ITOVi Terms of Use
Last Updated: September 23, 2015
PLEASE READ THIS DOCUMENT CAREFULLY.
ITOVi, LLC (“ITOVi,” “we” or “us”) provides products and services, including,
but not limited the ITOVi AIM device (“Device”), mobile application (“App”),
related website (“Site”), the ITOVi Content (as defined below) and software
embedded in the Device (collectively, the “Service”). THIS IS A LEGAL
AGREEMENT BETWEEN YOU AND ITOVI, LLC AND GOVERNS YOUR
USE OF THE SERVICES. Subject to your acceptance of and adherence to
these Terms of Use (the “Terms”), ITOVi grants you a limited, non-exclusive
license to utilize the Services as set forth herein. The terms “you” and “user”
shall refer to all individuals and entities that access the Services.
These Terms apply to your access and use of any part of the Service. If you
do not wish to be bound by these Terms, do not use any part of the Service. If
you are using ITOVi for iOS, the additional terms set forth in Section 16 apply
to your use of the App. If you do not wish to be bound by those additional
terms, do not use ITOVi for iOS.
IF YOU ARE A RESIDENT OF THE UNITED STATES OR ACCESS OR USE
THE SERVICE IN THE UNITED STATES, BY ACCEPTING THESE TERMS,
YOU ARE AGREEING TO THE ARBITRATION AGREEMENT (UNLESS
YOU FOLLOW THE OPT-OUT PROCEDURE) AND CLASS ACTION
WAIVER DESCRIBED IN SECTION 14 OF THESE TERMS TO RESOLVE
ANY DISPUTES WITH ITOVI.
1. Who May Use the Service
You must be at least 18 years old to use the Service. By using any part of the
Service, you agree and acknowledge that you have the right, authority and
capacity to enter into these Terms and to abide by all of the terms and
conditions of these Terms. Use of the Service and certain functionality of the
Device may require a compatible mobile device and Internet access. Your
ability to use the Service may be affected by performance of these items. You
acknowledge and agree that all such system requirements, which may be
changed from time to time, are your responsibility, and your mobile carrier’s
standard charges, data rates and other fees may apply. Further, you agree to
always use the most recent version of the Service made available by ITOVi.
2. Precautions
THE DEVICE AND ANY OTHER PRODUCTS OFFERED BY ITOVI ARE
NOT MEDICAL DEVICES AND SHOULD NOT BE USED TO DIAGNOSE OR
TREAT ANY MEDICAL CONDITIONS. Consult your doctor for prevention,
diagnosis, and treatment. Content found through the Services is for
informational purposes only and is not intended to replace the relationship
between you and your physician or other medical provider. We are not a
licensed medical care provider and have no expertise in diagnosing,
examining, or treating medical conditions of any kind, or in determining the
effect of any specific exercise or nutritional supplement on a medical
condition. Never disregard professional medical advice or delay in seeking it
because of something you have read on or through the Services. If you think
you may have a medical emergency, call your physician or 911 immediately.
If you feel discomfort or pain, immediately stop the activity causing such
discomfort or pain. Do not use the Device or Services if you have a
pacemaker.
The Service may contain information on worldwide products and services, not
all of which are available in every location. A reference to a product or service
on the Site does not imply that such product or service is or will be available
in your location. The Device as well as any other products referred to on the
Site may be subject to different regulatory requirements depending on the
country of use. Consequently, visitors may be notified that certain sections of
the Site are intended only for certain kinds of expert users or only for
audiences in certain countries. You should not construe anything on the Site
as a promotion or advertisement for any product or for the use of any product
that is not authorized by the laws and regulations of your country of
residence.
Use of the Service should not replace your good judgment and common
sense. ITOVi has the right, but not the obligation, to monitor all conduct on
and Content submitted to the Service.
3. License to Use the Service; Ownership
“ITOVi Content” includes any text, graphics, images, music, software, audio,
video, works of authorship of any kind, and information or other materials that
are posted, generated, provided or otherwise made available through the
Service to you. Except for User Content (as defined in Section 9), ITOVi
Content, the Service and its underlying technology are protected by copyright,
trademark, patent, intellectual property, and other laws of the United States
and foreign countries. You agree not to remove, change or obscure any
copyright, trademark, service mark or other proprietary rights notices
incorporated in or accompanying the ITOVi Service.
