Last Updated: May 4, 2023

 

OVERVIEW OF OUR TERMS OF USE

 

These Terms of Use (“Terms” or “Terms of Use”), provided by Bowery Digital LLC including its subsidiaries and affiliates (collectively,  “We,” “Our,” “Us” or “Bend”), set forth the legally binding terms and conditions the following “Services” that govern Your access and/or use of: (a) Our mobile app, the “Bend App” (which you can download to use from the Apple App Store or Google Play Store), (b) Our Bend Website, currently located at www.joinbend.com, and (c) any information or materials We provide You through the Bend App, the Bend Website or any of Our other services.  

 

By accessing or using any of the Services, You are accepting and have agreed to these Terms (which incorporates by reference Our Privacy Policy), on behalf of Yourself or Your minor child (if applicable), and You represent and warrant that You have the right, authority, and capacity to enter into these Terms on behalf of Yourself or Your minor child (if applicable).

 

All capitalized terms not defined in these Terms of Use are defined in Our Privacy Policy.  

 

IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.

 

ELIGIBILITY

 

·       You must be 13 years of age or older to use Our Services and provide certain information to use Our Services.

·       You must be 18 years of age or older to purchase Our paid Services or any other products or services offered by Us through Our Services.

·       The above age limits are referred to individually and collectively as “Minimum Age.”  

·       If other applicable laws require You (or Your child) to be older than the above-mentioned Minimum Age in order to use, access or purchase the Services or any other products and services offered by Us or any other third party, then the Minimum Age will be the older age under such applicable laws.

·       In order to use Our Services, You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over Our Terms, Bend and Yourself.

 

THESE TERMS MAY CHANGE

 

These Terms are subject to occasional revision, and if we make any substantive changes, We may notify You by sending You an email to the last email address You provided to Us or by prominently posting a notice of the changes within Our Services and/or within Our Terms.  

 

Your continued use of Our Services following notice of any changes to Our Terms or Privacy Policy, or any other policies or guidelines, constitutes Your acceptance of all such changes.

 

READ OUR PRIVACY POLICY

 

Any information that We collect through Your use of the Services is subject to Our Privacy Policy, which is part of these Terms of Use.

 

HEALTH AND SAFETY WARNING

You should consult a physician or health care professional before beginning any fitness or exercise program, including Your use of the Bend App and any other of Our Services.  It is Your sole responsibility to evaluate Your own health and wellness before undertaking to use any information or program available through Our Services. When used improperly or undertaken by persons with certain medical conditions, changes in exercise, diet, or other physical activity may result in injury, illness, or death without proper medical evaluations. By using Our Services You agree that: (a) all content available through Our Services is for informational purposes only, and does not constitute medical, professional, therapeutic, or other counseling services; (b) You have consulted a health care professional prior to undertaking any program or information through Our Services; and (c) You utilize the Services at Your own, sole risk. 

BASIC TERMS 

1.              Accounts 

1.1            Account Creation.  In order to use certain features of the Services, You may register for an account (“Account”) and provide certain information about Yourself.  You represent and warrant that: (a) all required registration information You submit is truthful and accurate; (b) You will maintain the accuracy of such information. You may delete Your Account at any time, for any reason, by following the instructions on the Services.  We may suspend or terminate Your Account as permitted in these Terms. 

1.2            Account Responsibilities.  You are responsible for maintaining the confidentiality of Your Account login information and are fully responsible for all activities that occur under Your Account.  You agree to immediately notify Us of any unauthorized use, or suspected unauthorized use of Your Account or any other breach of security.  You acknowledge and agree that We will not be liable for any loss or damage arising from Your failure to comply with these requirements.

2.              The Services 

2.1            License.  Subject to these Terms, We grant You a non-transferable, non-exclusive, revocable, limited license to use and access the Services solely for Your own personal, non-commercial use.

