Last updated date: March 29, 2024
PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND FEELING GREAT CORPORATION (“FEELING GREAT,” “WE,” OR “OUR”).
DO NOT USE THESE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
SECTION 14 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
BY INSTALLING OR USING THE FEELING GREAT MOBILE APPLICATION (“APPLICATION”), REGISTERING AN ACCOUNT OR ACCESSING OR USING ANY DATA, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE APPLICATION (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OF AGE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE APPLICATION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE APPLICATION OR SERVICES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY FEELING GREAT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of this Agreement available within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service within the Application. We will also update the “Last Updated” date at the top of this Agreement. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Application and/or the Services. Otherwise, your continued use of the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE APPLICATION TO VIEW THE THEN-CURRENT TERMS OF USE.
1. USE OF THE SERVICES.
1.1 Generally. Through the Services, Feeling Great makes available a novel approach designed to help you change the way you feel by using positive reframing techniques to magnify motivation and challenge negative thoughts. The Services provide a learning platform, including interactive videos, and an artificial intelligence powered chatbot (“Chatbot”) designed to analyze and understand your thoughts and emotions and guide yourself to feeling happier. As part of the Services, you may submit certain Inputs and other data related to your thoughts and emotions, and share other information about yourself, including your Registration Data (all such information, “Your Content”). The use of Your Content by Feeling Great will be subject to the terms of our Privacy Policy located at: support@feelinggreat.com.
1.2 Limitations of Services. The Services, including the Chatbot, are not intended to provide medical advice to users and are provided for informational purposes only. YOU ACKNOWLEDGE AND AGREE THAT FEELING GREAT DOES NOT PROVIDE ANY MEDICAL, PSYCHOLOGICAL, OR OTHER CLINICAL ADVICE OF ANY KIND OR MAKE ANY MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL DECISIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHO DIRECTS YOU TO USE THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT FEELING GREAT DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, VERACITY, COMPLETENESS, APPROPRIATENESS, OR SAFETY OF ANY INFORMATION OR RESOURCES RECEIVED OR PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES. FEELING GREAT DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, CLINICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION OR RESOURCES MADE AVAILABLE THROUGH THE SERVICES. FEELING GREAT DOES NOT ITSELF PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR QUALIFICATIONS (E.G., PHYSICIAN OR OTHER MEDICAL OR PSYCHOLOGICAL PROFESSIONAL SERVICES), AND THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL ADVICE OR OPINIONS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL, MENTAL, PSYCHOLOGICAL, OR OTHER HEALTH CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES. THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENCY ATTENTION. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL 911 OR CONTACT A SUICIDE PREVENTION HOTLINE SUCH AS THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255. IF YOU ARE OUTSIDE OF THE UNITED STATES, PLEASE CONTACT YOUR LOCAL CRISIS LINE: www.iasp.info/crisis-centres-helplines/.
1.3 No Physician-Patient Relationship with Feeling Great. The information generated by Feeling Great or the Services should not be interpreted as a substitute for a professional therapist or other healthcare professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a medical, mental, psychological, or health condition. Nothing contained in the Services should be construed as such advice or diagnosis. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND FEELING GREAT OR ANY OTHER USERS OF THE SERVICES. You are urged and advised to seek the advice of a professional therapist, physician or a medical professional with any questions you may have regarding your mental health, or any other information or resources that may be referenced, discussed, or offered under the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the Services, you shall consult your physician. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you agree to follow the advice of your physician.
1.4 Feeling Great Properties. The Application and Services, and the information and content available in the Application and Services (as these terms are defined herein) (each, a “Feeling Great Property” and collectively, the “Feeling Great Properties”) are protected by copyright laws throughout the world.
1.5 Application License. Subject to your compliance with this Agreement, Feeling Great grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs on iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.6 Open Source Software. Some of the software in our Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1.5 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.7 Updates. YYou understand that the Feeling Great Properties are evolving. As a result, Feeling Great may require you to accept updates to the Feeling Great Properties that you have installed on your computer or mobile device. You acknowledge and agree that Feeling Great may update the Feeling Great Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Feeling Great Properties.
1.8 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Feeling Great Properties or any portion of Feeling Great Properties, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Feeling Great Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Feeling Great Properties in order to build a similar or competitive website, application or service; (d) except as expressly stated herein, no part of Feeling Great Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Feeling Great Properties. Any future release, update or other addition to Feeling Great Properties shall be subject to this Agreement. Feeling Great, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of any Feeling Great Property terminates the licenses granted by Feeling Great pursuant to this Agreement.