ITOVi grants you a limited, non-exclusive, non-transferable, nonsublicensable license to (1) access and view the ITOVi Content, (2) access
and use the Service, and (3) use the software that is embedded in the Device
as authorized in these Terms. This license is provided solely for your personal
use and enjoyment of the Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon,
distribute, license, sell, transfer, publicly display, publicly perform, transmit,
broadcast or otherwise exploit the ITOVi Content, the Service or any portion
thereof, except as expressly permitted in these Terms. No licenses or rights
are granted to you by implication or otherwise under any intellectual property
rights owned or controlled by ITOVi or its licensors, except for the licenses
and rights expressly granted in these Terms. Nothing in these Terms conveys
to you any ownership, intellectual property rights or other proprietary interest
in or relating to the ITOVi Content, the Service or any other ITOVi products or
services, or any modifications or derivative works of any of the foregoing. The
ITOVi Content and the Service are licensed, not sold, to you and are owned
by ITOVi and its licensors. Except as expressly set forth herein, ITOVi
reserves all right, title and interest, including all intellectual property and other
rights, in and to the ITOVi Content and the Service and all other ITOVi
products and services.
We welcome your comments, feedback, suggestions, and other
communications regarding the Service (collectively, “Feedback”). While you
are not obligated to provide Feedback, in the event that you provide
Feedback, you hereby grant to ITOVi a worldwide, non-exclusive,
transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free
license to copy, distribute, create derivative works of, publicly display and
perform and otherwise exploit such Feedback and to use, make, have made,
sell, offer for sale, import and export products and services based on such
Feedback. For this reason, we ask that you not send ITOVi any Feedback
that you do not wish to license to us as set forth above.
4. Privacy Policy
Please read our Privacy Policy for more information about ITOVi’s privacy
practices at http://www.iTOVi.com/privacy/.
5. Registration
To use certain functionality of the Service, you must register for an account
(“Account”) by providing your full name, birthday, weight, height, gender,
email address and password. You may also upload a profile picture and link
your Account to your Facebook account. You can stop sharing that
information with us at any time by removing ITOVi’s access to that account.
By creating an Account, you expressly acknowledge and agree that:
You agree to take all reasonable precautions to protect your Account and
notify us at support@iTOVi.com of any breach of security or unauthorized use
of your mobile phone or Account.
6. Termination
If you breach any of the terms of these Terms, all licenses granted by ITOVi,
including permission to use the Service, will terminate automatically.
Additionally, ITOVi may suspend, disable, or delete your Account and/or
suspend or terminate your access to the Service (or any part of the foregoing)
with or without notice, for any or no reason. If ITOVi deletes your Account for
any suspected breach of these Terms by you, you are prohibited from reregistering for the Service under a different name or with a different mobile
telephone number.
You may cease use of the Service at any time. However, we will not
automatically delete your Account information in case you decide you would
like to rejoin the Service. If you want ITOVi to delete your Account and your
address book information, you must email us with such request at
support@iTOVi.com.
All sections which by their nature should survive the termination of these
Terms shall continue in full force and effect subsequent to and
notwithstanding any termination of this Agreement by ITOVi or you, including
without limitation Sections 6 through 17 inclusively. In the event of Account
deletion for any reason, ITOVi may, but is not obligated to, delete any of your
User Content (as defined in Section 9). ITOVi shall not be responsible for the
deletion of (or failure to delete) such Content.
7. ORDERING FROM THE STORE
Additional Polices Applicable to Device Orders
The ITOVi Return Policy and Warranty available at www.iTOVi.me/returns
applies to purchases made through the Service. All orders placed are subject
to ITOVi acceptance. We may accept, decline, or place limits on your order
for any reason.
Orders
You can browse our products and place orders for our Devices through
http://store.iTOVi.com/ (the “Store”). To fulfill your order, we’ll ask you for
certain information including your name, phone number, e-mail address,
shipping and billing address. When you place an order, ITOVi’s third-party
payment service provider will collect your credit card details and charge your
credit card account in connection with the order. You agree to make all
payments in connection with any order placed by you. ITOVi does not view or
store your credit card information. We collect and store your shipping address
so we can process your order through our fulfillment partners. If you are
logged into your ITOVi account when you purchase something from the Store,
we associate that order with your Account. For more information regarding
ITOVi’s data use practices please see the ITOVi Privacy Policy at
www.iTOVi.me/privacy.
