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Privacy Policy

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, BROWSING, OR USING THIS WEBSITE, ONLINE SERVICE OR MOBILE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE, ALONG WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE, ONLINE SERVICE OR MOBILE APPLICATION.

THESE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

TERMS OF USE

These Terms of Use apply to your access to, and use of, all or part of any website, online service or mobile application of Fit Omni LLC and/or its subsidiaries and affiliated companies (collectively, "Omni"), including www.fitomni.com  and any other website, online service, or mobile application where these Terms of Use are posted or are accessible via hyperlink (collectively, the "Sites").

1. Ability to Agree to Terms of Use

The Sites are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Sites under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. If you are over the age of 18, you acknowledge that you are fully able and competent to comprehend, understand and enter into the terms, conditions, limitations, obligations, representations and warranties contained in these Terms of Use.

2. Site Policies; Changes to Site and Terms of Use

Please review our other policies, such as our Returns & Refunds policy, posted on the Sites. These policies also govern your use of the Sites and any products or services sold or distributed by Omni through the Sites. We may terminate, change, suspend or discontinue any aspect of the Sites, in whole or in part, including the availability of any features of the Sites, at any time and without notice. We also reserve the right, at our sole discretion, to change, modify, add or remove any portion of these Terms of Use or other policies, in whole or in part, at any time and without notice. We may terminate any authorization and rights given above at any time and without notice. Any modifications will be effective immediately upon posting the revisions to the Sites, and you waive any right you may have to receive specific notice of such modifications. Your continued use of the Sites after any changes to these Terms of Use are posted on the Sites will be considered acceptance of those changes; therefore, you should frequently review these Terms of Use and applicable policies to understand the terms and conditions that apply to your use of the Sites. In the event that you do not agree to any changes or modifications of these Terms of Use, you must stop accessing and using the Sites.

3. Privacy Policy

You confirm that you have read our Privacy Policy, the terms of which are incorporated herein, and agree that the terms of the Privacy Policies are reasonable. You consent to the use of your personal information in accordance with the terms of and for the purposes set forth in our Privacy Policy. Please visit the Privacy Policy by clicking on this link: https://fitomni.com/terms/privacy-policy

4. Conduct

In using the Sites, you are prohibited from any resale or commercial use of the Sites or any Content (as defined below); any collection and use of any product listings, descriptions, or prices; any derivative use of the Sites or any Content; or any use of data mining, robots, or similar data gathering and extraction tools. The Sites or any portion of the Sites may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Omni. You may not frame, deep link, or utilize any similar techniques to enclose the Sites or any Content, Data, trademark, logo, or other intellectual property or proprietary information (including images, text, page layout, or form) of Omni or our business affiliates without the express written consent of Omni. You may not use any metatags or any other "hidden text" utilizing Omni's name or trademarks without the express written consent of Omni. You shall be solely liable for any damages resulting from any infringement of any intellectual property or proprietary right, or any other harm resulting from your unauthorized use of the Sites.

Unless otherwise specified, the Sites are for your personal and non-commercial use. You may display, and subject to any expressly stated restrictions or limitations relating to specific material, electronically copy, download, print and copy portions of the material from the different areas of the Sites solely for your own non-commercial use. No rights or licenses to the material or any portion thereof are granted, explicitly or impliedly, and you may not modify, reproduce, distribute, republish, display or transmit any Content without the prior written permission of Omni.

The Sites sell products and services to retail consumers and authorized resellers only. The limited license to the Sites granted to you does not include and strictly prohibits: any resale or export of the Sites or the Contents, including any products; any collection and use of any product listings, descriptions, or prices other than as expressly authorized herein; or any derivative use of the Sites or the Contents; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms of Use are reserved and retained by Omni or its licensors, suppliers, other content providers. We reserve the right to terminate this license and your access to the Sites in the event you fail to comply with any of these Terms of Use or our other policies. 

