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Terms of Use
Last Updated: August 24, 2023.
PLEASE READ THESE TERMS OF USE (ALSO REFERRED TO HEREIN AS "AGREEMENT") CAREFULLY BEFORE USING THE MODAVIVO WEBSITE. These terms of use are a binding contract that governs use of the Modavivo website, limits liability of Modavivo and other persons, specifies the jurisdiction for resolution of disputes, and contains other important provisions.
Each time you access or use the Modavivo website, you acknowledge and signify that you have read, understood, and agree to be bound by the most current version of these terms of use. If you do not agree with these terms of use, you may not access or use the Modavivo website.
1. Your Acceptance of these Terms of Use
These Terms of Use are a legal agreement between you and Modavivo ("Modavivo") regarding your access to and use of the Modavivo website located at shopmodavivo.com and all content, information, products, and services available on or through the website (collectively, the "Website"). The Website is the property of Modavivo and its licensors.
Each time you access or use the Modavivo Website, you acknowledge and signify that you have read, understood, and agree to be bound by the most current version of these Terms of Use. If you do not agree with these Terms of Use, you may not access or use any aspect of the Website.
These Terms of Use are in addition to any other agreement you may have with Modavivo, including an agreement for your purchase of Modavivo products or services.
2. Changes to these Terms of Use
Modavivo may in its discretion change these Terms of Use at any time, without any prior notice to you, by posting the changed Terms of Use on the Website. The changed Terms of Use are effective immediately upon posting. It is your responsibility to check the "Last Updated" date at the top of these Terms of Use and review any changes since the last version. By using the Website after these Terms of Use have been changed, you signify your acceptance and agreement to the changed Terms of Use. You may not change, supplement or amend these Terms of Use in any manner.
3. Permissible Users
The Website may be used only by natural persons resident in the United States.
You may not use the Website if you are under the age of majority in the jurisdiction in which you live (which in most jurisdictions is 18 years of age) or if you cannot form legally binding contracts under applicable law. If you are under the age of majority, then your parent or legal guardian may use the Website on your behalf.
You may not use the Website if you breach these Terms of Use, if your permission to use the Website has been suspended or terminated by Modavivo, or if these Terms of Use as they apply to you have been terminated.
4. Permissible Use
The Website is made available to you for your lawful, personal, non-commercial use only. You may use the Website only for the purposes and in the manner permitted by the Website and subject to these Terms of Use and all applicable laws. Using the Website for any other purpose or in any other manner is strictly prohibited.
The Website and its content may not be copied, reproduced (except for printing in accordance with this section), imitated, republished, translated, uploaded, posted, publicly displayed, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, for any purpose whatsoever, without the express prior written consent of Modavivo.
You may print Website pages for your personal, non-commercial informational purposes only, provided that you do not modify any of the pages or other content and you do not remove or alter any visible or non-visible identification, marks, notices or disclaimers. You may not use any of the software or services that are used by Modavivo in the operation or provision of the Website except while you are using the Website in accordance with these Terms of Use.
5. Other Terms and Conditions
Additional terms and conditions and policies (collectively, the "Other Terms and Conditions") apply to purchases of products and services through the Website and to specific portions, features or services (such as contests and other promotions) of or offered through the Website. Without limiting the generality of the foregoing, please check our website for our latest Policies.
Modavivo may in its discretion change the Other Terms and Conditions at any time, without any prior notice to you, by posting changed Other Terms and Conditions on the Website. The changed Other Terms and Conditions are effective immediately upon posting. It is your responsibility to check the "Last Updated" date at the top of these Terms of Use and review any changes since the last version.
The Other Terms and Conditions are incorporated into and form part of these Terms of Use by this reference. If there is a conflict or inconsistency between any Other Terms and Conditions and these Terms of Use, the Other Terms and Conditions will govern regarding the specific purchase, portion, feature or service to which they apply.
6. Ownership of Website and Content
The Website and its content (including all text, graphics, interfaces, images, video, sounds, music, artwork, designs, computer code, data, and other elements available on or through the Website, and the design, structure, selection, arrangement and look and feel of those items and the Website as a whole) are owned solely by Modavivo, its affiliates and its licensors, and are protected by US and international copyright, trademark and other laws. Your use of the Website does not transfer to you any right, title or interest in, to or associated with the Website or its content.