2. REGISTRATION.
2.1 Registration. In order to access certain features of Feeling Great Properties, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Application (“Account”). To become a Registered User, you must be at least eighteen (18) years of age. In creating an Account, you must provide complete and accurate information about yourself (“Registration Data”), and maintain and promptly update such Registration Data to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts.
2.2 Account. You represent that you are not a person barred from using Feeling Great Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (i) notify Feeling Great immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Feeling Great has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Feeling Great has the right to suspend or terminate your Account and refuse any and all current or future use of Feeling Great Properties (or any portion thereof). You agree not to create an Account or use Feeling Great Properties if you have been previously removed by Feeling Great, or if you have been previously banned from any of the Feeling Great Properties.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Feeling Great Properties, including but not limited to, a mobile device that is suitable to connect with and use Feeling Great Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Feeling Great Properties.
3. CONTENT.
3.1 User Responsibility for Content. You acknowledge that all content on the Services is the sole responsibility of the party from whom such content originated. This means that you, and not Feeling Great, are entirely responsible for all content that you upload, post, message, text, transmit or otherwise make available through the Services, including all Inputs that you submit to our Chatbot.
3.2 Use of AI. The Feeling Great Properties use software and technology, including artificial intelligence and deep learning platforms, algorithms, and models, including the Chatbot (“Models”), to process user inputs and responses to queries from the Chatbot (“Inputs”, which are part of Your Content hereunder), and generate and return outputs based on such Inputs, including questions, recommendations, and responses designed to better understand your thoughts and feelings (“Outputs”). Feeling Great does not claim ownership of any of your Inputs or Outputs. In addition to the license granted in Section 4.3 (Your Content), you acknowledge that Inputs (as well as the remainder of Your Content) and Outputs may be used by Feeling Great to train, develop, enhance, evolve, and improve its (and its affiliates’) models, algorithms, and related technology, products, and services (including for labeling, classification, content moderation, and model training purposes), as well as for marketing and promotional purposes. As such, you hereby grant to Feeling Great a non-exclusive, irrevocable, perpetual, worldwide, fully-paid and royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right and license to use any Inputs and Outputs made available by you or otherwise generated in connection with your use of the Services at any point, in connection with the purposes described above or otherwise as set forth herein.
3.3 AI Disclaimer. You acknowledge that the Outputs are based on your Inputs, as well as Models and information, and, that Feeling Great has no control over any such Inputs, Models or related information. Accordingly, all Outputs are provided “as is” and with “all faults”, and Feeling Great makes no representations or warranties of any kind or nature with respect to any Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for your use of your Outputs created through the Services, and you assume all risks associated with your use of your Outputs, including any potential copyright infringement claims from third parties or any disclosure of your Outputs that personally identifies you or any third party. Furthermore, Feeling Great will have no liability for the unavailability of any Models, or any third party’s decision to discontinue, suspend or terminate any third-party provided Models. You understand that additional license requirements may apply to certain Models, and will be included in information for such Models as part of your use of the Services and that you must review and comply with such requirements for the Models used.
3.4 Chatbot. Feeling Great provides a Chatbot that responds to user requests with automated replies, leveraging certain third party services or applications to power the Services’ chatbot function, which are integrated into the Chatbot function, including without limitation as made available by OpenAI LLC and its affiliates (each provider of such third-party service or application, a “Third Party Provider”). YOU, AND NOT FEELING GREAT, SHALL BE SOLELY RESPONSIBLE FOR YOUR USE OF THESE FUNCTIONS, INCLUDING ANY USE OF THE RESULTS OF ANY INPUT AND DECISIONS MADE OR ACTIONS TAKEN BASED ON ANY INPUT. YOU ACKNOWLEDGE AND AGREE THAT ANY CONDUCT YOU ENGAGE IN AS A RESULT OF THE INFORMATION PROVIDED BY THE CHATBOT OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH FEELING GREAT OR THIRD PARTY PROVIDERS IS AT YOUR OWN RISK. BECAUSE CHATBOTS USE ARTIFICIAL INTELLIGENCE TO COMMUNICATE WITH YOU, OUR CHATBOT(S) MAY PROVIDE INFORMATION THAT IS AN INACCURATE RESPONSE TO YOUR INPUTS IN ITS INTERACTIONS WITH YOU. YOU AGREE THAT FEELING GREAT WILL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR THE CHATBOT (OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH FEELING GREAT OR THIRD PARTY PROVIDERS) PROVIDING INACCURATE INFORMATION TO YOU.
