Terms of USE
A comprehensive guide to what Struct Club offers, and what you can expect from Struct Club, Inc.
Effective as of March 1, 2022; Version 2
WELCOME TO STRUCT CLUB!
Struct Club, Inc. (“Struct Club”) offers a mobile application (the “App”) for fitness professionals to design fitness instruction. These Terms of Use (the “Terms of Use”) govern your use of the version of the Struct Club services and resources available or enabled via our App (the “Services”). In addition to the Terms of Use, please read our Privacy Policy to learn more about on how your submitted content and information is handled by Struct Club.
BY CLICKING ON THE “I ACCEPT” BUTTON, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING THE APP, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH STRUCT CLUB, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER OR ENTERPRISE CUSTOMER, AS APPLICABLE, IN THE ORDER FORM OR AT THE TIME OF REGISTRATION. FOR CLARITY, IF YOU ACCESS THE SERVICES, APP OR ANY OTHER STRUCT CLUB PROPERTY UNDER AN ENTERPRISE SUBSCRIPTION, THEN “YOU” REFERS TO THE LEGAL ENTITY THAT HAS PURCHASED SUCH ENTERPRISE SUBSCRIPTION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS APP OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 16 OF THESE TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
IF YOU OPT IN TO A SUBSCRIPTION ON A MONTHLY OR ANNUAL BASIS, THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT STRUCT CLUB’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE SUBSCRIPTION PROVISION BELOW.
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 the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT The Agreement IS subject to change by Struct Club in its sole discretion at any time. When changes are made, Struct Club will make a new copy of the Terms of Use available in the App and any new Supplemental Terms will be made available from within, or through, the affected Service on the App. We will also update the “Last Updated” date at the top of the Terms of Use. If we make material changes to the Terms of Use, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 2.1) or another manner through the Service (which may include posting an announcement on our App). Struct Club may require you to provide consent to the updated Agreement in a specified manner before further use of the App 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 App and/or the Services. Otherwise, your continued use of the App and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE APP TO VIEW THE THEN-CURRENT TERMS.
1. USE OF THE SERVICES AND STRUCT CLUB PROPERTIES. The App and the Services, and the information and content available on the App and the Services (as these terms are defined herein) (each, a “Struct Club Property” and collectively, the “Struct Club Properties”) are protected by U.S. copyright laws. Subject to the Agreement, Struct Club grants you a limited license to reproduce portions of Struct Club Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Struct Club in a separate license, your right to use any and all Struct Club Properties is subject to the Agreement.
1.1 App License. Subject to your compliance with the Agreement, Struct Club grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App 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 the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2 Updates. You understand that Struct Club Properties are evolving. As a result, Struct Club may require you to accept updates to Struct Club Properties that you have installed on your mobile device. You acknowledge and agree that Struct Club may update Struct Club Properties with or without notifying you. You may need to update third-party software from time to time in order to use Struct Club Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Struct Club Properties or any portion of Struct Club Properties, including the App, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Struct Club Properties (including images, text, page layout or form) of Struct Club; (c) you shall not use any metatags or other “hidden text” using Struct Club’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Struct Club Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the App (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the App for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Struct Club Properties in order to build a similar or competitive App or service; (g) except as expressly stated herein, no part of Struct Club Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Struct Club Properties. Any future release, update or other addition to Struct Club Properties shall be subject to the Agreement. Struct Club, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Struct Club Property terminates the licenses granted by Struct Club pursuant to the Agreement.
1.4 Third-Party Materials. As a part of Struct Club Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Struct Club to monitor such materials and that you access these materials at your own risk.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of Struct Club Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the App or is accessing an Enterprise Subscription under an enterprise account (each, an “Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the App (each such account, a “SNS Account “).