7. Your Information
You will ensure that all information you provide to Modavivo, through the Website or otherwise, including account information (including your legal name, residential address, e-mail address), payment information (including your credit card numbers and their expiration dates), and transaction-related information, is true, accurate, current, and complete. Modavivo will rely on the information you provide. You will be solely responsible and liable for any and all loss, damage and additional costs that you, Modavivo or any other person may incur as a result of your submission of any false, incorrect or incomplete information or your failure to promptly update your account information and payment information if they change.
8. Communications
- By You
You authorize Modavivo to: (a) accept communications it receives from you by means of the Website as if those communications had been given directly by you in writing and signed by you; and (b) respond to your communications through the Website, by e-mail or other means of communication.
Communications you send to Modavivo are not effective unless and until they are processed by the responsible Modavivo representative. Modavivo may refuse to process any communications sent to Modavivo, or may reverse the processing of any communications sent to Modavivo, at any time in Modavivo’s discretion, and without any notice or liability to you or any other person, including if Modavivo believes the communication to be fraudulent or unlawful or defective, inaccurate or incomplete due to a technical malfunction.
- Text Messaging/SMS Marketing Terms
By providing your phone number to receive texts/SMS marketing, you expressly consent to receive from Modavivo and its representatives personalized and automated marketing and promotional text messages/SMS related to Modavivo’s products and services, events and other items of interest sent to the phone number you provided. Your consent to such messages is not required as a condition of purchasing goods or services from Modavivo. Message frequency will vary. Message and data rates may apply.
You may discontinue the receipt of these text messages/SMS at any time by texting STOP to the short code or telephone number from which text messages are being sent. We may send you a text message to confirm that you have been unsubscribed. For additional help, text HELP to the short code or telephone number from which text messages are being sent, or contact Modavivo’s Customer Care at contact@shopmodavivo.com.
Modavivo and carriers are not liable for delayed or undelivered messages. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
Please see our Privacy Policy.
9. Personal Information Privacy
Modavivo collects personal information and non-personal information from users of the Website. Modavivo’s Privacy Policy is available online.
SMS
By consenting to Modavivo’s SMS marketing in the checkout and initializing a purchase or subscribing via our subscription tools, you agree to receive recurring text notifications (for your order, including abandoned checkout reminders), text marketing offers, and transactional texts, including requests for reviews from us, even if your mobile number is registered on any state or federal do-not-call list. Message frequency varies. Consent is not a condition of purchase.
If you wish to unsubscribe from receiving text marketing messages and notifications, reply with STOP to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. You understand and agree that alternative methods of opting out, such as using alternative words or requests, will not be considered a reasonable means of opting out. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply.
For any questions, please text HELP to the number you received the messages from. You can also contact us at contact@shopmodavivo.com for more information.
We have the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
Your right to privacy is important to us. You can see our Privacy Policy to determine how we collect and use your personal information.
10. Misprints and Errors, Product Availability and Prices
Modavivo endeavours to provide current and accurate information on the Website, but misprints, errors, inaccuracies, omissions (including incorrect specifications for products) or other errors may sometimes occur. Modavivo cannot guarantee that products and services advertised on the Website will be available when ordered or thereafter, and does not warrant that the content of the Website (including product descriptions, photographs and colours) is accurate or complete. Please note that your monitor might not accurately display product colours.
Modavivo reserves the right to: (a) correct any error, inaccuracy or omission at any time without prior notice or liability to you or any other person; (b) change at any time the products and services advertised or made available for sale on the Website, the prices, fees, charges and specifications of those products and services, any promotional offers and any other Website content without any notice or liability to you or any other person; (c) refuse any order you place; and (d) limit quantities available for sale or sold. The advertisements on the Website are invitations to make offers to purchase products and services and are not offers to sell. All prices and other amounts appearing on the Website are quoted in U.S. dollars.