2.2            Certain Restrictions Regarding Your Use of the Services.  The rights granted to You in these Terms are subject to the following restrictions.

(a)   You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed within the Services.

(b)   You shall not modify, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services.

(c)    You shall not access the Services in order to build a similar or competitive app, platform, website, product, or service.

(d)   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 the Services.

(e)    You shall not post or send anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable, all as determined by Us in Our sole discretion.

(f)    You shall not infringe on anyone’s intellectual property rights (including privacy and publicity rights), defame anyone, impersonate anyone, or otherwise violate the rights of a third party.

(g)   You shall not hack or modify the Services to set up robots to automate or otherwise manipulate content within the Services.

(h)   You shall not hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of Our Services or any property, product or service of any of Our suppliers, vendors or third-party contractors or service providers (“Suppliers”), Users or any other third parties.

(i)    You shall not share videos or any other content, information or programs accessed through the Service with any third parties.

(j)    Except as expressly stated in these Terms, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.

(k)   Any information, materials or programs purchased through the Services are for Your sole use and may not be copied, shared, or otherwise distributed to any third party.

(l)    You shall not violate the laws of the United States, its states or any other countries or entities having jurisdiction over these Terms, Bend or Yourself, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.

(m)  You shall not do anything else that Bend believes (in its sole discretion) could harm or negatively affect Us or any third party.  

Bend and its Suppliers reserve all rights not granted in these Terms of Use. Any unauthorized use of the Services terminates the licenses granted by Bend pursuant to these Terms of Use.

2.3             Changes to the Services.  We reserve the right, at any time, to modify, update, suspend, or discontinue the Services (in whole or in part) with or without notice to You.  You agree that We will not be liable to You or to any third party for any modification, updates, suspension, or discontinuation of the Services or any part thereof.  Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.

2.4            Bend Intellectual Property.  You acknowledge and agree that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, contained within or provided through the Services and its content (in any form or medium) are owned by Us or Our suppliers or third party contractors (collectively, “Bend IP”).  Neither these Terms (nor Your access to the Services) transfers to You or any third party any rights, title or interest in or to the Bend IP, including any related intellectual property rights, except for the limited access rights expressly set forth above.  Bend and Our Suppliers reserve all rights not expressly granted in these Terms.  There are no implied licenses granted under these Terms.  You are not permitted to use any of the Bend IP in any way without the prior written consent of Us or Our applicable supplier.

3.              Indemnification.   

3.1            You agree to indemnify and hold Us (and Our officers, employees, independent contractors, agents, representatives, affiliates, successors and assigns) harmless from any claims, disputes, demands, liabilities, damages, losses and costs and expenses (including without limitation reasonable attorney’s fees and costs) or demand made by any third party arising out of or in any way connected with (a) Your use of the Services, (b) Your violation of these Terms, (c) the display, posting or any other use of Your Content through or in connection with the Services or Us, or (d) Your violation of applicable laws or regulations.

3.2            We reserve the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Us, and You agree to cooperate with Our defense of these claims.  You agree not to settle any matter without Our prior written consent.  We will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.  Our failure to promptly notify You as to the existence of an indemnifiable claim will not relieve Your applicable indemnification obligations, except to the extent that such failure or delay is prejudicial.

4.              Third Party Services

4.1            In order to optimize Your experience with the Services, You may, at Your sole election, decide to link Your social media accounts, wearable devices, non-wearable devices, calendars, applications, platforms, or programs, now in existence or hereafter developed, (collectively and including related devices, “Third-Party Services”) that You utilize now or in the future. We may provide such links to Your Third-Party Services only as a convenience to You, and do not review, approve, monitor, endorse, warrant or make any representations regarding such services or devices. All Such Third-Party Services are neither Our responsibility nor under Our control.  