When you place an order through the Store, you agree that: (i) any credit card
information supplied by you is true and complete; and (ii) you will pay the
applicable price listed, as well as any shipping and handling charges and
applicable taxes. Devices purchased by you are for personal or gift use and
not for commercial use.
Pricing
ITOVi can withdraw Devices and any other products from the Store at any
time and for any reason. Prices listed through the Store, unless otherwise
noted, are stated in U.S. dollars and do not include any shipping and handling
charges or applicable taxes, which charges and taxes will be communicated
to you before you place an order and you are responsible for paying such
charges and taxes to ITOVi. You agree to indemnify and hold ITOVi harmless
from and against any liabilities, interest, penalties or fees assessed against
ITOVi arising from your failure to pay any such taxes. All Product prices are
subject to change at any time.
Acceptance and Fulfillment
All orders are subject to acceptance by ITOVi. After you place an order, you
will receive an email from ITOVi confirming that ITOVi has received it.
Acceptance of your order will occur upon your receipt of another email from
ITOVi containing a shipping, tracking and courier information. If an order is on
back order, we’ll send you an email indicating that this is the case, followed by
another email when the items in question are in stock containing shipping,
tracking and courier information. ITOVi reserves the right to restrict the
quantities of your order or not to accept your order for any or no reason.
Resale
Purchases made through the Store are intended for end users only, and are
not authorized for resale.
Shipping and Delivery
ITOVi will pack the Devices in accordance with its standard practices. You
can choose the method of shipment and timing of delivery for Devices
ordered, and will be charged shipping and handling charges accordingly. Title
to the Devices (except to the extent that the Devices consist of Software) and
risk of loss will pass to you upon ITOVi’s delivery of the Devices to the carrier.
You acknowledge that all scheduled shipment dates are estimates only. ITOVi
will make reasonable efforts to meet the scheduled shipment dates, but in no
event will ITOVi be liable for any loss, damage, or penalty resulting from any
delay in shipment or delivery.
RETURN POLICY
If you are unsatisfied with any Product purchased from the Store for any
reason, you have 15 days from the date of the initial sync of your iTOVi
device with your mobile device to request a full refund.to request a full refund.
For full details on the return process, please see www.iTOVi.com/returns.
LIMITED PRODUCT WARRANTY
ITOVi warrants to the original purchaser that your Device shall be free from
defects in materials and workmanship under normal use for a period of one
(1) year from the date of purchase. In the event of valid claim of a hardware
defect within the warranty period, ITOVi will, at its option and to the extent
permitted by law, either (1) repair the Device at no charge, using new or
refurbished replacement parts or (2) replace the Device with a new or
refurbished Device. In the event of a defect, to the extent permitted by law,
these are your sole and exclusive remedies. For full details on the Limited
Product Warranty, please see www.iTOVi.com/returns.
COMPATIBILITY
You acknowledge that you have verified the compatibility of the Devices you
are purchasing with other required equipment (e.g., ensuring that your mobile
device and/or operating system is compatible with the Device). You are solely
responsible for determining the compatibility of the Devices with other
equipment, and you accept that lack of compatibility is not a valid claim under
the warranty provided with your Device and does not otherwise constitute a
basis for receiving a refund after the 15 day refund policy identified above.
8. Consent to Communication
By using the Service, you agree that we may communicate with you
electronically regarding administrative, security and other issues relating to
your use of the Service. Communication will be made primarily through use of
Short Message Service Text Messages to the mobile phone number used to
register your Account. We may also contact you using email (if you have
provided your email address) as well on Facebook (if you have linked your
Account with your Facebook account). You agree that any notices,
agreements, disclosures or other communications that we send to you
electronically will satisfy any legal communication requirements, including that
such communications be in writing. You are responsible for any messaging or
data fees you may be charged by your wireless carrier. To withdraw your
consent from receiving electronic notice, please notify us at
support@iTOVi.com.