3.5 Storage. Feeling Great has no responsibility or liability for the deletion or accuracy of Your Content; the failure to store, transmit or receive transmission of Your Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Feeling Great Properties. You agree that Feeling Great retains the right to create reasonable limits on Feeling Great’s use and storage of Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages or other documentation accompanying the Services and as otherwise determined by Feeling Great in its sole discretion.
4. OWNERSHIP.
4.1 Feeling Good Properties. Except with respect to Your Content, you agree that (a) Feeling Great and its suppliers own all rights, title and interest in Feeling Great Properties and (b) you have no right or title in or to any content or other data that appears on or in the Feeling Great Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Feeling Great Properties.
4.2 Trademarks. “Feeling Great,” and other related graphics, logos, trademarks, service marks and trade names used on or in connection with Feeling Great Properties are the trademarks of Feeling Great and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Feeling Great Properties are the property of their respective owners.
4.3 Your Content. Feeling Great does not claim ownership of Your Content. You grant Feeling Great a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating the Services and providing Feeling Great Properties to you and to our other Users, and on a de-identified, aggregated basis, to improve and enhance the Services and Feeling Great Properties, train Feeling Great’s Models, and for other development, diagnostic, corrective and commercial purposes for those or other offerings of Feeling Great. You agree that you, not Feeling Great, are responsible for all of Your Content that you make available on or in the Feeling Great Properties.
4.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Feeling Great through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Feeling Great has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Feeling Great a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and improvement of Feeling Great Properties and/or Feeling Great’s business.
5. USER CONDUCT. As a condition of use, you agree not to use Feeling Great Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) to take any action that (i) infringes any patent, trademark, trade secret, copyright, right of publicity, privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Feeling Great’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Feeling Great; (vi) interferes with or attempts to interfere with the proper functioning of Feeling Great Properties or uses Feeling Great Properties in any way not expressly permitted by this Agreement; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Feeling Great Properties, including but not limited to violating or attempting to violate any security features of Feeling Great Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Feeling Great Properties, introducing viruses, worms, or similar harmful code into Feeling Great Properties, or interfering or attempting to interfere with use of Feeling Great Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Feeling Great Properties.
6. INVESTIGATIONS. Feeling Great may, but is not obligated to, monitor or review Feeling Great Properties at any time. Although Feeling Great does not generally monitor user activity occurring in connection with Feeling Great Properties, if Feeling Great becomes aware of any possible violations by you of any provision of this Agreement, Feeling Great reserves the right to investigate such violations, and Feeling Great may, at its sole discretion, immediately terminate your license to use Feeling Great Properties, without prior notice to you.
7. THIRD-PARTY SERVICES.
7.1 Third-Party Websites and Applications. Feeling Great Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Feeling Great Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Feeling Great. Feeling Great is not responsible for any Third-Party Websites or Third-Party Applications. Feeling Great provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Application, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (each, an “App Store”). You acknowledge that this Agreement is between you and Feeling Great and not with the App Store. Feeling Great, not the App Store, is solely responsible for Feeling Great Properties, including the Application, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Feeling Great Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Feeling Great Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
7.3 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Feeling Great only, and not Apple, and (ii) Feeling Great, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Feeling Great and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Feeling Great.
(d) You and Feeling Great acknowledge that, as between Feeling Great and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Feeling Great acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Feeling Great and Apple, Feeling Great, 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 this Agreement.
(f) You and Feeling Great acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
8. FEES AND PURCHASE TERMS.
8.1 Third-Party Service Provider. Feeling Great uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If you make a purchase on the Services, you will be required to provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/legal/ssa) and hereby consent and authorize the Feeling Great and Stripe to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
8.2 Payment. You shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. By providing Feeling Great and/or our Third-Party Service Provider with your payment information, you agree that Feeling Great and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Feeling Great hereunder. You shall immediately notify Feeling Great of any change in your payment information to maintain its completeness and accuracy. Feeling Great reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Feeling Great and/or our Third-Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Services are non-refundable.
8.3 Subscriptions. If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals in accordance with your elections at the time of purchase. Feeling Great reserves the right to change the timing of our billing. Feeling Great reserves the right to change the Subscription pricing at any time. If changes to the Subscription price occur that impact your Subscription, Feeling Great will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 8.3(a)(i) (Cancelling Subscriptions Purchased via Feeling Great) or 8.3(a)(ii) (Cancelling Subscriptions Purchased via a Third-Party Application Store). Feeling Great is not obligated to provide the Services to you until Feeling Great accepts your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication.