5. Accuracy, Completeness and Timeliness of Information

The information presented on or through the Sites is made available solely for general information purposes and convenience. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. Omni disclaims all liability and responsibility arising from any reliance placed on such materials by you or by anyone who may be informed of its contents. Omni offers and displays the products on the Sites as reasonable representations and availability of the color, configuration, design, texture, and/or look of its products. However, we cannot guarantee that your monitor's display of merchandise color or detail will be accurate. On occasion, the Sites may contain incomplete information, typographical errors, or inaccuracies as to description, pricing, sizing, fabrication, color, promotions, offers, product shipping charges, transit times or availability. Additionally, note that certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We reserve the right to correct errors, inaccuracies or omissions, and to change or update information at any time without prior notice (including after your order has been placed). 

6. Products Availability and Prices

The features, content, specifications, products, services, and prices and availability of products and services described or depicted on the Sites are subject to change at any time without notice. Certain products or services may be available exclusively online through the Sites. Some products or services may have limited quantities and are subject to return or exchange only according to our Returns & Refunds policy. We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to refuse any order you place with us. We reserve the right to limit the quantities of any products or services that we offer. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by unauthorized dealers, resellers or distributors. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product or service at any time. We undertake no obligation to update, amend or clarify information on the Sites, including without limitation, pricing information, except as required by law. Any offer for any product or service made on the Sites is void where prohibited.

7. Intellectual Property Rights

Unless otherwise noted, the Sites and all materials, including trademarks, images, illustrations, designs, buttons, icons, logos, photographs, digital downloads and written and other materials that appear as part of the Sites (collectively, the "Content") are intellectual property owned, controlled or licensed by Omni or its affiliates. You are prohibited from reproducing, reverse engineering, transmitting, disassembling, modifying or creating derivative works with respect to the Sites or any Content. Nothing on the Sites is to be construed as granting, by implication, estoppel or otherwise, any license or right to the use of intellectual property displayed on the Sites without the prior written permission of Omni. Any rights not expressly granted herein are reserved by Omni and/or its third party providers.

8. Digital Millennium Copyright Act

To notify Omni of a copyright infringement, contact Omni's Copyright Agent pursuant to the Digital Millennium Copyright Act ("DMCA"). Omni's designated Copyright Agent copypyright@fitomni.com to receive notification of claimed infringement is Copyright Agent, 1717 McKinney Ave Dallas, TX 75202,  copyright@fitomni.com. Please provide Omni's Copyright Agent with the following information in writing (see 17 U.S.C. 512(C)(3)):

· A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by the notification, a representative list of such works;

· A description of the material that is claimed to be infringing or to be the subject of infringing activity that you request to be removed and a description (such as the subdomain link) of the location on the Sites where the allegedly infringing content appears;

· Your contact information including name, address, telephone number, and, if available, an e-mail address;

· A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; 

· A statement, under the penalty of perjury, that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright allegedly being infringed; and 

· A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed.

If, in response to necessary notice of an alleged copyright infringement, Omni removes your content and you believe that your content is not infringing, or you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in the content, you may send a counter-notice containing the following information to the Copyright Agent:

· A description of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

· A statement, submitted under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification; and

· Your name, address, telephone number, e-mail address, and a statement that you consent to the jurisdiction of the federal court in Dallas, Texas, and a statement that you will accept service of process from the person who provided notification of the alleged infringement; and

· Your physical or electronic signature.

If a counter-notice is received by the Copyright Agent, Omni may send a copy of the counter-notice to the original complaining party informing that person it may replace the removed content or cease disabling it in 10 business days unless the copyright owner files an action seeking a court order against the content provider.

Please note that notice to the designated Copyright Agent is only for reporting claims of copyright infringement in connection with the Site. Contacts for other matters are provided elsewhere through these Terms of Use. 

9. Links to Other Websites and Services

The Sites may provide links to third-party websites or resources, including links that contain financial or investment information about Omni. Omni provides third-party links for your convenience only, and is not responsible for the content of any third party websites linked to or from the Sites. Links from the Sites to any third-party website does not mean that Omni approves, endorses or recommends that site. Omni disclaims all warranties, express or implied, as to the accuracy, legality, reliability or validity of any content on any such third-party website. If you decide to access such third-party websites, you acknowledge that you do so entirely at your own risk. You should carefully review the terms of use and privacy policies on any third party site

For the purposes of this section, third-party websites or resources include links to Omni independent dealers (the "Dealers"), and Omni is not responsible for any of the actions, services, or omissions of the Dealers, including, but not limited to scheduling, quality of services, dealer inventory, dealer price, and any other issues that may result from your transaction with the Dealers.