9. Content and Use Restrictions
You are solely responsible for the content, information, images, videos and
text (“User Content”) that you post, upload, transmit, publish or display on or
through the Service (hereinafter, “post”), or transmit to other users. You will
not provide inaccurate, misleading or false information to ITOVi or to any
other user. If information provided to ITOVi or another user subsequently
becomes inaccurate, misleading or false, you will promptly notify us of such
change. You will not post on the Service, or transmit to other users, any
defamatory, inaccurate, abusive, obscene, profane, offensive, sexually
oriented, threatening, harassing, racially offensive, or illegal material, or any
material that infringes or violates another party's rights (including, but not
limited to, intellectual property rights, and rights of privacy and publicity).
Without limiting the previous sentence, you may not post any of User Content
or use the Service in any way that:
a. is patently offensive, such as User Content that promotes racism, bigotry,
hatred or physical harm of any kind against any group or individual;
b. intimidates, threatens, or otherwise harasses other users of the Service, or
advocates harassment of another person;
c. is false, misleading or promotes illegal activities or conduct that is abusive,
threatening, obscene, defamatory or libelous;
d. exploits people under the age of 18 in a sexual or violent manner, or
attempts to collect personal information about any other user of the Service or
any third party without such user or third party’s informed consent;
e. contains sexually explicit content;
f. provides instructional information about illegal activities such as making or
buying illegal weapons, violating someone's privacy, or providing or creating
computer viruses;
g. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass
mailing or “spamming”;
h. use any robot, spider, site search/retrieval application, or other manual or
automatic device or process to retrieve, index, “data mine”, or in any way
reproduce or circumvent the navigational structure or presentation of the
Service or its contents;
i. promotes an illegal or unauthorized copy of another person's copyrighted
work, such as providing pirated computer programs or links to them, providing
information to circumvent manufacture-installed copy-protect devices, or
providing pirated images, audio or video, or links to pirated images, audio or
video files;
j. contains or transmits viruses, corrupted data or other harmful, disruptive or
destructive files or code;
k. solicits personally identifiable information for commercial or unlawful
purposes from other users;
l. engages in commercial activities and/or sales including but not limited to
contests, sweepstakes, barter, advertising, and pyramid schemes;
m. infringes any third party’s copyrights or other rights (including but not
limited to other intellectual property rights and privacy rights); or
n. otherwise takes any action in violation of these Terms or ITOVi’s
guidelines and policies.
Your use of the Service, including but not limited to the User Content you post
on the Service, must be in accordance with any and all applicable laws and
regulations. When you post, link or otherwise make available User Content to
the Service, you grant us a nonexclusive, royalty-free, fully paid-up, perpetual,
irrevocable, transferable and fully sublicensable right to use, reproduce,
modify, adapt, publish, translate, create derivative works from, distribute,
perform and display, and otherwise exploit such Content throughout the world
in any manner or media, on or off the Service.
10. Content Submission
You agree and acknowledge that: (i) you have the right to submit all User
Content and Feedback to ITOVi and grant the licenses set forth in these
Terms; (ii) ITOVi will not need to obtain licenses from any third party or pay
royalties to any third party to use the User Content and Feedback in
accordance with these Terms; (iii) the User Content and Feedback do not
infringe any third party’s rights, including but not limited to intellectual property
rights and privacy rights; and (iv) the User Content and Feedback comply with
these Terms and all applicable laws.
ITOVi has no obligation to screen or monitor any User Content and does not
guarantee that any User Content available on the Service complies with these
Terms or is suitable for all users.
11. Third Party Rights; DMCA
General
ITOVi respects the intellectual property of others, and we ask our users to do
the same. Each user is responsible for ensuring that the User Content they
upload to ITOVi does not infringe any third party copyright.
ITOVi, LLC will promptly remove materials in accordance with the Digital
Millennium Copyright Act (“DMCA”) if properly notified that the materials
infringe a third party’s copyright. In addition, ITOVi, LLC may, in appropriate
circumstances, terminate the Accounts of repeat copyright infringers.
