Last Updated: January 15, 2017
1. Acceptance of Terms
By accessing or using the website located at https://soflete.com or our mobile application (collectively, the “Site”) provided by SOFlete (“SOFlete,” “we” or “us”) that link to these Terms, you agree to be bound by these Terms and all of the terms incorporated herein by reference.
By accepting these Terms, you represent that you are 18 years of age or older and that, if you have accepted these Terms on behalf of any person or entity, you represent that you have legal authority to do so and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
If you do not agree to every provision of these Terms, you may not access or use the Site, or order, receive, or use products made available through the Site (the “Products”) or any services, including without limitation any Subscription (as defined below) made available through the Site (collectively, the “Services”).
By accessing or using the Site, you represent and warrant that you have not been previously suspended or removed from the Site, or engaged in any activity that could result in suspension or removal from the Site.
These Terms may be revised at any time for any reason, and SOFlete may provide you notice of these changes by any reasonable means, including by providing notice through the Site. You can determine when we last updated the Site by referring to the “Last Updated” legend at the top of these Terms. By continuing to access, browse or use the Site, or order, receive or use the Products or Services, you confirm your acceptance of the revised Terms and all the terms incorporated herein by reference. We strongly recommend that you periodically visit this page of the Site to review these Terms. If you do not agree to the revised Terms, you may not access or use the Site, or order, receive, or use Products or Services made available through the Site.
In order to access and use certain areas or features of the Site, you will need to register for a SOFlete account. Each registration is for a single user only.
By creating a SOFlete account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your account. Any changes to your registration information may be made by sending such changes to firstname.lastname@example.org. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Site.
By creating a SOFlete account, you also consent to receive electronic communications from SOFlete (e.g., via email or by posting notices to the Site). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
3. Terms of Subscriptions
Subscriptions. We offer various workout subscription plans for teams and individual athletes (each, a “Subscription”). For more information about our Subscriptions, please visit the “Train with Us” page on our website.
Continuous Subscriptions. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) SOFLETE (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU AT INTERVALS CONSISTENT WITH YOUR SELECTED SUBSCRIPTION FREQUENCY (E.G., MONTHLY OR ANNUALLY) FOR YOUR SUBSCRIPTION, IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES, FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITE OR SUBSCRIPTION IN ACCORDANCE WITH THESE TERMS.
Subscription Modifications and Cancellations. YOU MAY MODIFY OR CANCEL YOUR SUBSCRIPTION BY CONTACTING US DIRECTLY AT email@example.com. MODIFICATIONS OR CANCELLATIONS MAY TAKE UP TO 5 BUSINESS DAYS TO PROCESS. ANY PAYMENT THAT IS MADE PRIOR TO THE PROCESSING OF ANY SUBSCRIPTION CHANGE CANNOT BE MODIFIED OR CANCELLED, AND YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED FOR SUCH CHARGES.
In the event you cancel your Subscription, please note that we may still send you promotional communications about SOFlete, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your SOFlete account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
5. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Subscription, we will provide notice of such changes prior to your next payment being due in accordance with Section 2. We will not, however, be able to notify you of changes in any applicable taxes. Your use of the Subscription after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your Subscription(s) in accordance with the cancellation policies set forth in Section 3, as applicable.
All of our Products and Services are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and Services without prior notice. We attempt to display as accurately as possible the colors and images of our Products that appear on the Site. We cannot guarantee that your computer monitor’s display of any color will be accurate.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
7. Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. Shipping is handled by a third party courier. Actual delivery dates may vary. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery.
9. No Resale
You are not permitted to resell or otherwise use the Products or Services for commercial purposes.
10. Returns and Refunds
If you are dissatisfied with any Product you purchased through the Site, you may return the Product within thirty (30) days of the date you purchased the Product by mailing the Product and a copy of your invoice to SOFlete, LLC, 1939 Lejeune Blvd, Jacksonville, North Carolina, 28546 USA. All returned Products must be unused and in their original packaging. After we receive your returned Product, we will issue you a refund for the price you paid for the Product (less any applicable shipping and handling charges). If you do not comply with the terms of this section, you will be ineligible to receive a refund. We are unable to issue refunds for Subscriptions, Services, products delivered digitally, and nutrition products (such as protein powder). However, you may cancel your Subscription at any time by following the procedures set forth in Section 3.
11. License to Access and use the Site and Site Content
Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the SOFlete logo and all workout plans, designs, text, graphics, pictures, information, data, software, User Content (as defined in Section 14), other files and the selection and arrangement thereof (collectively, “Content”) are the property of SOFlete or our licensors or users, as applicable, and are protected by U.S. and international copyright and other laws.
Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicenseable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership inters in the Site or Content under these Terms, or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.