(a) Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew at Feeling Great’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews (i.e., weekly, monthly, annually, etc.) will be designated at the time at you sign up for the Subscription. By subscribing, you authorize Feeling Great to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Feeling Great does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Feeling Great may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
(i) Cancelling Subscriptions Purchased via Feeling Good. If you purchased your Subscription directly from Feeling Great, you may cancel your Subscription by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must contact Feeling Great at support@feelinggreat.com, or log in and cancel your membership from your Account settings page.
(ii) Cancelling Subscriptions Purchased via a Third-Party Application Store. If you wish to cancel, change, or terminate a Subscription that you purchased from an App Store, you must do so prior to the renewal commencement date via such App Store.
(iii) Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
(b) Upgrades and Downgrades. Feeling Great may offer Subscriptions at different price tiers. If you choose to upgrade your Subscription in the middle of a Subscription period, such upgrade will take effect immediately and any incremental fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the fees will reflect any such upgrades. If you choose to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of the Services as available, and Feeling Great does not accept any liability for such loss.
8.4 Taxes. The Fees will include any applicable Sales Tax. If any Services, or payments for any Services, under this Agreement are subject to Sales Tax in any jurisdiction and Feeling Great has not included the applicable Sales Tax within the schedule of Fees, Feeling Great will be responsible for the payment of such Sales Tax to the relevant tax authority and for any liability or expense, including, but not limited to, any penalties or interest, that may attach thereto. Upon your request, we will provide you with official receipts issued by the appropriate taxing authority, or other such evidence that we have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.5 Free Trials and Promotional Access. Any free trial or other promotion that provides users access to the Services must be used within the specified time of the trial. At the end of the trial or promotional period, your use of that Services will automatically roll into a paid Subscription at our then-current Service Subscription Fees and you will be charged for such Subscription as set forth in Section 8.3 (Subscriptions) if you do not cancel prior to Subscription Service Commencement Date. If you are inadvertently charged for a Subscription and provide us with written notice of the error, Feeling Great will have the charges reversed.
9 INDEMNIFICATION. You agree to indemnify and hold Feeling Great, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Feeling Great Party” and collectively, the “Feeling Great Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Feeling Great Property; (b) your violation of this Agreement; (c) your violation of any rights of another party, including any Registered Users; (d) your violation of any applicable laws, rules or regulations; or (e) Your Content (including Inputs). Feeling Great reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Feeling Great in asserting any available defenses. This provision does not require you to indemnify any of the Feeling Great Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to Feeling Great Properties.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF FEELING GREAT PROPERTIES IS AT YOUR SOLE RISK, AND FEELING GREAT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FEELING GREAT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE APPLICATION.
(a) THE FEELING GREAT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) FEELING GREAT PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF FEELING GREAT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF FEELING GREAT PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY DATA DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH FEELING GREAT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS FEELING GREAT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH DATA.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FEELING GREAT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FEELING GREAT OR THROUGH FEELING GREAT PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, FEELING GREAT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT FEELING GREAT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 Not Intended for Emergency Use. FEELING GREAT’S GOAL IS TO PROVIDE HELPFUL AND ACCURATE INFORMATION ON THE SERVICES. HOWEVER, THE SERVICES ARE DEPENDENT UPON A NUMBER OF FACTORS THAT ARE OUTSIDE THE CONTROL OF FEELING GREAT. USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, CALL 911.
10.3 Medical Disclaimer. THE CLAIMS MADE IN CONNECTION WITH THE APPLICATION OR THROUGH THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR MEDICAL CONDITION.
FEELING GREAT DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. THE CONTENTS OF THE APPLICATION, INCLUDING TEXT, GRAPHICS, IMAGES, AND OTHER DATA CREATED BY THE SERVICES OR OTHERWISE CONTAINED IN THE APPLICATION OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR YOUR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION.
10.4 No Medical Services. THE FEELING GREAT PARTIES DO NOT THEMSELVES PROVIDE SERVICES TO YOU REQUIRING PROFESSIONAL LICENSURE OR OTHER SIMILAR QUALIFICATIONS (E.G., PHYSICIAN, PSYCHOLOGIST, OR OTHER CLINICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE CHATBOT AND/OR APPLICATION DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL OR OTHER CLINICAL ADVICE OR OPINION.