10. Your Account

If you use any Sites, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account and password. You must promptly notify us via e-mail at info@fitomni.com if your password is lost, stolen or used without permission. We reserve the right to terminate any user account in the event you fail to comply with any of these Terms of Use, our Privacy Policy, or any other policy on the Sites. Omni does not sell products to children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. Omni reserves the right to refuse service, terminate accounts, remove or edit content, or cancel or limit orders in its sole discretion.

You agree to provide current, complete and accurate purchase and account information for all purchases made through the Sites. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a credit card or other content. 

11. Comments, Feedback, and other Submissions

Omni welcomes your comments, feedback, and other submissions through the Sites. We do not, however, accept confidential or proprietary information. 

Accordingly, you represent and warrant that all comments, feedback, suggestions, creative materials, information, ideas, notes, drawings, concepts, inventions or other submissions disclosed, submitted, made available or offered to Omni using the Sites (collectively, "Data") are accurate, not confidential, and not in violation of any contractual restrictions, or other third party rights. We will have no obligations with respect to the Data, and that you will indemnify us for all claims resulting from Data and other content you supply. Subject to the Privacy Policy, by making a submission, you grant to Omni a non-exclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to collect, copy, prepare derivative works of, modify, adapt, translate, improve, distribute, publish, perform, display, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any and all Data without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted in this Terms of Use. You agree that you will not provide us with any Data that could allow an individual person to be identified unless there is a field for the provision of such Data.

You may not submit offensive, profane, inappropriate, obscene, defamatory, threatening, illegal, unlawful, scandalous, inflammatory, pornographic or otherwise objectionable content or information, or any other material that is invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages, or could rise to any civil or criminal liability under the law. Omni reserves the right to remove or edit user-generated content, from time to time, but Omni does not control or direct users' actions on the Sites and hence will not be responsible for user-generated content or information that may be available on the Sites.

12. Disclaimer; Limitation of Liability

THE SITES AND ALL CONTENT, INFORMATION, SERVICES, AND PRODUCTS OF THE SITES ARE PROVIDED ON AN "AS IS" 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, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. OMNI MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS, MISTAKES OR OMISSIONS IN THE CONTENT OR PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITES.

YOU ACKNOWLEDGE, BY YOUR USE OF THE SITES, THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE SITES, AND THAT OMNI WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THE SITES. OMNI MAKES NO WARRANTY THAT (I) THE SITES WILL MEET YOUR REQUIREMENTS; (II) ACCESS TO THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITES OR PURSUANT TO YOUR USE OF THE SITES WILL MEET YOUR EXPECTATIONS; (V) ANY ERRORS ON THE SITES WILL BE CORRECTED; OR (VI) THE SITES OR SERVICES ON WHICH THEY ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

IN NO EVENT WILL OMNI OR ITS PARENT, SUBSIDIARIES, AFFILIATES, SUCCESSORS AND ASSIGNS, LICENSORS AND SERVICE PROVIDERS, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, AND SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SITES AND/OR THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE SITES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FROM LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF OMNI HAD BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. IN PARTICULAR, AND WITHOUT LIMITATION, OMNI WILL NOT BE LIABLE FOR THE DAMAGES OF ANY KIND RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SITES OR FROM ANY CONTENT POSTED ON THE SITES BY OMNI OR ANYONE ELSE. 

OMNI DOES NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY USER-GENERATED CONTENT DISPLAYED, UPLOADED, POSTED ON ANY MESSAGE BOARD, OR OTHERWISE DISTRIBUTED THROUGH THE SITES AND WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM USER-GENERATED CONTENT. HOWEVER, NOTHING IN THIS SECTION WILL BE INTERPRETED TO AFFECT THE INDIVIDUAL PRODUCT WARRANTIES THAT ARE STANDARD FOR OMNI PRODUCTS.

IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENTS OF THE SITES, OR DO NOT AGREE WITH THESE TERMS OF USE, OMNI’S PRIVACY POLICY OR ANY OTHER POLICIES OF THE SITES, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITES.

CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 12. 

13. Indemnification

To the fullest extent permitted by law, you agree to defend, indemnify and hold Omni, our parent, subsidiaries, affiliates, successors and assigns, licensors and service providers, and each of its/their respective officers, directors, partners, employees, contractors, agents, licensors, and suppliers harmless from and against any and all claims, damages, costs and expenses, including attorney's fees, arising from or related to, a violation by you or your agents of these Terms of Use, your infringement of any third party right, including, but not limited to, any intellectual property or proprietary right, your use of the Sites or any other person accessing the Sites using your Internet account, or the use of the Sites by any other person accessing the Sites on your behalf or acting as your agent.

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13. 

14. Governing Law and Jurisdiction

Your use of the Sites will be governed in all respects by applicable federal law and the laws of the State of Texas, USA, without regard to choice of law provisions. You consent and submit to the sole and exclusive jurisdiction by and venue in the state or federal courts located in the State of Texas, United States of America, in any legal proceeding directly or indirectly arising out of or relating to the Sites, these Terms of Use, our Privacy Policy, any other policies on our Sites, and any dispute of any sort that might arise between you and us that are heard in court (excluding arbitration and small claims court).. By using the Sites, you consent to service of process in accordance with the rules of such courts, irrevocably submit to the jurisdiction of such courts, and waive any objection that you may have to either the jurisdiction or venue of such courts. 

IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN SECTION 19. 

15. International Law

Omni makes no representation that materials in the Sites are appropriate or available for use in countries outside the USA and prohibits access from territories where the Content is illegal. Those who choose to access the Sites from locations outside the USA do so at their own initiative and are responsible for compliance with applicable local laws. You may not use or export the materials in violation of U.S. export laws and regulations. Any claim relating to the materials will be governed by the substantive laws of the State of Texas.

16. Electronic Communications

When you use the Sites, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you in a variety of ways, such as by e-mail, text, or by posting notices and messages on the Sites. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

17. General

The terms and conditions found in these Terms of Use, in the Privacy Policy, and in all other policies on the Sites that reference these Terms of Use or the Privacy Policy, set forth the entire understanding and agreement between you and Omni with respect to the Sites unless certain services offered through the Sites require your agreement to additional terms and conditions. You acknowledge that any other agreements between you and Omni with respect to the Sites, whether oral or written, are superseded and of no force or effect (including, but not limited to, any prior versions of the Terms of Use). Neither the course of conduct between the parties nor trade practice will act to modify any of these terms and conditions. If any provision of these Terms of Use is deemed to be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. You agree that these Terms of Use, all agreements and notices incorporated herein, and our rights and duties under these Terms of Use may be automatically assigned by us in our sole discretion, to a third party. You may not assign these Terms of Use or your obligations to any other individual or entity, and any attempt by you to do so is void. The provisions regarding the parties’ rights and obligations with respect to indemnification, intellectual property, and dispute resolution, as well as any other provisions necessary to interpret the respective rights and obligations of the parties under these Terms, shall survive the expiration or termination of these Terms.

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 17.

18. Disputes

Except as otherwise expressly set forth in these Terms of Use, any dispute, claim or controversy at law or equity relating in any way to these Terms of Use, our Privacy Policy, any other policy available on the Sites, any products or services sold or distributed by Omni through the Sites, your use of the Sites, or to and any dispute of any sort that might arise between you and us (each a “Claim”) that cannot be resolved informally or in small claims court shall be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. In order to expedite and control the cost of disputes, you and we agree that any Claim will be resolved as follows:

A. Informal Resolution: 


Most disputes can be resolved without resort to litigation. You can reach our customer service department at info@fitomni.com  or (833)348-6664. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our customer service department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the Claim and the requested relief. A Notice to Omni should be sent to: Omni Legal Department at legal@fitomni.com. After the Notice is received, you and we may attempt to resolve the Claim informally. 

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SUB-SECTION 18 (A).