4.2            By linking such Third-Party Services with Your Bend account, You represent and warrant that: (a) such Third-Party Services are Your own; (b) You are authorized to access and link such Third-Party Services Account; and (c) You expressly authorize Us to utilize, implement, and, if applicable, share any information or data received from Your Third-Party Services.  You may un-link Your Third-Party Services at any time but understand that You may experience, as a result, a more limited interaction with Our Services. 

4.3            Please remember You shall remain bound by the terms of use and privacy policy of the owners of Your Third-Party Services while they are linked to the Services.  You acknowledge that these Terms do not apply to any Third-Party Services, and that You assume all responsibility of and any risk arising from Your use of such Third-Party Services.

5.              App Stores

5.1            You acknowledge and agree that the availability of the Services is dependent on the third-party platform from which You access the Services, e.g., the Apple App Store or Google Play Store (individually and collectively, “App Store(s)”). 

5.2            You acknowledge that these Terms of Use are between you and Bend and not with the App Stores. Bend, not the App Stores, is solely responsible for the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any related claims. In order to use the Services, You must have Internet connectivity and You agree to pay all fees associated with such connectivity. You also agree to pay all fees (if any) charged by the App Store in connection with using the Bend App. 

5.3            You agree to comply with, and Your license to use the App is conditioned upon Your compliance with, all applicable third-party terms of agreement (e.g., the App Stores’ terms and policies) when using the App and the Services. You acknowledge that the App Stores (and its subsidiaries) are third-party beneficiaries of these Terms of Use and will have the right to enforce it to the extent the rights of the operator of any App Stores are affected by such Terms.

5.4            You also agree that the Bend App is accessed through or downloaded from an App Store; therefore, Your use of the Bend App through the applicable App Store requires You to comply with such App Store’s terms of service, and this means You agree to the following.

(a)   You shall pay all fees (if any) charged by the App Store in connection with the Bend App. 

(b)   You shall comply with, and Your license to use the App is conditioned upon Your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App and the Services. 

(c)    You acknowledge that the App Stores (and its subsidiaries) are third-party beneficiaries of these Terms of Use and will have the right to enforce it to the extent the rights of the operator of any App Stores are affected by such Terms.

(d)   Bend App Downloaded through the Apple App Store:

(i)    In the event of any failure of the Bend App to conform to any applicable warranty, You may notify the Apple App Store through which You downloaded the Bend App, and Apple will refund the purchase price in accordance with its applicable terms of service and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Bend App.

(ii)   You and Bend acknowledge that, as between Bend and Apple, Apple is not responsible for addressing any claims You have or any claims of any third party relating to the Bend App or Your possession and use of the Bend App, including: (i) product liability claims; (ii) any claim that the Bend App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(iii)  You and Bend acknowledge that, in the event of any third-party claim that the Bend App or Your possession and use of that Bend App infringes that third party’s intellectual property rights, as between Bend and Apple, Bend, 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 Bend Terms of Use.

(e)    Bend App Downloaded through the Google Play Store:

(i)    Google has no obligation or liability to You with respect to the Bend App or these Terms of Use.

6.              Fees and Payments

6.1            Payment Processors.  We utilize the services of third-party payment processors (“Processors”) to handle Your purchases of certain Services, and in such cases, We do not store Your credit card or other payment method information.  Such Processors may require You to store credit card or other sensitive, personal information. We make no warranties or representation with respect to any Processor and their ability to safeguard Your information.  It is important that You review the Processor’s terms of use and privacy policy prior to using their services.

6.2            Fees for Bend Services.  You agree that Your purchase of certain Services will include a charge for the processing of such purchase, and such processing fees are non-refundable if You seek a refund for a Service You purchased. 

