLUDED IN THE DOCUMENTATION PROVIDED ALONG WITH THE PRODUCTS FOR FURTHER DETAILS REGARDING WARRANTIES PROVIDED BY MANUFACTURERS OF PRODUCTS AVAILABLE THROUGH OR OUTSIDE THE SITE OR APPS.
EXCEPT AS EXPRESSLY PROVIDED IN THE TERMS AND CONDITIONS, THE EVERY MOTHER OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY WITH RESPECT TO THE COMPLETENESS, RELIABILITY, QUALITY, ACCURACY, AVAILABILITY OR RESULT OF USE OF THE EVERY MOTHER OFFERINGS. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE COMPANY AND ITS SUPPLIERS DO NOT ENDORSE AND MAKE NO CLAIMS WITH RESPECT TO ANY COMPANY, VENDOR, SERVICE OR PRODUCT DEPICTED IN THE EVERY MOTHER OFFERINGS. THE COMPANY AND ITS SUPPLIERS DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS OF QUALITY, ACCURACY OR RELIABILITY OF USER CONTENT. THE COMPANY AND ITS SUPPLIERS DO NOT TAKE ANY RESPONSIBILITY FOR INTERACTIONS BETWEEN DIFFERENT USERS OF THE EVERY MOTHER OFFERINGS. THE EVERY MOTHER OFFERINGS PROVIDE HEALTH AND FITNESS INFORMATION AND ARE DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. NOTHING STATED ON OR MADE AVAILABLE THROUGH THE EVERY MOTHER OFFERINGS IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, HEALTHCARE ADVICE, DIAGNOSIS OR TREATMENT, OR COUNSELING CARE. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. IT IS YOUR RESPONSIBILITY TO CONSULT YOUR PHYSICIAN OR MEDICAL PROFESSIONAL BEFORE BEGINNING A NEW FITNESS PROGRAM AND IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT YOUR HEALTH. THE USE OF INFORMATION PROVIDED THROUGH THE EVERY MOTHER OFFERINGS IS SOLELY AT YOUR OWN RISK.
Limitations on Liability
IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES, CLAIMS OR LOSSES INCURRED (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES), HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY ARISING IN CONNECTION WITH: (I) THE SITE, APPS OR CONTENT; (II) THE USE OR INABILITY TO USE THE SITE, APPS OR CONTENT; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE OR APPS; (IV) THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICSE THROUGH THE SITE, APPS OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT OR RECEIVED; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, OR FILE CORRUPTION OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THE TERMS AND CONDITIONS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF THE COMPANY OR ITS REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS OR LOSSES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST 90 DAYS TO THE COMPANY FOR ANY PRODUCTS OR SERVICSE SUPPLIED BY THE COMPANY THROUGH YOUR USE OF THE SITE, APPS OR OTHERWISE.
THE COMPANY WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS AND CONDITIONS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, PANDEMIC, WAR OR SIMILAR OCCURRENCES.
THESE EXCLUSIONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE UNITED STATES OF AMERICA. IF ANY PROVISION OF THESE DISCLAIMERS AND EXCLUSIONS SHALL BE UNLAWFUL, VOID OR FOR ANY REASON UNENFORCEABLE THEN THAT PROVISION SHALL BE DEEMED SEVERABLE AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS.
The terms of this section survive any termination of the Terms and Conditions.
International Users
The Every Mother Offerings are controlled, operated and administered by the Company from its offices within the United States of America. The Company makes no representation that the Every Mother Offerings are appropriate or available for use at other locations outside of the United States, and access to them from territories where the Every Mother Offerings are illegal or prohibited. You may not use the Every Mother Offerings in violation of U.S. export laws and regulations. If you access the Every Mother Offerings from a location outside of the United States, you are responsible for compliance with all local laws.
Termination
Notwithstanding any of the Terms and Conditions, the Company reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Every Mother Offerings and to block or prevent future access to and use of the Every Mother Offerings. You agree that the Company shall not be liable for any termination of your use of or access to the Every Mother Offerings.
Third-party rights
Neither Apple, Inc. and its subsidiaries (“Apple”) nor Google and its subsidiaries (“Google”) is a party to the Terms and Conditions and as between the Company, Apple and Google, the Company is solely responsible for the App and its content. You acknowledge and agree that neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to the Apps. You acknowledge and agree that Apple and Google are third-party beneficiaries of the Terms and Conditions and may be entitled to enforce the terms of the Terms and Conditions directly against you. Neither Apple nor Google are responsible for the Apps or any information or Content provided there in or any warranty, support or other claim you make related to your use or inability to use the Apps. Except as provided herein, no third party shall be entitled to enforce any of the Terms and Conditions.
Severability
If any provision of the Terms and Conditions shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, then that provision shall be deemed severable from the Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. The terms of this section survive any termination of the Terms and Conditions.
Governing Law
The Terms and Conditions and all matters relating thereto shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law provisions.
Dispute Resolution
IF YOU ARE A US RESIDENT, PLEASE READ THIS “DISPUTE RESOLUTION” SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT.
Informal dispute resolution procedure. If a dispute arises between you and the Company, the Company is committed to working with you to reach a reasonable resolution. For any such dispute, you and the Company acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account, if any, to the following email address: info@every-mother.com. For any dispute that the Company initiates, the Company will send its written description of the dispute to the email address associated with your Every Mother account or other email address that the Company has on file for you. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If the dispute is not resolved within 60 days after receipt of the written description of the dispute, you and the Company agree to the further dispute resolution provisions below.