However, such license is subject to these Terms and does not include any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Site or Content, except as expressly permitted by us, (f) use the Site to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (g) interfere with the Site or servers or networks used in connection with the Site; or (h) use the Site or Content other than for their intended purposes.
Any use of the Site or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of SOFlete or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Content.
You are hereby granted a personal, non-exclusive, non-transferable, non-sublicenseable license to access and make personal, non-commercial use of the Site and Content, subject to these Terms. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the Site or Content under these Terms, or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.
The SOFlete logo, and any other SOFlete product or service names, trademarks, logos, or other indicia (“Marks”) that may appear on the Site, Services, or Products are the property of SOFlete or its subsidiaries, affiliates or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission. Nothing contained in the Site shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of SOFlete or such third party that may own such Mark. Your misuse of any such Mark, or any other Content, is strictly prohibited.
13. Legal Requirements; Privacy Statement
Where SOFlete has a good faith belief that such action is necessary to comply with a judicial proceeding, court order, warrant, administrative order, civil investigative demand, subpoena, or other valid process, SOFlete may disclose IP addresses, personal information, and any contents of the Site where it is legally compelled to do so. Please see the SOFlete’s Privacy Statement located at https://www.soflete.com for additional information relating to the privacy and security of information collected hereunder.
14. User Content
You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Site. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Site. IF YOU CHOOSE TO SUBMIT TO US, OR OTHERWISE MAKE ANY PERSONAL INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND SOFLETE SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR.
You agree that you will not, and will not permit anyone else to, directly or indirectly:
(1) Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable;
(2) Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data;
(3) Forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Site.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
15. Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Site or to our pages or feeds on third party social media platforms (e.g., SOFlete’s Facebook page, Instagram page or Twitter feed), you hereby grant SOFlete a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes, however, SOFlete will only share personal information that you provide in accordance with our Privacy Statement at https://www.soflete.com/.
You acknowledge and agree that Company may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of SOFlete, its customers or the public.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about SOFlete, the Site, our Products or Services (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of SOFlete. SOFlete shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
17. Linked Sites
We have not reviewed all of the websites linked to the Site and are not responsible for the content of any third-party pages or any other websites linked to the Site. Nothing in the Site, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by SOFlete. Your choice to link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. SOFlete reserves the right not to link, or to remove the link, to a particular website at any time. Any links to third party websites are provided as a convenience to you and are neither owned nor operated by SOFlete. We have no control over these linked websites and make no representations or warranties with respect to these linked websites. Your viewing and use of any third-party websites is at your sole discretion and risk.
To the fullest extent permitted by applicable law, you agree to defend, hold harmless and indemnify SOFlete, its subsidiaries and affiliates, business partners, contractors, clients and service providers, and their respective officers, employees, agents and representatives (collectively, the “SOFlete Parties”) from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals, made by any third party (including, without limitation, if you purchase a team subscription, claims made by your athletes in connection with your use of the Services), relating to or arising from your use of the Site, Services, any User Content that you Transmit to or through the Site, any Feedback you provide, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Site or the Services. You further agree that SOFlete shall have control of the defense or settlement of any third party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and SOFlete.
19. Health and Medical Information.
THE INFORMATION, STATEMENTS AND PRODUCTS (INCLUDING, BUT NOT LIMITED TO, DIETARY SUPPLEMENTS) ON THE SITE HAVE NOT BEEN EVALUATED BY THE U.S. FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE.
THE SITE AND THE SERVICES CONTAIN INFORMATION ABOUT EXERCISE, HEALTH, AND NUTRITION. THE INFORMATION CONTAINED ON THE SITE AND THROUGH THE SERVICES IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE INFORMATION CONTAINED ON THE SITE AND THROUGH THE SERVICES IS NOT INTENDED IN ANY WAY TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND SHOULD NOT BE RELIED ON FOR MEDICAL DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER BEFORE STARTING A NEW EXERCISE ROUTINE OR NUTRITION REGIMEN OR WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE. YOU SHOULD CONSULT WITH YOUR DOCTOR BEFORE USING ANY PRODUCT OR SERVICE DISCUSSED ON THE SITE.
YOU ARE SOLELY RESPONSIBLE FOR CONDUCTING ALL EXERCISES IN A SAFE MANNER AND AT A LEVEL THAT IS APPROPRIATE FOR YOU, INCLUDING WITH RESPECT TO YOUR KNOWN AND UNKNOWN MEDICAL CONDITIONS AND YOUR INDIVIDUAL LEVEL OF FITNESS.
