Terms & Conditions

This website getfungusclear.com (“Website”) is an Internet property of Vitality Health LLC (“Vitality Health LLC”, “we” or “us”). You agree to the following Website Terms of Use in their entirety, when you: (1) access or use the Website; and/or (2) purchase products or services offered on our Website (“Online Products”). The Privacy Policy (“Privacy Policy”) and any and all other applicable Vitality Health LLC operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, are expressly incorporated herein by reference (collectively, the “Agreement”). Please review the Agreement carefully. If you do not agree to the terms and conditions contained within the Agreement in its entirety, you are not authorized to use the Website in any manner or form whatsoever.

  1. Definitions
    The “Vitality Health LLC Sites” shall mean all areas and services offered or available on the interactive online service operated by Vitality Health LLC and/or its affiliates on the World Wide Web. The Vitality Health LLC sites consist of information, services and content provided by Vitality Health LLC and/or its affiliates and/or third parties. “Account” shall hereby mean any user-associated account created for use on the Website or for purchase or any other transaction relating to any of the products sold on the Website.
  2. General
    Vitality Health LLC shall have the right at any time to change or discontinue any aspect or feature of the Vitality Health including, but not limited to, the content, hours of availability, and equipment needed for access or use. Such changes, modifications, additions or deletions shall be effective immediately without further notice thereof. Amendments to the terms and conditions contained herein may be given by means including but not limited to, posting on the Vitality Health LLC Sites a revised version of this Agreement or notification by electronic mail. Any use of the Vitality Health LLC Sites after such notice shall conclusively be deemed to be acceptance of such changes, modifications, additions or deletions. The user agrees to review the terms and conditions of this Agreement periodically to be aware of such revisions.
  3. Use of the Vitality Health LLC Site.

A. The Vitality Health LLC site contain copyrighted material; trademarks and other proprietary information including text, photos, video, graphics, music and sound, and the entire contents of the Vitality Health LLC Sites are copyrighted as a collective work under the United States copyright laws. Vitality Health LLC is the owner of the copyright in the entire Vitality Health LLC Sites. Vitality Health LLC owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Each third party content provider owns the copyright in content original to it. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Vitality Health LLC Sites or any portion of it. Except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the Vitality Health LLC Sites without the express permission of Vitality Health LLC and, if applicable, the copyright owner. In the event of any permitted copying, redistribution or publication of material from the Vitality Health LLC Sites, no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading or copying copyrighted material.

B. You hereby grant to Vitality Health LLC and its respective affiliates worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any e-mail, video, graphic, data, or information sent by you to Vitality Health LLC (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed.

C. You shall provide Vitality Health LLC with accurate, complete and updated information provided by you at the time of your purchase.

D. The Vitality Health LLC Sites contain links to other Web sites, resources and advertisers. Vitality Health LLC is not responsible for the availability of these external sites nor does it endorse or is it responsible for the contents, advertising, products or other materials made available on or through such external sites. Under no circumstances shall Vitality Health LLC be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods or services available on such external site. You should direct any concerns to such external site’s administrator or web master.

E. You agree not to take any action to interfere with the function or accessibility of the Vitality Health Site or to take any action to restrict the access of others thereto.

F. The foregoing provisions of this Section 3 are for the benefit of Vitality Health LLC, its affiliates, third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly on its own behalf or jointly with others.

G. Vitality Health LLC has carefully designed the Vitality Health LLC Site with the purpose of delivering certain content to users in a particular format and with a particular appearance. No third party shall have the right to utilize the content of the Vitality Health LLC Site in any way that interferes with that purpose. In particular, Vitality Health LLC prohibits any party from displaying the content on the Vitality Health LLC Sites in any format where third party advertising or other materials that Vitality Health LLC did not authorize in writing is viewed or viewable together with Vitality Health LLC’ proprietary content.

4. Disclaimer of Warranty; Limitation of Liability.

A. YOU EXPRESSLY AGREE THAT USE OF THE Vitality Health LLC SITE IS AT YOUR SOLE RISK. NEITHER Vitality Health LLC, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE Vitality Health LLC WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Vitality Health LLC SITE OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCTS PROVIDED THROUGH THE SITES.

B. THE Vitality Health LLC SITES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.

C. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED, DIRECTLY OR INDIRECTLY, BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT Vitality Health LLC IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

D. IN NO EVENT WILL Vitality Health LLC OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE Vitality Health LLC SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE Vitality Health LLC OR OUT OF THE BREACH OF ANY WARRANTY. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 4 SHALL APPLY TO ALL CONTENT ON THE Vitality Health LLC SITE. Vitality Health LLC’S LIABILITY TO USERS, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID TO Vitality Health .