7.              Disclaimers 

BEND IS NOT A MEDICAL SERVICE PROVIDER AND DOES NOT OFFER MEDICAL ADVICE.  THE SERVICES ARE NOT INTENDED FOR MEDICAL DIAGNOSIS OR ADVICE OR TREATMENT.  WE DO NOT ENDORSE ANY SPECIFIC PRODUCTS, PROGRAMS, PROCEDURES, OPINIONS OR OTHER INFORMATION THAT MAY BE MENTIONED OR DESCRIBED THROUGH OUR SERVICES.  IF YOU RELY ON ANY CONTENT OBTAINED BY YOU THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK.  BEND ASSUMES NO RESPONSIBILITY FOR ANY ACT, OMISSION, ACTIVITY, PRODUCT OR SERVICE THROUGH INDIVIDUALS OR PROGRAMS PROVIDED THROUGH THE SERVICES.

 

THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.  IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  

 

8.              Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BEND  BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.  

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU HAVE PAID TO BEND FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100) (WHICHEVER GREATER), PROVIDED YOU DO NOT HAVE ANY THEN-EXISTING PAYMENT OBLIGATIONS TO BEND.  THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.  

YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS SECTION 8 AND ANY OTHER RELEVANT TERMS IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH IN THESE TERMS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BEND AND YOU.   

9.              Release and Waivers

9.1            Release.  You hereby release and forever discharge Us (and Our officers, employees, independent contractors, agents, representatives, affiliates, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Services users or any Third-Party Links and Advertisements).

9.2            Residents of California.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”  YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

9.3            Jurisdictions Prohibiting Bend’s Limitation of Liability.  Notwithstanding any provision of these Terms (including without limitation those in Sections 7, 8 and 9), if Your jurisdiction has laws or regulations specific to waiver or liability that conflict with this Section then Our liability is limited to the smallest extent possible by law.  Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by Our negligence or that of any of Our officers, employees or independent contractors; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.

10.            Term and Termination.   

Subject to this Section, these Terms will remain in full force and effect while You use the Services.  We may, without any liability to You whatsoever, suspend or terminate Your rights to use the Services (including Your Account) at any time for any reason at Our sole discretion, including for any use of the Services in violation of these Terms.  This means we have the right to revoke Our consent to Your use of the Services, the Bend IP and/or any other permissions we previously granted to You.  Upon termination of Your rights under these Terms, Your Account and right to access and use the Services will terminate immediately.  Even after Your rights under these Terms are terminated, the following provisions of these Terms will remain in effect (e.g., survive the termination of the Terms): Sections 2.2 through 13.

11.            Dispute Resolution and Arbitration

Please read this Section 11 on Dispute Resolution and Arbitration carefully.  It is part of Your agreement with Bend under these Terms and affects Your rights.  The following contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

11.1         Governing Law.  The Terms of Use and the resolution of any “Dispute” shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

11.2         Time Limits.  Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

11.3         Informal Dispute Resolution Required.  We want You to reach out to Us if You have any concerns or complaints rather than feeling like You need to initiate a formal legal case. Before filing a claim against Bend, You agree to try to resolve the Dispute informally by sending to support@joinbend.com a written “Notice of Dispute” (“Notice”) describing the nature and basis of the claim or dispute, your phone number and formal mailing address, and the requested relief.  After We receive the Notice, We will try to resolve the Dispute informally by contacting you through email or telephone.  If a Dispute is not resolved within ninety (90) days after the date We contact you informally, You or Bend may bring a formal proceeding as permitted in this Section 11.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

11.4         Arbitration Terms for U.S. and International Arbitration.  

(a)   All “Arbitration Cases,” which means all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Bend that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis in accordance with Section 11.4(a).  

(i)    U.S. Arbitration Rules.  If an Arbitration Case involves a User based or residing in the U.S. or use of the subject Bend product or service occurred in the U.S., then arbitration shall be initiated through the “American Arbitration Association” (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section 11.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.

(ii)   International Arbitration Rules.  If an Arbitration Case involves a User based or residing outside of the U.S. or the use of the subject Bend product or service occurred outside of the U.S., then arbitration shall be initiated through the “International Centre for Dispute Resolution” (“ICDR”), an established ADR Provider that offers arbitration as set forth in this Section 11.  If ICDR is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.