2.2 Access Through a SNS. If you access the Struct Club Properties through a SNS as part of the functionality of the App and/or the Services, you may link your Account with SNS Accounts, by allowing Struct Club to access your SNS Account, as is permitted under the applicable terms and conditions that govern your use of each SNS Account. You represent that you are entitled to disclose your SNS Account login information to Struct Club and/or grant Struct Club access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating Struct Club to pay any fees or making Struct Club subject to any usage limitations imposed by such third-party service providers. By granting Struct Club access to any SNS Accounts, you understand that Struct Club may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Struct Club Properties (collectively, “Content”) that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through Struct Club Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on Struct Club Properties. Please note that if a SNS Account or associated service becomes unavailable or Struct Club’s access to such SNS Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Struct Club Properties. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND STRUCT CLUB DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. Struct Club makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Struct Club is not responsible for any SNS Content.
2.3 Third-Party Music Services. The App may be dependent on and/or interoperate with third-party owned and/or operated platforms and services, e.g., Apple (iTunes, etc.), Spotify, etc. (each, a “Third-Party Platform”) and may require that you to: (a) be a registered member of such Third-Party Platforms; (b) subscribe to a premium plan to such Third-Party Platform, or any other plan indicated by Struct Club; and (c) provide certain account credentials and other information in order to access the App. By linking or syncing your Account with your account on a Third-Party Platform (“Third-Party Account”), you grant Struct Club a right to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Platform. You represent that you are entitled to disclose your Third-Party Account login information to Struct Club and/or grant Struct Club access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Platform (e.g., Spotify’s Terms of Use, iTunes Store Terms of Use, etc.) and without obligating Struct Club to pay any fees or making Struct Club subject to any usage limitations imposed by such Third Party Platforms. By granting Struct Club access to any Third-Party Accounts, you understand that Struct Club may access, make available and store (if applicable) any Content accessible through Struct Club Properties that you have provided to and stored in your Third-Party Account so that it is available on and through the Services via your Account. Please note that if a Third-Party Account or associated service becomes unavailable or Struct Club’s access to such Third-Party Account is terminated by the third-party service provider, then related content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PLATFORMS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY PLATFORMS, AND STRUCT CLUB DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY PLATFORMS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Struct Club makes no effort to review any Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Struct Club is not responsible for any Content, whether accessed, submitted or used through a Third Party Platform.
2.4 Registration Data. In registering an account on the App, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) not a convicted sex offender; (n) of legal age to form a binding contract; and (o) not a person barred from using Struct Club 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 agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Struct Club Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Struct Club immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Struct Club has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Struct Club has the right to suspend or terminate your Account and refuse any and all current or future use of Struct Club Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Struct Club reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Struct Club Properties if you have been previously removed by Struct Club, or if you have been previously banned from any of Struct Club Properties.
2.5 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Struct Club. Struct Club reserves the right to terminate your Account if it has been inactive for thirty (30) days.
2.6 Enterprise Accounts. If you are an entity that purchases or has purchased a subscription for more than one Registered User (each such entity is an “Enterprise Customer” and any such multi-user subscription is an “Enterprise Subscription”), you may have the ability to allow one or more of your employees or contractors to become a Registered User and access Struct Club Properties on your behalf. If you purchase an Enterprise Subscription, the terms of your Enterprise Subscription will specify how many Registered Users are allowed to access the Struct Club Properties on your behalf. As part of the Enterprise Subscription, you will be responsible for designating an administrator, and the administrator will have the responsibility to grant access to other users within your organization. You are responsible for all Registered Users who use an Enterprise Subscription on your behalf and will ensure that all Registered Users comply with the terms of this Agreement.