11. Trademarks
Any use of the trademarks, service marks or trade names displayed on the Website is strictly prohibited, and nothing appearing on the Website will be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any of those trademarks, service marks or trade names.
12. Accounts and Codes
To access and use certain features and services of the Website you must have a valid Website account and use a valid user name and password (collectively "Codes") accepted by Modavivo. Accounts and Codes are personal, and may not be shared.
You are fully responsible and liable for maintaining the confidentiality of your account information and Codes and for any and all use and misuse of your account and Codes (including all transactions using your account or Codes) and for all resulting loss and damage. You may not disclose your Codes to any other person or permit any other person to use your account or Codes. You will immediately notify Modavivo’s Customer Care by e-mail to contact@shopmodavivo.com if you discover any unauthorized use of your account or you know or suspect that your Codes have been lost or stolen or become known to or used by any other person. Modavivo will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Modavivo is not under any obligation to verify the actual identity or authority of any person using your account or Codes. Modavivo may act upon any communication that is given through your account or by using your Codes.
Codes do not restrict access by Modavivo to password-protected information. Codes may not prevent unauthorized access to data or other information. Modavivo may in its discretion cancel or suspend your account or change your Codes at any time without any notice or liability to you or any other person.
Modavivo may in its discretion at any time require proof of the identity of any person seeking to access and use the Website, and may deny access to and use of the Website or parts of it or refuse to accept or act upon any communication if Modavivo is not satisfied with the proof.
13. Feedback/Submissions
You agree that you will not submit to Modavivo any information or ideas that you consider to be confidential or proprietary. Any feedback or unsolicited ideas, suggestions or other materials (including ideas for new advertising or marketing campaigns or promotions, new or improved products or services, or new product names or branding) that you send to Modavivo (collectively "Submissions") are deemed to be non-confidential, you automatically grant to Modavivo and its successors, assigns and licensees a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sublicensable right and license to use and exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions in any manner and for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing any compensation or attribution to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties, and you automatically waive in favour of Modavivo and its successors, assigns and licensees any and all moral rights in the Submissions.
14. Linked Sites
For your convenience, the Website may provide links or references to other Internet sites or resources and businesses operated by other persons (collectively "Linked Sites"). Linked Sites are independent from Modavivo, and Modavivo does not endorse, and has no responsibility or liability for or control over, Linked Sites or their business, goods, services or content. Your use of Linked Sites and your dealings with the owners or operators of Linked Sites is at your own risk, and you will not make any claim against Modavivo arising from, connected with, or relating to your use of Linked Sites or your dealings with the owners or operators of Linked Sites.
15. Prohibited Activities
Deep links to the Website without the express written permission of Modavivo are strictly prohibited. Modavivo may in its discretion cancel and revoke any permission it may give to link to the Website at any time and without any notice or liability.
Framing, mirroring, scraping or data-mining the Website or any of its content in any form and by any means (including robots, spiders, or other automatic devices, programs or methodologies) is strictly prohibited. You may not use any collaborative browsing or display technologies in connection with your use of the Website or to post comments, communications or any other data of any kind to or on the Website with the intention that the posting may be viewed by other users of the Website.
You may not attempt to circumvent the ordinary navigational structure or presentation of the Website or its content, or attempt to access or obtain any Website content or other data by any means that is not purposely made available to you by the Website.
You may not attempt to gain unauthorized access to any part of the Website or its content, or any related system, network, service or data, by hacking, password mining or any other means. You may not attempt to test or tamper with the security of the Website or attempt to interfere with the proper working of the Website, any transaction being conducted through the Website, or any other person’s use of the Website.
You may not upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data.
You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website. You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Website. You shall not access the Website in order to build a similar or competitive service. Any future release, update, or other addition to functionality of the Website shall be subject to the terms of this Agreement (as amended from time to time).
16. Disclaimers
THE WEBSITE, AND THE PRODUCTS, SERVICES, AND CONTENT PROVIDED THROUGH THE WEBSITE, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, SECURITY, TIMELINESS, TITLE, QUIET ENJOYMENT, UNINTERRUPTED SERVICE, OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY MODAVIVO TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF THE PRODUCTS, SERVICES, AND CONTENT PROVIDED THROUGH THE WEBSITE TO ACHIEVE YOUR INTENDED RESULTS.