DMCA Takedown Notice
If you believe that your work has been copied in a way that constitutes
copyright infringement, please provide us with a written notice containing the
following information:
a. Your name, address, telephone number, and email address (if any).
b. A description of the copyrighted work that you claim has been infringed.
c. A description of where the material that you claim is infringing is located on
ITOVi, sufficient for ITOVi, LLC to locate the material.
d. A statement that you have a good faith belief that the use of the
copyrighted work is not authorized by the copyright owner, its agent, or the
law.
e. A statement by you that the information in your notice is accurate and,
UNDER PENALTY OF PERJURY, you are the copyright owner or authorized
to act on the copyright owner's behalf.
f. An electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright interest.
You may submit this information via:
a. Email: support@ITOVi.com
DMCA Counter-notification
If you believe that your material has been removed by mistake or
misidentification, please provide ITOVi, LLC with a written counter-notification
containing the following information:
a. a. Your name, address, and telephone number.
b. A description of the material that was removed and the location where it
previously appeared.
c. A statement UNDER PENALTY OF PERJURY that you have a good faith
belief that the material was removed or disabled as a result of mistake or
misidentification.
d. A statement that you consent to the jurisdiction of the Federal District
Court for the judicial district in which your address is located, or if your
address is outside of the United States, any judicial district in which ITOVi,
LLC may be found, and that you will accept service of process from the
person who filed the original DMCA notice or an agent of that person.
e. Your electronic or physical signature.
You may submit this information via:
a. Email: support@iTOVi.com
b. Offline: ITOVi, LLC’s Copyright Agent (see below)
Please note that we will provide complete counter-notifications to the person
making the DMCA claim. That person may elect to file a lawsuit against
you for copyright infringement. If we do not receive notice that a lawsuit
has been filed within ten (10) business days after we provide notice of your
counter-notification, we will restore the disabled materials. Until that time, your
materials will remain disabled.
Warning: In filing a DMCA notice or counter-notification, please make sure
that you have complied with all of the above requirements. If we request
additional information necessary to make DMCA your notice or counternotification complete, please provide that information promptly. If you fail to
comply with all of the requirements, your notification or counter-notification
may not be processed.
In addition, please make sure that all of the information you provide is
accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. §
512(f),
ANY
PERSON
WHO
KNOWINGLY
MATERIALLY
MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR
WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION
MAY BE SUBJECT TO LIABILITY.
If you have questions about the legal requirements of a DMCA notice, please
contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17
U.S.C. § 512(c)(3), for more information. If you have questions about the legal
requirements of a DMCA counter-notification, please contact an attorney or
see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for
more information.
ITOVi LLC’s Copyright Agent
You may send a DMCA notice, a DMCA counter-notification, or any inquiries
concerning intellectual property to ITOVi, LLC’s Copyright Agent:
ITOVi, LLC
660 West 2350 North,
Lehi, UT 84043
Department – Copyright Agent
Email: support@iTOVi.me
12. Indemnification
You agree to indemnify and hold harmless ITOVi, its subsidiaries, affiliates,
related parties, officers, directors, employees, agents, suppliers, independent
contractors, advertisers, partners and co-branders from any loss, damages, or
costs, including without limitation reasonable attorneys' fees, resulting from
any third party claim, action, or demand resulting from your use of or access
to the Service, your violation of any third party proprietary or other rights, or
breach of these Terms.
13. Disclaimer of Warranties; Limitation of Liability
EXCEPT FOR THE LIMITED PRODUCT WARRANTY ON THE DEVICE
DESCRIBED BELOW AND AT WWW.ITOVI.COM/RETURNS, ITOVI
PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE
FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET
ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. In
addition, we make no warranty that the Service will meet your requirements or
be available at any time or from any particular location, secure, or error-free,
that defects will be corrected, or that the Service is free of viruses or other
potentially harmful components. We make no warranty regarding the quality,
accuracy, timeliness, truthfulness, completeness or reliability of any ITOVi
Content. You acknowledge and agree that if you rely on any ITOVi Content or
the ITOVi Service, you do so solely at your own risk.