E. Vitality Health LLC NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT ON THE Vitality Health LLC SITE, NOR FOR ANY OFFENSIVE, DEFAMATORY OR OBSCENE POSTING MADE BY. UNDER NO CIRCUMSTANCES WILL Vitality Health LLC BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE Vitality Health LLC SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE Vitality Health LLC SITES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING BUT NOT LIMITED TO FINANCIAL, HEALTH, OR LIFESTYLE INFORMATION, OPINION, ADVICE OR OTHER CONTENT.

F. Vitality Health LLC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED THROUGH THE Vitality Health LLC SITES (WITH THE SOLE EXCEPTION BEING WRITTEN WARRANTIES PROVIDED IN CONNECTION WITH Vitality Health LLC PRODUCTS OR SERVICES) AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN USERS AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. Vitality Health MAKES PRODUCTS OR SERVICES AVAILABLE ON THE Vitality Health LLC SITES WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.

5. Dispute Resolution

A. Governing Law. Use of this Website, any purchases made through this Website, and any controversy, claim, or dispute arising out of or relating in any way to your use of this Website or purchases through this Website and/or your Account, shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules.

B. Class Action Waiver. Both you and we waive the right to bring any controversy, claim, or dispute arising out of or relating in any way to your use of this Website, your membership in or purchases from the Website and/or your Account, or products purchased through this Website as a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought my anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as “the class action waiver.”)

C. Forum Selection/Jurisdiction. Jurisdiction and venue for any dispute shall be in Las Vegas, Nevada. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.

D. Agreement to Pre-Arbitration Notification. These Terms of Service provide for final, binding arbitration of all disputed claims (discussed immediately below). We and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant whether you or us shall send a letter to the other side briefly summarizing the claim and the request for relief. If we are the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to [add address]. If the dispute is not resolved within ninety (90) days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.

E. Agreement to Arbitrate Claims. Except to the limited extent noted below, use of this Website, any purchases made through this Website, and any controversy, claim or dispute arising out of or relating in any way to your use of this Website or purchases through this Website and/or your Account shall be resolved by final and binding arbitration between you and us. The arbitration shall take place in Las Vegas, Nevada in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten (10) days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Las Vegas, Nevada to participate in the arbitration. If you decide to commence arbitration, the provider will require to you to pay a filing fee, for which you will be reimbursed any excess amounts. If the arbitrator ultimately rules in your favor, we will also reimburse you for the base filing fee. This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction. Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding. Both you and we waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else. Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding. If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.

 

F. Appeal Rights. The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.

 

G. Opting out of Dispute Resolution and Class Action Waiver. You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in these Terms of Service by doing the following: within fifteen (15) days of setting up your Account, you must send a letter to 122 1/2 Broadway N Ste 100 #43301 Fargo, North Dakota 58102-5082 US addressed specifically to us that specifies (1) your name, (2) your account number or account member name, (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms of Service. All other Terms shall continue to apply to your Account, including the requirement to participate in pre-dispute mediation. Notwithstanding any provision in these Terms of Service to the contrary, we agree that, if we makes any future change to the dispute resolution procedure and class action waiver provisions (other than a change to our address), you may reject any such change by sending a letter to us within fifteen (15) days of the change to the address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. Your letter must be postmarked by the applicable fifteen (15) day deadline to be effective. You are not required to send the letter by confirmed mail or return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the applicable fifteen (15) day deadline.