2.7 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Struct Club Properties, including but not limited to, a mobile device that is suitable to connect with and use Struct Club Properties and all required subscriptions to a Third-Party Platform. You are solely responsible for any fees, including subscription fees for any Third-Party Platforms, Internet connection or mobile fees, that you incur when accessing Struct Club Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Struct Club will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing support@structclub.com.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including Struct Club Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Struct Club, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Struct Club Properties (“Your Content”), including, in the case of Enterprise Subscriptions, Content that is made available through your Registered Users, and that you and other Registered Users of Struct Club Properties, and not Struct Club, are similarly responsible for all Content that you and they Make Available through Struct Club Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Struct Club has no obligation to pre-screen Content (including, but not limited to, User Content), although Struct Club reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Struct Club pre-screens, refuses or removes any Content, you acknowledge that Struct Club will do so for Struct Club’s benefit, not yours. Without limiting the foregoing, Struct Club shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Struct Club in writing elsewhere, Struct Club has no obligation to store any of Your Content that you Make Available on Struct Club Properties. Struct Club has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Struct Club Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Struct Club retains the right to create reasonable limits on Struct Club’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the App and as otherwise determined by Struct Club in its sole discretion.
4. OWNERSHIP.
4.1 Struct Club Properties. Except with respect to Your Content and User Content, you agree that Struct Club and its suppliers own all rights, title and interest in Struct Club Properties (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, moral rights, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Struct Club Properties.
4.2 Trademarks. Struct Club and all related graphics, logos, service marks and trade names used on or in connection with any Struct Club Properties or in connection with the Services are the trademarks of Struct Club and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Struct Club Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Struct Club Properties.
4.4 Your Content. Struct Club does not claim ownership of Your Content. However, when you post or publish Your Content on or in Struct Club Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Struct Club a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, host, display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, providing, developing and improving Struct Club Properties to you and to our other Registered Users; as well as researching and developing new Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Struct Club, are responsible for all of Your Content that you Make Available on or in Struct Club Properties.
4.6 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Struct Club in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Struct Club through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Struct Club 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 Struct Club 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 and maintenance of Struct Club Properties and/or Struct Club’s business.
5. USER CONDUCT.
5.1 Cheating and Hacking. You agree that you will not, under any circumstances:
(a) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Struct Club Properties;
(b) Interfere with or damage Struct Club Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Modify or cause to be modified any files that are a part of Struct Club Properties;
(d) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support Struct Club Properties; or (ii) the enjoyment of Struct Club Properties by any other person;
(e) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Struct Club Properties, or other attempts to disrupt Struct Club Properties or any other person’s use or enjoyment of Struct Club Properties;
(f) Attempt to gain unauthorized access to Struct Club Properties, accounts registered to others, or to the computers, servers or networks connected to Struct Club Properties by any means other than the user interface provided by Struct Club, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Struct Club Properties;
(g) Access, tamper with or use non-public areas of Struct Club Properties, Struct Club’s computer systems, or the technical delivery systems of Struct Club’s providers;
(h) Attempt to probe, scan, or test the vulnerability of any Struct Club system or network, or breach any security or authentication measures;
(i) Disrupt or interfere with the security of, or otherwise cause harm to, Struct Club Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Struct Club Properties or any affiliated or linked sites; or
(j) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Struct Club or any of Struct Club’s providers or any other third party (including another user) to protect Struct Club Properties.
5.2 Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
(a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Struct Club Properties (including your Account), or access to or use of Struct Club Properties;
(b) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Struct Club Property;
(c) Use Struct Club Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;
(d) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Struct Club Properties; or
(e) Market any goods or services for any business purposes on or in connection with any Struct Club Properties.
5.3 General. In connection with your use of Struct Club Properties, you shall not:
(a) Make Available any Content that, in Struct Club’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, pornographic, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Struct Club personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
(h) Stalk or otherwise harass, bully or intimidate any other user of our Struct Club Properties; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
6. INVESTIGATIONS. Struct Club may, but is not obligated to, monitor or review Struct Club Properties and Content at any time. Without limiting the foregoing, Struct Club shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Struct Club does not generally monitor user activity occurring in connection with Struct Club Properties or Content, if Struct Club becomes aware of any possible violations by you of any provision of the Agreement, Struct Club reserves the right to investigate such violations, and Struct Club may, at its sole discretion, immediately terminate your license to use Struct Club Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Struct Club reserves the right, but has no obligation, to intercede in such disputes. You agree that Struct Club will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Struct Club Properties may contain User Content provided by other Registered Users. Struct Club is not responsible for and does not control User Content. Struct Club has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
8. THIRD-PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads. Struct Club Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Struct Club Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Struct Club. Struct Club is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Struct Club provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and 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.