NEITHER ITOVI, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER
PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE
SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION,
COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF
SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH
THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE
SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT ITOVI HAS BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY
SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL ITOVI’S TOTAL LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THESE TERMS OR FROM THE USE OF OR
INABILITY TO USE THE SERVICE EXCEED THE LESSER OF (A) THE
AMOUNTS YOU HAVE PAID TO ITOVI FOR USE OF THE ITOVI SERVICE,
OR (B) ONE HUNDRED DOLLARS ($39.99), IF YOU HAVE NOT HAD ANY
PAYMENT OBLIGATIONS TO ITOVI.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE
ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN
BETWEEN ITOVI AND YOU.
In some jurisdictions, it is not permitted to limit certain types of liability and
therefore such limitations to the extent they exclude such liability may not
apply to you. IN SUCH JURISDICTIONS, ITOVI’S LIABILITY WILL BE
LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE
LAW.
14. Dispute Resolution, Arbitration and Class Action Waiver
Introduction
This Section 14 includes an arbitration agreement and an agreement that all
claims will be brought only in an individual capacity (and not as a class action
or other representative proceeding). Please read it carefully. You may opt out
of the arbitration agreement by following the opt out procedure described
below.
Informal Process First
You agree that in the event of any dispute between you and ITOVi, you will
first contact ITOVi and make a good faith sustained effort to resolve the
dispute before resorting to more formal means of resolution, including without
limitation any court action.
Arbitration Agreement
After the informal dispute resolution process any remaining dispute,
controversy, or claim (collectively, “Claim”) relating in any way to your use of
the Services or any of ITOVi’s other services and/or products, including the
Service, or relating in any way to the communications between you and ITOVi
or any other user of the Service, will be finally resolved by binding arbitration.
This mandatory arbitration agreement applies equally to you and ITOVi.
However, this arbitration agreement does not (a) govern any Claim by ITOVi
for infringement of its intellectual property or access to the Service that is
unauthorized or exceeds authorization granted in these Terms or (b) bar you
from making use of applicable small claims court procedures in appropriate
cases. If you are an individual you may opt out of this arbitration agreement
within thirty (30) days of the first of the date you access or use this Service by
following the procedure described below.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in
arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review
of an arbitration award is limited. Except to the extent the parties agree
otherwise, arbitrators can award the same damages and relief that a court
can award. You agree that the U.S. Federal Arbitration Act governs the
interpretation and enforcement of this provision, and that you and ITOVi are
each waiving the right to a trial by jury or to participate in a class action. This
arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal
dispute resolution procedure, you must send a letter requesting arbitration
and describing your claim to ITOVi, LLC, 660 West 2350 North, Lehi, UT
84043. The arbitration will be administered by the American Arbitration
Association (AAA) under its rules including, if you are an individual, the AAA's
Supplementary Procedures for Consumer-Related Disputes. If you are not an
individual or have used the Services on behalf of an entity, the AAA's
Supplementary Procedures for Consumer-Related Disputes will not be used.
The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration
conducted by telephone, based on written submissions, or in person in the
county where you live or at another mutually agreed location. The arbitration
will be conducted in the English language. Utah law will apply. Judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the
AAA's rules. If you are an individual and have not accessed or used the
Service on behalf of an entity, we will reimburse those fees for claims totaling
less than $10,000, unless the arbitrator determines the claims are frivolous,
and we will not seek attorneys’ fees and costs in arbitration unless the
arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive
authority to resolve any dispute relating to the interpretation, applicability,
unconscionability, arbitrability, enforceability, or formation of this arbitration
agreement, including any claim that all or any part of this arbitration
agreement is void or voidable. However, the preceding sentence will not apply
to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with ITOVi and you are an individual,
you may opt out of this arbitration agreement by sending an email to
legal@iTOVi.me within thirty (30) days of the first of the date you access or
use the Service.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and
not as a plaintiff or class member in any purported class, collective,
representative, multiple plaintiff, or similar proceeding (“Class Action”). The
parties expressly waive any ability to maintain any Class Action in any forum.
If the Claim is subject to arbitration, the arbitrator will not have authority to
combine or aggregate similar claims or conduct any Class Action nor make an
award to any person or entity not a party to the arbitration. Any claim that all
or part of this Class Action Waiver is unenforceable, unconscionable, void, or
voidable may be determined only by a court of competent jurisdiction and not
by an arbitrator. The parties understand that any right to litigate in court, to
have a judge or jury decide their case, or to be a party to a class or
representative action, is waived, and that any claims must be decided
individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the
Arbitration Agreement, if otherwise effective, will be null and void. 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. If for any reason a claim
proceeds in court rather than in arbitration, you and ITOVi each waive any
right to a jury trial.