20. Firearm Safety
CERTAIN SERVICES INCLUDE FIREARMS TRAINING. YOU ARE SOLELY RESPONSIBLE FOR THE SAFE USE OF YOUR FIREARM, INCLUDING WITHOUT LIMITATION THE PROPER HANDLING, LOADING, UNLOADING, AND DISCHARGING OF YOUR FIREARM. ALL FIREARMS MUST BE UNLOADED FOR DRY-FIRE DRILLS AND IT IS SOLELY YOUR RESPONSIBILITY TO ENSURE THAT YOUR FIREARM IS UNLOADED. YOU AGREE TO FOLLOW ALL SAFETY INSTRUCTIONS PROVIDED BY THE INSTRUCTOR, AND TO ADHERE TO ANY ADDITIONAL RULES OF THE APPLICABLE FIRING RANGE OR TRAINING FACILITY.
THE SITE, THE CONTENT, AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SOFLETE NOR THE SOFLETE PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE SITE CONTENT; (C) USER CONTENT; (D) ANY PRODUCT OR SERVICE; OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE. IN ADDITION, THE SOFLETE PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY RESULTS WILL BE ACHIEVED, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE SOFLETE PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THE SITE AND SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE SOFLETE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE OR SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE SOFLETE PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE OR SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE SOFLETE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SITE AND SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE AND SERVICES.
THE SOFLETE PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
22. Limitation of Liability; Waiver
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SERVICES. ANY USE OF THE SITE OR THE SERVICES IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT, IN CONNECTION WITH YOUR PARTICIPATION IN THE SERVICES, INCLUDING ENGAGING IN ANY EXERCISE PROGRAM, YOU MAY BE EXPOSED TO A VARIETY OF HAZARDS AND RISK, FORESEEN AND UNFORESEEN, WHICH MAY OR MAY NOT BE INHERENT IN THOSE ACTIVITIES. THESE INHERENT RISKS INCLUDE BUT ARE NOT LIMITED TO, SERIOUS PERSONAL INJURY, PROPERTY DAMAGE AND DEATH. BY USING THE SITE AND THE SERVICES, YOU AGREE AND UNDERSTAND THAT INJURIES AND DAMAGES CAN OCCUR BY NATURAL CAUSES OR BY THE ACTS OF OTHER PERSONS OR THIRD PARTIES, EITHER AS A RESULT OF NEGLIGENCE OR BECAUSE OF OTHER REASONS. YOU ARE PERSONALLY RESPONSIBLE FOR ALL COSTS AND/OR RISKS ASSOCIATED WITH YOUR PARTICIPATION IN SUCH ACTIVITIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SOFLETE PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITE, SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY SOFLETE PARTY, OR FROM EVENTS BEYOND THE SOFLETE PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SOFLETE PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SOFLETE PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF PRODUCTS OR SERVICES PURCHASED FROM THE SITE EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE SOFLETE PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE SOFLETE PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH SOFLETE FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
23. ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SOFLETE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
YOU AND SOFLETE AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, THE PRODUCTS SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES. Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under these Terms that a court can award under these Terms. You and SOFlete agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address. SOFlete further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and SOFlete are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and the termination of your use of the Products. REGARDLESS OF THE FORUM, YOU AND SOFLETE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and SOFlete agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall 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.
24. Modifications to the Site and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the provision of any Products or Services at any time.
25. Special Admonitions for International Use
This Site is hosted in the United States and are intended for use by residents of the United States of America only. All matters relating to the Site are governed exclusively by the laws the State of North Carolina in the United States of America and not the jurisdiction in which you are located. If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information, you explicitly authorize such transfer.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site and to order or receive and use the Products or Services, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
27. Governing Law and Jurisdiction
SOFlete operates the Site from North Carolina, U.S.A. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, U.S.A. without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in North Carolina, shall not apply. The exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts of North Carolina, U.S.A., or the United States District Court for the Eastern District of North Carolina and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms and agree to service of process on you by e-mail to the address you have submitted on the Site, if any, and by any other means permitted by law.
All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to SOFlete at the following contact: firstname.lastname@example.org. Any notices to you may be made via either e-mail or postal mail to the address in SOFlete’s records or via posting on the Site. Please report any violations of these Terms to SOFlete at the contact listed above.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your SOFlete account: all defined terms and Sections 2, 3, 4, 6, 7, 8 through 25, and 27 through 31.
These Terms constitute the entire agreement between you and SOFlete relating to your access to and use of the Site and your order, receipt and use of Products and Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of SOFlete. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and SOFlete’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
32. Procedure for Making Claims of Copyright Infringement
We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Site infringes your copyright, please provide our copyright agent the written information specified below.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site;
- Your address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
SOFlete’s copyright agent for notice of claims of copyright infringement can be reached as follows:
Wyricks Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, NC 27607