B. Formal Resolution by Binding Arbitration: 

READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION. You agree that any dispute, controversy or Claim arising out of or relating to these Terms of Use, any policy referenced in the Terms of Use or in which these Terms of Use are referenced, the applicability of these Terms of Use to the use of the Sites, or purchase of any Omni or other products or services on or through the Sites, or to breach or enforcement, interpretation or validity of these Terms of Use, or the determination of the scope or applicability of arbitration shall be governed by the Federal Arbitration Act.

If the parties do not reach an agreed-upon solution within a period of 60 days from the time informal dispute resolution is initiated under the Informal Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve Claims, subject to the terms set forth below. By agreeing to arbitration, both you and we understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes. Instead of suing in court, both you and we each agree to settle disputes (except certain small claims or as otherwise set forth in these Terms of Use) only by arbitration. The rules in arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms of Use as a court would.

(1) Binding Arbitration: 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. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider, the Federal Arbitration Act, and federal arbitration law shall govern all aspects of this 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 of Use. If the arbitration is administered by the AAA, it shall be administered under the AAA’s Consumer Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes, if applicable). To start an arbitration proceeding, submit a Demand for Arbitration that complies with the requirements of the AAA Consumer Arbitration Rules to the AAA and mail a copy to us. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any Claims where the total amount of the award sought is $25,000 or less, the Claims will be resolved through binding non-appearance-based arbitration unless the arbitrator finds good cause to hold an in-person hearing instead. For Claims where the total amount of the award sought is more than $25,000, the right to a hearing will be determined by the ADR Provider’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 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, except as otherwise required or allowed by the ADR Provider’s rules. You acknowledge and agree that we may be entitled to reimbursement of our AAA, arbitrator’s, and/or attorney’s fees and expenses from you in the event the arbitrator finds the arbitration frivolous, brought for an improper purpose, or otherwise determines that we are entitled to such reimbursement.

(2) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration applies, 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 mutually agreed by the parties.

(3) 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. This section shall not prevent a party from submitting to a court of law any information necessary to enforce this agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(4) Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to infringement, misappropriation, theft, piracy, or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also bring an individual action in a small claims court for disputes or claims within the scope of that court's jurisdiction. 

(5) Waiver of Jury Trial: THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY 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 (except as expressly excluded in this Formal Resolution by Binding Arbitration section) shall be resolved by binding arbitration. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL (including, but not limited to, any Claims, counterclaims, cross-claims, or third party claims), instead electing that the dispute be resolved by a judge. Each of the parties acknowledges that this section is a material inducement for the other party entering into these Terms of Use.

(6) Waiver of Class or Consolidated Actions: ALL CLAIMS MUST BE ARBITRATED OR LITIGATED, AS THE CASE MAY BE, ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH ANY CLAIM OF ANY OTHER CUSTOMER, USER OR PARTY, WHETHER THROUGH CLASS ACTION PROCEEDINGS, CLASS ARBITRATION PROCEEDINGS, REPRESENTATIVE ACTION, OR OTHERWISE. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Each of the parties acknowledges that this section is a material inducement for the other party entering into these Terms of Use.

These Terms govern to the extent they conflict with the ADR Provider’s rules, including, but not limited to, the AAA’s Consumer Arbitration Rules.

C. Time to Bring Your Claim:

 
ANY CLAIM YOU MAY HAVE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE (INCLUDING THE PURCHASE OF ANY PRODUCT OR SERVICE VIA THE SITE) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES; OTHERWISE, SUCH CAUSE OF ACTION OF CLAIM IS PERMANENTLY BARRED.

SEE SECTION 19 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SUB-SECTION 18(C).

19. Exclusions and Limitation; Consumer Protection Notice

If you are a consumer, the provisions in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of your State of residence. If you are a New Jersey consumer, the terms of Sections 12 (Disclaimer; Limitation of Liability), 13 (Indemnification), 17 (General), 14 (Governing Law and Jurisdiction), 18(A) (Information Resolution), and 18(C) (Time to Bring Your Claim) do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, Omni reserves all rights, defenses and permissible limitations under the law of your State of residence. Notwithstanding the foregoing, nothing in this Section shall modify Section 18(B) (Formal Resolution by Arbitration).

20. Contact Information

Questions about these Terms of Use should be sent to us at info@fitomni.com

Last modified on June 7, 2018.