(b)   Unless otherwise agreed to in writing by both parties, all arbitration proceedings shall be held in English.

(c)    The arbitration requirements for all Arbitration Cases shall apply to You and Bend, and to any subsidiaries, affiliates, agents, employees, independent contractors, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

(d)   The arbitration shall be conducted by a single, neutral arbitrator, unless the claim exceeds $100,000.00, in which case the arbitration shall be conducted by a panel of three arbitrators.  All such arbitrators shall be or was an attorney and has professional experience in digital technology, fitness and nutrition and social media-related and fitness and nutrition related services and platforms.

(e)    Within twenty (20) days after the commencement of arbitration, each party shall select the applicable number of persons to serve as arbitrator.  If the parties cannot mutually agree in good faith (and in writing) to the selection of the arbitrator(s) within this 20-day period, the AAA or ICDR (whichever applicable) shall, at the written request of any party, complete the appointments that have not been made.

(f)    The Expedited Procedures under the AAA or ICDR (whichever applicable) shall apply in any Arbitration Case in which no disclosed claim or counterclaim exceeds $100,000.00, not including interest or reasonable attorney’s fees and arbitration costs.

(g)   Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved, under the AAA or ICDR (whichever applicable), through binding non-appearance-based arbitration, at the option of the party seeking relief.  Accordingly, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed in writing by the parties.

(h)   For Arbitration Cases with the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the arbitration rules under the AAA or ICDR (whichever applicable).  Any hearing will be held in a location within 100 miles of Our principal place of business, unless the parties agree otherwise in writing.  If You reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings and whether virtual appearance or attendance by either party is permitted.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction located within 100 miles of Our principal place of business.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider, unless the arbitrator determines Your claim is frivolous, then We will seek for You to cover Our attorney’s fees and all fees and costs of the ADR Provider.

(i)    The award for an Arbitration Case shall be made within six (6) months of the filing of the notice of intention to arbitrate (demand), and the arbitrator(s) shall agree to comply with this schedule before accepting appointment.  This time limit, however, may be extended by the arbitrator(s) for good cause shown, or by mutual written agreement of the parties.

(j)    Notwithstanding any language to the contrary in this Terms, the parties agree that: (1) the award (as described in Section 11.4(i)) may be appealed pursuant to the optional appellate arbitration rules under the AAA or ICDR, whichever applicable ("Appellate Rules"); (2) such award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and (3) such award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired.  Appeals must be initiated within thirty (30) days of receipt of an award, as defined by the Appellate Rules, by filing a “Notice of Appeal” with any AAA or ICDR office (whichever applicable).  Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.

(k)   If arbitration is initiated in compliance with this Section 11.4, the arbitrator(s) will decide the rights and liabilities, if any, of You and Bend, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator(s) shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator(s) 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 AAA or ICDR rules (whichever applicable), and the Terms.  The arbitrator(s) 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(s) 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(s) is binding upon You and Bend as specified in this Section 11.4.

(l)    Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.

(m)  Unless otherwise specified in these Terms, Bend is not committed nor obligated to use an alternative dispute resolution entity to resolve disputes with its Users.

11.5         Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Section 11 and the Terms.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between You and Bend in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BEND WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

11.6         Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER (WHETHER AN INDIVIDUAL OR AN ORGANIZATION) CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER (WHETHER AN INDIVIDUAL OR ORGANIZATION).  

11.7         Equitable Relief.  Notwithstanding anything to the contrary in this Section 11, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 11 or the Terms.

11.8         Claims Not Subject to Arbitration.  Notwithstanding anything to the contrary in this Section 11, claims (including those related to injunctive relief) of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets (or any other intellectual property rights) or Your material breach of the Terms of Use pertaining to Your access to or use of the Services shall not be subject to these arbitration terms, so long as the claimant has complied with Section 11.2 (informal dispute requirement).  Notwithstanding anything to the contrary in this Section 11, either party may submit to a court of law to enforce an arbitration award, and Bend may submit to a court of law to enforce these Terms or seek injunctive or equitable relief.