15. Modification of the Terms
You agree that from time to time, ITOVi may (in its sole discretion) modify,
add or remove any or all parts of these Terms. To update the Terms, ITOVi
will post the changed version and indicate its effective date at the top of the
Terms, as applicable. Such modifications will be effective immediately upon
posting of the modified Terms. Each time you access or use the Service, you
should check to see if the Terms or Privacy Policy has changed. Whether you
do so or not, the Terms and Privacy Policy in effect at each time you access
or use the Service will apply at such time. If we make any material changes,
we will use commercially reasonable efforts to notify you, by means of a
notice on the Service. Your continued use or access of the Service following
the posting of changes to these Terms will indicate your acceptance of those
changes.
16. Additional Terms for ITOVi for iOS
The following terms and conditions apply to you only if you are using the App
from the Apple App Store. To the extent the other terms and conditions of
these Terms are less restrictive than, or otherwise conflict with, the terms and
conditions of this paragraph, the more restrictive or conflicting terms and
conditions in this paragraph apply, but solely with respect to the App from the
Apple App Store. You acknowledge and agree that these Terms are solely
between you and ITOVi, not Apple, and that Apple has no responsibility for
the App or content thereof. Your use of the App must comply with the App
Store Terms of Service. You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance and support services with respect to
the App. In the event of any failure of the App to conform to any applicable
warranty, you may notify Apple, and Apple will refund the purchase price, if
any, for the App to you; to the maximum extent permitted by applicable law,
Apple will have no other warranty obligation whatsoever with respect to the
App, and any other claims, losses, liabilities, damages, costs or expenses
attributable to any failure to conform to any warranty will be solely governed
by these Terms. You and ITOVi acknowledge that Apple is not responsible for
addressing any claims of you or any third party relating to the App or your
possession and/or use of the App, including, but not limited to: (i) product
liability claims; (ii) any claim that the App fails to conform to any applicable
legal or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation. You and ITOVi acknowledge that, in the event
of any third-party claim that the App or your possession and use of that App
infringes that third party’s intellectual property rights, ITOVi, not Apple, will be
solely responsible for the investigation, defense, settlement and discharge of
any such intellectual property infringement claim to the extent required by
these Terms. You must comply with applicable third party terms of agreement
when using the App. You and ITOVi acknowledge and agree that Apple, and
Apple’s subsidiaries, are third party beneficiaries of these Terms as they
relate to your license of the App, and that, upon your acceptance of these
Terms, Apple will have the right (and will be deemed to have accepted the
right) to enforce these Terms against you as a third party beneficiary thereof.
17. Miscellaneous
These Terms are the complete and exclusive agreement between you and
ITOVi with respect to the subject matter of these Terms, and they supersede
all prior or contemporaneous, oral or written, proposals, understandings,
representations, conditions, warranties, and all other communications
between you and ITOVi with respect to the subject matter of these terms.
These Terms, and any rights and licenses granted hereunder, may not be
transferred or assigned by you, but may be assigned by ITOVi without
restriction. These Terms may not be explained or supplemented by any prior
course of dealings or trade by custom or usage. These Terms shall be
governed by the laws of the State of California, notwithstanding any principles
of conflicts of law. The section headings used herein are for convenience only
and will not affect the interpretation of these Terms. No waiver by either party
of any breach or default hereunder will be deemed to be a waiver of any
preceding or subsequent breach or default. If any provision of these Terms
will be unlawful, void, or for any reason unenforceable, then that provision will
be deemed severable from these Terms and will not affect the validity and
enforceability of any remaining provisions. No agency, partnership, joint
venture, or employment relationship is created as a result of the Terms and
neither party has any authority of any kind to bind the other in any respect.
18. Questions
Any questions, complaints or claims with respect to the Service should be
directed to:
ITOVi, LLC 660 West 2350 North, Lehi, UT 84043
Email: support@iTOVi.com