  1. Indemnification
    You agree to defend, indemnify and hold harmless Vitality Health LLC, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use by you of the Vitality Health LLC Sites, including claims by other users of your equipment, access or membership.
  2. Termination
    Vitality Health LLC shall have the right to immediately terminate this Agreement with respect to any user which Vitality Health LLC, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of this Agreement. The provisions of Sections 3, 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
  3. Trademarks
    All trademarks appearing on the Vitality Health LLC Sites are the property of their respective owners, including, in some instances, Vitality Health LLC, and/or affiliated companies.
  4. Descriptor
    The order you have placed for this product will appear as: fungusclearsolution.com on your next credit card statement. Please contact our customer support with any questions you may have.
  5. Refund Policy
    Any item purchased on Vitality Health LLC may be returned for any reason within ninety (90) days from the date of purchase. There is no need to send the product back to us, simply contact us via e-mail, or phone, to initiate a refund request.
  6. Shipping Policy
    We offer free shipping to anywhere in the continental United States. All orders placed between the hours of 6 am and 3 pm Monday and Friday will be shipped out in 2-3 business days. Business days are Monday through Friday, excluding all US postal holidays. Handling is also included in your order. As soon as your order is shipped, you will be sent a confirmation email with your tracking numbers necessary to locate and track the status of your order in transit.
  7. Newsletter Subscription:
    By purchasing a product from this website, you understand that you are:
    Subscribing to a free, no obligation email newsletter and will receive emails.
    If you do not wish to receive our newsletter, simply click on the unsubscribe link at the bottom of the newsletter. If you need further assistance, please contact us at support@vitalityhealthnow.com
    This newsletter is offered as a free service. It is 100% free and no purchase is required.
    You agree that you wish to be subscribed to this newsletter, and that you will make no threats, and take no additional action against Vitality Health or fungusclearsolution.com in the event you are unhappy that you subscribed or are not able to remove yourself from this free mailing list.
    If you subscribe and later decide that you don’t wish to be subscribed, you agree that the small inconvenience of receiving this unwanted newsletter will cause you no personal, emotional, or financial harm whatsoever
  8. Spam Policy
    Internet user privacy is of paramount importance to fungusclearsolution.com and our customers. We support the protection of client and consumers’ privacy rights as a fundamental element of our business.
    Spam is unsolicited email sent in bulk. Any promotion, information or solicitation that is sent to a person via e-mail without their prior consent, where there is no pre-existing relationship between the sender and the recipient, is spam.

Spam Policy Internet user privacy is of paramount importance to fungusclearsolution.com and our customers. We support the protection of client and consumers’ privacy rights as a fundamental element of our business. Spam is unsolicited email sent in bulk. Any promotion, information or solicitation that is sent to a person via e-mail without their prior consent, where there is no pre-existing relationship between the sender and the recipient, is spam. To see more information on our spam policy, please access the following link: https://fungusclearsolution.com/spampolicy/

MISCELLANEOUS
This Agreement and any operating rules for the Vitality Health LLC Sites established by Vitality Health LLC constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. Any dispute arising under or relating to this Agreement or any Vitality Health LLC Site shall be brought in state or federal courts in New York, New York, and you hereby irrevocably consent to the jurisdiction of such courts. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. You also give full permission to Vitality Health LLC to charge other accounts provided on items purchased and not paid for. The section headings used herein are for convenience only and shall not be given any legal import.

DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.

Except as provided in subsection “i” below and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof, the Privacy Policy, the Shipping & Returns Policy, our relationship, or your use or attempted use of the Website or any product or service, shall be submitted to and finally resolved by individual, confidential arbitration under the rules of the American Arbitration Association (“AAA”) then in effect.The following terms shall apply. You, Vitality Health LLC, or any involved third party may pursue a claim. Vitality Health LLC agrees to final and binding confidential arbitration should it have any claims against you. Likewise, you agree to final and binding confidential arbitration should you have any claims against Vitality Health LLC. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any claims to final and binding confidential arbitration. This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.

a. Required Pre-Dispute Procedures

We acknowledge and agree that before initiating any claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by e-mail to support@getfungusclear.com. Vitality Health LLC will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Vitality Health LLC or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in New York, New York to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “i” below. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions.

b. Commencing Arbitration

You and Vitality Health LLC agree to commence any arbitration proceeding within 1 year after the claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.

c. Arbitration Location

If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in New York, New York unless Vitality Health LLC otherwise agrees to arbitrate in another forum requested by you.

d. Organization, Rules, and the Arbitrator

We each agree that any and all claims other than those exempted under subsection “i” below shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “b” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy , the Shipping & Returns Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Vitality Health LLC.

e. Fees

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. We will reimburse the fees charged by the arbitrator for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.

f. Governing Law and Award

The arbitrator shall follow the substantive law of the State of New York without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

g. Enforceability

This provision survives termination of your account or relationship with Vitality Health LLC, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

h. Miscellaneous

Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except all claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Vitality Health LLC and shall not be modified except in writing by Vitality Health LLC.

i. Exceptions

Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Vitality Health LLC both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. Vitality Health LLC will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in New York, New York: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents, or the intellectual property rights of a third-party; or (ii) an action by Vitality Health LLC for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “i” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “i,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York, and forever waive any challenge to said courts’ jurisdiction and venue.

j. Amendments

Vitality Health LLC reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of any product or services on or through the Website, or use or attempted use of an Vitality Health LLC product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Vitality Health LLC will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase or use of any products or services on or through the Website, or use or attempted use of an Vitality Health LLC product or service, is affirmation of your consent to such material changes.

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A SERVICE OR PRODUCT PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US AT support@getfungusclear.com. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED, OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.

Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.

Vitality Health LLC
122 1/2 Broadway N Ste 100 #43301 Fargo,
North Dakota 58102-5082 US
support@getfungusclear.com
855-633-7168