MODAVIVO DOES NOT PROMISE THAT THE WEBSITE, OR THE PRODUCTS, SERVICES, OR CONTENT PROVIDED THROUGH THE WEBSITE, WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE WEBSITE, OR THE PRODUCTS, SERVICES, OR CONTENT PROVIDED THROUGH THE WEBSITE, WILL PRODUCE SPECIFIC RESULTS. YOU USE THE WEBSITE, AND THE PRODUCTS, SERVICES, AND CONTENT PROVIDED THROUGH THE WEBSITE, AT YOUR OWN RISK. EXCEPT AS SET FORTH IN THE RETURN & EXCHANGE TERMS, IF YOU ARE DISSATISFIED WITH THE WEBSITE, OR THE PRODUCTS, SERVICES, OR CONTENT PROVIDED THROUGH THE WEBSITE, YOUR SOLE REMEDY IS TO CEASE USING THE WEBSITE, AND THE PRODUCTS, SERVICES, AND CONTENT PROVIDED THROUGH THE WEBSITE.
YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, PROVISIONING, CONFIGURING, MAINTAINING, PAYING FOR, AND PROTECTING FROM LOSS AND DAMAGE, ALL EQUIPMENT, SOFTWARE AND SERVICES (AND ALL DATA CONTAINED THEREIN) NECESSARY FOR YOUR USE OF THE WEBSITE.
17. Liability Exclusions
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL MODAVIVO BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS (INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH, OR RELATING TO THE WEBSITE OR THE PRODUCTS, SERVICES, OR CONTENT PROVIDED THROUGH THE WEBSITE; AND (B) IF NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISIONS OF THESE TERMS OF USE MODAVIVO IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL Modavivo GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO THE WEBSITE OR THE PRODUCTS, SERVICES, OR CONTENT PROVIDED THROUGH THE WEBSITE, EXCEED US$100. THE FOREGOING LIABILITY EXCLUSION AND LIMITATION APPLY TO LIABILITY UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STATUTE AND STRICT LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY MODAVIVO OR ANY PERSON FOR WHOM MODAVIVO IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE YOU OR ANY OTHER PERSON FOR THE LOSS AND DAMAGE, OR MODAVIVO KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE BEING INCURRED.
THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS AND THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES IS PROHIBITED BY LAW IN SOME JURISDICTIONS, AND SO THE FOREGOING DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
18. Indemnity
YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS MODAVIVO GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES, CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, LOSS, LIABILITIES AND OBLIGATIONS (INCLUDING DAMAGES, EXPENSES, AND COSTS), SETTLEMENT PAYMENTS, AND ATTORNEY’S FEES AND EXPENSES (COLLECTIVELY, "CLAIMS/PROCEEDINGS/LIABILITIES") DIRECTLY OR INDIRECTLY ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF THE WEBSITE OR YOUR NEGLIGENCE, MISCONDUCT, OR BREACH OF THESE TERMS OF USE. YOU WILL NOT ENTER INTO ANY SETTLEMENT OR OTHER AGREEMENT ON BEHALF OF MODAVIVO, OR WHICH AFFECTS THE RIGHTS OR INTERESTS OF MODAVIVO GROUP, WITHOUT Modavivo’S EXPRESS PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN MODAVIVO’S DISCRETION. NOTWITHSTANDING THE FOREGOING, MODAVIVO RETAINS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY CLAIMS/PROCEEDINGS/LIABILITIES WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE.
IN THESE TERMS OF USE, "MODAVIVO GROUP" MEANS MODAVIVO AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS, AND REPRESENTATIVES, JOINTLY AND SEVERALLY.
19. Changes/Termination
Notwithstanding any other provision of these Terms of Use, Modavivo may in its discretion change, discontinue, modify, restrict, suspend or terminate the Website or any of its content at any time without any notice or liability to you or any other person.
Modavivo may in its discretion and for its convenience at any time immediately suspend or terminate your permission to access and use the Website without any notice or liability to you or any other person.