8.2 App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store (the “App Store”). You acknowledge that the Agreement is between you and Struct Club and not with the App Store. Struct Club, not the App Store, is solely responsible for Struct Club Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, 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 Struct Club Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Struct Club Property, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
8.3 Advertising Revenue. Struct Club reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Struct Club has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Struct Club as a result of such advertising).
9. PAYMENT TERMS.
9.1 General. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Struct Club or our third party payment processor with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), as a condition to signing up for a subscription to certain paid features of the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Struct Club or our third party payment processor with your credit card number and associated payment information, you agree that Struct Club is authorized to immediately invoice your Account for all fees and charges due and payable to Struct Club hereunder and that no additional notice or consent is required. You agree to immediately notify Struct Club or our third party payment processor, as applicable, of any change in your billing address or the credit card used for payment hereunder. Struct Club may also update your credit card details or other Payment Provider information using information provided by our payment service providers. Following any such update, you authorize us to continue to charge the applicable method of payment. Struct Club reserves the right at any time to change its prices and billing methods on a going forward basis subject to any obligations to provide notice of such changes under applicable law.
9.2 Subscription Fees. You will be responsible for payment of the applicable subscription fee for the subscription Services. Unless otherwise set forth in an order form entered into directly between you and Struct Club, your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial monthly or annual subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at Struct Club’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Struct Club that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Struct Club notice). If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, you can manage your subscription by opening the app, selecting the Settings (⚙️) button, and selecting “Manage Subscription.” Please note that if you purchased a subscription through a third party app store, you may be required to cancel your subscription through such third party app store. 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 subscription fee paid for the then-current subscription period. By subscribing, you authorize Struct Club or its third party payment processor to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Struct Club or its third party payment processor does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Struct Club may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider 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).
9.3 Taxes. The payments required under Section 9.2 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Struct Club determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Struct Club shall collect such Sales Tax in addition to the payments required under Section 9.2 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Struct Club, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Struct Club for any liability or expense Struct Club may incur in connection with such Sales Taxes. Upon Struct Club’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean 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.
9.4 Withholding Taxes. You agree to make all payments of fees to Struct Club free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Struct Club will be your sole responsibility, and you will provide Struct Club with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
10. Indemnification. You agree to indemnify and hold Struct Club, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Struct Club Party” and collectively, the “Struct Club 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 Content; (b) your (or your Registered Users’) use of, or inability to use, any Struct Club Property; (c) your (or you Registered Users’) violation of the Agreement; (d) your (or your Registered Users’) violation of any rights of another party, including any Registered Users; or (e) your (or your Registered Users’) violation of any applicable laws, rules or regulations. Struct Club 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 Struct Club in asserting any available defenses. This provision does not require you to indemnify any of the Struct Club 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 App or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Struct Club Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF STRUCT CLUB PROPERTIES IS AT YOUR SOLE RISK, AND STRUCT CLUB PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. STRUCT CLUB 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT THE SERVICES ARE PRE-PRODUCTION AND HAVE NOT BEEN COMPLETELY TESTED IN ALL SITUATIONS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT STRUCT CLUB PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD STRUCT CLUB PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. STRUCT CLUB MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. STRUCT CLUB MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH STRUCT CLUB PROPERTIES.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF STRUCT CLUB PROPERTIES. YOU UNDERSTAND THAT STRUCT CLUB DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF STRUCT CLUB PROPERTIES. STRUCT CLUB MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF STRUCT CLUB PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF STRUCT CLUB PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF STRUCT CLUB PROPERTIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL STRUCT CLUB 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 STRUCT CLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF STRUCT CLUB PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE STRUCT CLUB 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 STRUCT CLUB PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON STRUCT CLUB PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO STRUCT CLUB PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A STRUCT CLUB PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A STRUCT CLUB PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A STRUCT CLUB PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL STRUCT CLUB PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) 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 STRUCT CLUB PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A STRUCT CLUB PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A STRUCT CLUB PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content. EXCEPT FOR STRUCT CLUB’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE STRUCT CLUB’S PRIVACY POLICY, STRUCT CLUB ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN STRUCT CLUB AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Struct Club’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Struct Club by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Struct Club Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Struct Club Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written 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 (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Struct Club’s Copyright Agent for notice of claims of copyright infringement is as follows: 313 E. Broadway #1604, Glendale, CA 91209 Attn: Amira Polack[Cooley4] .