11.9         Courts/Jurisdiction.  In any circumstances where the foregoing arbitration terms permit the parties to litigate in court, the parties irrevocably agree that jurisdiction and venue shall be that of the federal and state courts located within New York City and New York County of the State of New York, for such purpose, and You agree to accept service by delivery through first class mail.

11.10       If You bring a dispute in a manner other than in accordance with this Section 11, You agree that We may move to have it dismissed, and that You will be responsible for Our reasonable attorneys’ fees, court costs, and disbursements in doing so.

11.11       You agree that the unsuccessful party in any dispute arising from or relating to these Terms of Use will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.

12.            Electronic Communications.  The communications between You and Bend use electronic means, whether You use the Services or send Us emails, or whether We post notices on the Services or communicate with You via email. For contractual purposes, You (a) consent to receive communications from Us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Your non-waivable rights.

13.            General Terms.  These Terms constitute the entire and exclusive agreement between You and Bend regarding the Services and the use and access thereof. These Terms supersede and replace any and all prior oral or written understandings or agreements between You and Bend regarding all of Our Services.  Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.  Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

13.1         The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.”

13.2         If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired (remaining in full force and effect), and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  These Terms, and Your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by You without Our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  We may freely assign these Terms.  The terms and conditions set forth in these Terms shall be binding upon Our successors or assignees.

13.3         Force Majeure.  You agree that We are not responsible to You for anything that We may otherwise be responsible for, if it is the result of events beyond Our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics, epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond Our control (collectively, “Force Majeure”).  We reserve the right (in Our sole discretion) to terminate any or all Services to You or any of Our Users due to any Force Majeure event.

14.            Copyright and Other Intellectual Property Infringement Claims. We take the protection of Intellectual Property seriously.  We respect the rights of others’ content and Intellectual Property, and We expect Our Users to do the same. You agree not to copy, distribute, display or otherwise reproduce any of the Services or any information available through the Services without obtaining Our prior written permission in each such instance.  We reserve the right (in Our sole discretion) to terminate and/or disable the accounts of Yours and any Users for materially or repeatedly infringing the intellectual property rights of Ours, Our Suppliers and any other third parties in accordance with all applicable laws.  Claims of copyright or other intellectual property infringement can be sent to Our Copyright Agent at support@joinbend.com.  

Any claims of alleged copyright or other intellectual property infringement must include:

 

1.              Identification of the intellectual property works which are the subject of the claimed infringement.

2.              Identification of the claimed infringing activity, including the location within the applicable Services of the infringing copy.

3.              A statement with the signature of the person making the claim, which states that he/she is the owner, or authorized to act on behalf of the owner, of the infringed intellectual property, along with current contact information, which should include a mailing address, telephone number, and email address.

4.              A statement of a good faith belief that the subject use is not authorized by the intellectual property owner.

5.              A statement as follows: “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the intellectual property that is allegedly infringed.”

If a statement does not include all required elements, it will not be treated as actual notice under the U.S. Digital Millennium Copyright Act (17 U.S.C. §512), or other applicable U.S. intellectual property law.

Although U.S. law does not provide for a similar procedure for trademark infringement, We recommend that You send Us similar information as described above in regards to any allegation of trademark infringement, and We will address it as soon as practicable.

In the event We receive a claim, which substantially complies with the complaint requirements detailed above, We will remove the alleged infringing material from Our Services, and notify You that the material has been removed. You may provide Us with a counter notice if You believe the claim is in error. If You are the subject of multiple claims, we may, in Our sole discretion, terminate Your account without further notice.

15.            Contact Us.

PLEASE CONTACT US AT support@joinbend.com IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.