10.5 No Physician-Patient Relationship. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY.
10.5 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE FEELING GREAT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE FEELING GREAT PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF FIRST RESPONDERS OR ANY OTHER USERS OF THE APPLICATION, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FEELING GREAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FEELING GREAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF FEELING GREAT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE FEELING GREAT PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE FEELING GREAT PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR YOUR CONTENT; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON FEELING GREAT PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO FEELING GREAT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FEELING GREAT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FEELING GREAT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FEELING GREAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FEELING GREAT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO FEELING GREAT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FEELING GREAT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FEELING GREAT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FEELING GREAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 Data. FEELING GREAT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF YOUR CONTENT, DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FEELING GREAT AND YOU.
12. TERMINATION.
12.1 Termination. This Agreement shall remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by accessing your profile within the Application and selecting the button to delete your Account. Feeling Great may terminate your Account if (a) you are in breach of this Agreement; (b) if Feeling Great decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Feeling Great will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
12.2 Effect of Termination. Termination of any portion of the Services includes removal of access to such portion and barring of further use of such portion of the Services. Termination of all Services also includes deletion of Your Content, your password and all related information, files and data associated with or inside your Account (or any part thereof). Upon termination of any portion of the Services, your right to use such portion will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Feeling Great will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. INTERNATIONAL USERS. Feeling Great Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Feeling Great intends to announce such Services in your country. Feeling Great Properties are controlled and offered by Feeling Great from its facilities in the United States of America. Feeling Great makes no representations that Feeling Great Properties are appropriate or available for use in other locations. Those who access or use Feeling Great Properties from other countries do so at their own volition and are responsible for compliance with local law.
14. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Feeling Great arbitrate disputes against each other.Dispute Resolution:
PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FEELING GREAT HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND FEELING GREAT BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 14 CAREFULLY.
14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Feeling Great agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Feeling Great may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Feeling Great may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
14.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Feeling Great. If that occurs, Feeling Great is committed to working with you to reach a reasonable resolution. You and Feeling Great agree that good faith informal efforts to resolve Disputes can result in a Input, low‐cost and mutually beneficial outcome. You and Feeling Great therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
(a) The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Feeling Great that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@feelinggreat.com, or by mail to Feeling Great Corporation, 584 Castro St, San Francisco, CA 94114. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
(b) The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3 Waiver of Jury Trial. YOU AND FEELING GREAT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Feeling Great instead elect that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4 Waiver of Class and Other Non-Individualized Relief. YOU AND FEELING GREAT AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 14.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 14.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Feeling Great agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco County in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Feeling Great from participating in a class-wide settlement of claims.
14.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Feeling Great agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
(a) A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
(b) If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
(c) Unless you and Feeling Great otherwise agree, or the Batch Arbitration process discussed in Section 14.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
(d) You and Feeling Great agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 14.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
14.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Feeling Great need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Feeling Great agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Feeling Great by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
(a) All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Feeling Great.
(b) You and Feeling Great agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: support@feelinggreat.com, or Feeling Great Corporation, 584 Castro St, San Francisco, CA 94114, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Feeling Great as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Feeling Great makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Feeling Great at: support@feelinggreat.com, or Feeling Great Corporation, 584 Castro St, San Francisco, CA 94114, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Feeling Great will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
15. ALERTS AND NOTIFICATIONS.
By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail and push notifications, as further described in our Privacy Policy.
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and Feeling Great may take place via electronic means, whether you visit Feeling Great Properties or send Feeing Great e-mails, or whether Feeling Great posts notices on Feeling Great Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Feeling Great in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Feeling Great provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
16.2 Release. YOU HEREBY RELEASE THE FEELING GREAT PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES.
You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in this Agreement are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
16.3 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Feeling Great’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure. Feeling Great shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Feeling Great Properties, please contact us at support@feelinggreat.com,. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Feeling Great agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
16.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
16.8 Notice. Where Feeling Great requires that you provide an e-mail address, you are responsible for providing Feeling Great with your most current e-mail address. In the event that the last e-mail address you provided to Feeling Great is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Feeling Great’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Feeling Great at the following email address: support@feelinggreat.com, or address: Feeling Great Corporation, 584 Castro St, San Francisco, CA 94114. Such notice shall be deemed given when received by Feeling Great by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11 Export Control. You may not use, export, import, or transfer Feeling Great Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Feeling Great Properties, and any other applicable laws. In particular, but without limitation, Feeling Great Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Feeling Great Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Feeling Great Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Feeling Great are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Feeling Great products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.12 Entire Terms. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