The above process for an informal dispute resolution is required before you may commence any formal dispute resolution proceeding. You and the Company agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
Mutual arbitration agreement. You and the Company agree that all claims, disputes or disagreements that may arise out of the interpretation or performance of the Terms and Conditions (including its formation, performance and breach) or payments by or to the Company, or that in any way relate to the provision or use of the Every Mother Offerings, your relationship with the Company, or any other dispute with the Company, shall be resolved exclusively through binding arbitration in accordance with this Dispute Resolution Section (collectively, the “Arbitration Agreement”). This includes claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in this Section. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and the Company expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.Except as set forth in this Section, the arbitrator or arbitration body, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Terms and Conditions and this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the your and the Company’s decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court's jurisdiction, regardless of what forum the filing party initial chose; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
You and the Company agree to submit to the personal jurisdiction of any federal or state court in the State of New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in this Section, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, you and the Company nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
YOU AND THE COMPANY UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Class arbitration and collective relief waiver. YOU AND THE COMPANY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY'S CLAIM, UNLESS THE COMPANY PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If there is a final judicial determination that either the class arbitration action and collective relief waiver set forth in the immediately preceding paragraph or the provisions in this Section are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or the Company from participating in a class-wide settlement of claims.
Arbitration rules. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation's Commercial Dept at commercial@namadr.com.
Initiating arbitration. Only after you and the Company have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules. If you are initiating arbitration, a copy of the demand shall also be emailed to info@every-mother.com. If the Company is initiating arbitration, it will serve a copy of the demand to the email address associated with your Every Mother account or the email that the Company has on file for you. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the Informal Dispute Resolution Procedure contemplated by the Terms and Conditions.
Arbitration location and procedure. The arbitration will be conducted in the county where you reside, unless you and the Company otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and the Company submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the you and the Company agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and the Company (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
Batch arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with this Dispute Resolution Section if NAM is unavailable) against the Company within reasonably close proximity (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with the Dispute Resolution Section if NAM is unavailable) in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by the Company and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with the Company and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless the Company otherwise consents in writing, the Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth otherwise in the Dispute Resolution Section. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.Arbitrator's decision. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the Dispute Resolution Section and also must be consistent with the terms of the “Limitations on Liability” section of the Terms and Conditions as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.Fees. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in this Dispute Resolution Section), provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Dispute Resolution Section while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
Right to opt-out of the Arbitration Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE “ARBITRATION AGREEMENT” AS SET FORTH IN THIS DISPUTE RESOLUTION SECTION, THEN: (1) you must notify the Company in writing within thirty (30) days of the date that you first use the EVERY MOTHER OFFERINGS or otherwise become subject to this Arbitration Agreement; (2) your written notification must be mailed to 442 Lorimer Street Ste D #138, Brooklyn, NY 11206 or emailed to info@every-mother.com and (3) your written notification must include (a) your name, (b) your address, (c) the date you purchased a product, if applicable and (d) a clear statement that you wish to opt out of this Arbitration Agreement. The Company will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms and Conditions pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of this Arbitration Agreement by you and the Company.Changes. The Company will provide thirty (30) days’ notice of any changes to this Arbitration Agreement by posting the change on the Site, or providing any other notice in accordance with legal requirements. Any such changes will go into effect 30 days after the Company provides this notice and apply to all claims not yet filed. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If the Company changes this Arbitration Agreement after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Every Mother Offerings 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described above.
General
The Terms and Conditions constitute the entire agreement between the Company and you with respect to your use of the Every Mother Offerings, and as applicable any products or services of the Company. Any cause of action you may have with respect to the Every Mother Offerings or products or services must be commenced within one (1) year after the claim or cause of action arises, notwithstanding any statutes of limitation to the contrary. Any failure by the Company to enforce or exercise any provision of the Terms and Conditions or related right shall not constitute a waiver of that right or provision. The section titles used in the Terms and Conditions are purely for convenience and carry with them no legal or contractual effect. Nothing in the Terms and Conditions will be construed as creating a joint venture, partnership, employment or agency relationship between you and the Company, and you do not have any authority to create any obligation or make any representation on the Company’s behalf. You may not assign or transfer any rights or obligations of the Terms and Conditions by operation of law or otherwise, without the Company’s written consent. Subject to the foregoing, the Terms and Conditions will be binding on, inure to the benefit of, and be enforceable against you and the Company and their respective successors and assigns.
The terms of this section survive any termination of the Terms and Conditions.
Other important terms
We may update or amend the Terms and Conditions from time to time to comply with law or to meet our changing business requirements without notice to you. Any updates or amendments will be posted on the Site. The Terms and Conditions displayed on the Site at the time the applicable order is accepted will apply to the order.
The Terms and Conditions supersede any other Terms and Conditions previously published by the Company and any other representations or statements made by the Company to you, whether oral, written or otherwise. The Company may assign, transfer or sub-contract any of its rights or obligations under the Terms and Conditions to any third party in its sole discretion. No delay by the Company in exercising any right or remedy under the Terms and Conditions shall operate as waiver of that right or remedy or shall affect the Company’s ability to subsequently exercise that right or remedy. Any waiver must be agreed by the Company in writing.