14. REMEDIES.
14.1 Violations. If Struct Club becomes aware of any possible violations by you of the Agreement, Struct Club reserves the right to investigate such violations. If, as a result of the investigation, Struct Club believes that criminal activity has occurred, Struct Club reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Struct Club is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Struct Club Properties, including Your Content, in Struct Club’s possession in connection with your use of Struct Club Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Struct Club, its Registered Users or the public, and all enforcement or other government officials, as Struct Club in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Struct Club determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Struct Club Properties, Struct Club reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Struct Club) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Struct Club Properties;
(c) Discontinue your registration(s) with any of Struct Club Properties, including any Services or any Struct Club community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Struct Club deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Struct Club Properties, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Struct Club Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Struct Club Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by Struct Club. If you have materially breached any provision of the Agreement, or if Struct Club is required to do so by law (e.g., where the provision of the App, the Software or the Services is, or becomes, unlawful), Struct Club has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Struct Club’s sole discretion and that Struct Club shall not be liable to you or any third party for any termination of your Account.
15.4 Termination of Services by You. If you want to terminate the Services provided by Struct Club, you may do so by closing your Account for all of the Services that you use.
15.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Struct Club will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with or ability to access Struct Club Properties, or any other Struct Club community is discontinued by Struct Club due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Struct Club Properties or any Struct Club community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Struct Club Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Struct Club reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Struct Club and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the App, to any products sold or distributed through the App, or to any aspect of your relationship with Struct Club, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Struct Club 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here][Cooley5] . The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims 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 claims 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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Struct Club will pay them for you. In addition, Struct Club will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Struct Club. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND STRUCT CLUB 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 Struct Club are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other claims shall be arbitrated.
16.6 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: hello@structclub.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Struct Club username (if any), the email address you used to set up your Struct Club 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.
16.7 Severability. Except as provided in subsection 16.5, 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.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Struct Club.
16.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Struct Club makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Struct Club at the following address: 313 E. Broadway #1604, Glendale, CA 91209 Attn: Amira Polack.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Struct Club may take place via electronic means, whether you visit Struct Club Properties or send Struct Club e-mails, or whether Struct Club posts notices on Struct Club Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Struct Club in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Struct Club 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.
17.2 Release. You hereby release Struct Club Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Struct Club Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Struct Club Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released part.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Struct Club Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the App or any Services provided hereunder.
17.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Struct Club’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. Struct Club 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.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Struct Club Properties, please contact us at: 313 E. Broadway #1604, Glendale, CA 91209. 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.
17.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Struct Club agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, CA.
17.7 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 AGREEMENT.
17.8 Notice. Where Struct Club requires that you provide an e-mail address, you are responsible for providing Struct Club with your most current e-mail address. In the event that the last e-mail address you provided to Struct Club is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Struct Club’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Struct Club at the following address: 313 E. Broadway #1604, Glendale, CA 91209 Attn: Amira Polack. Such notice shall be deemed given when received by Struct Club by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 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.
17.11 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) the Agreement is concluded between you and Struct Club only, and not Apple, and (ii) Struct Club, 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 Struct Club 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 Struct Club.
(d) You and Struct Club acknowledge that, as between Struct Club 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 Struct Club 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 Struct Club and Apple, Struct Club, 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 the Agreement.
(f) You and Struct Club acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the 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 the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17.12 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.
17.13 Entire Agreement. The 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.