These Terms of Use as they apply to you are effective unless and until terminated. You may terminate these Terms of Use by permanently ceasing to use the Website and giving written notice of termination to Modavivo’s Customer Care. Modavivo may terminate these Terms of Use at any time either by giving a notice of termination to you or by denying you access to the Website. The obligations and liabilities you incur prior to termination of these Terms of Use will survive termination. Sections 6, 7, 8, 11, 13, 15, 16, 17, 18, 20, 21 and 22 of these Terms of Use will survive termination and continue to apply and be binding upon you and Modavivo.
20. Governing Law
These Terms of Use and all related matters are and will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, consistent with the Federal Arbitration Act (US), excluding any rules of private international law or the conflict of laws that would lead to the application of the laws of any other jurisdiction and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods.
21. Dispute Resolution: Arbitration, Class Action Waiver and Jurisdiction
(a) Except as provided in paragraph (f), any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and Modavivo or Modavivo’s employees, agents, successors, or assigns, shall exclusively be settled through arbitration, except that you or Modavivo may take claims to small claims court if the dispute qualifies for hearing by such a court. There is no judge or jury in arbitration. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND REVIEW BY A COURT IS LIMITED.
(b) Arbitration shall be conducted before a single arbitrator from the American Arbitration Association ("AAA"). Information on AAA and how to start arbitration can be found at http://www.adr.org or by calling 800-778-7879. As modified by this agreement, the conduct of the arbitration shall be subject to AAA's then-current rules for commercial arbitration and, if the arbitrator deems it appropriate, consumer disputes. Notwithstanding any choice of law provision included in these Terms of Use, this arbitration agreement is subject to the Federal Arbitration Act and the New York Convention on the Enforcement of Arbitration Awards, to the extent the New York Convention is applicable.
(c) You and Modavivo must abide by these rules: (i) THE ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION; (ii) you and Modavivo will pay the arbitration costs as required by AAA's rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Modavivo will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iii) the arbitrator shall honor claims of privilege and privacy recognized at law; (iv) the arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; (v) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (vi) each party shall pay its own attorneys' fees and costs unless the claim(s) at-issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.
(d) The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you and Modavivo may elect to have the arbitration conducted by telephone or based solely on written submissions, subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Modavivo, unless the arbitrator requires otherwise.
(e) You and Modavivo agree to first attempt to negotiate any dispute informally for at least 30 days before initiating any proceedings. Such informal negotiations commence upon receipt of written notice from one party to the other ("Notice of Dispute"). Notices of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. Modavivo will send its Notice of Dispute to your billing address or to your e-mail address (if you provided it to Modavivo). If, however, you have not provided Modavivo with a billing or e-mail address, Modavivo is not required to send a Notice of Dispute to you. You will send your Notice of Dispute to Modavivo's Customer Care representatives at contact@shopmodavivo.com.
(f) A claim to enforce or protect, or concerning the validity of, any of your or Modavivo's (or any of Aritizia's licensors') intellectual property rights shall not be arbitrated. Such claims may be brought in the state and federal courts in New York, New York, or any court of competent jurisdiction. Additionally, notwithstanding the agreement to arbitrate under these Terms of Use, you or Modavivo may seek emergency equitable relief in a court of competent jurisdiction in order to maintain the status quo pending the arbitrator's ruling. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(g) With the exception of subpart (i) in paragraph (c), if any part of this dispute resolution provision is deemed invalid, unenforceable or illegal, then the balance of this dispute resolution provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (i) in the paragraph (c) is found invalid, unenforceable or illegal, then neither you nor Modavivo shall be entitled to arbitration.
(h) Except as provided in paragraph (f), if for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in Vancouver, in the Province of British Columbia, Canada, and you and Modavivo consent to the exclusive jurisdiction of the courts in Vancouver, British Columbia, Canada.
(i) Notwithstanding any provision in these Terms of Use to the contrary, you and Modavivo agree that if Modavivo makes any future change to this dispute resolution provision (other than a change to any notice e-mail address or the website link provided herein), you may reject any such change by sending Modavivo written notice within 30 days of the change to the e-mail address provided above in paragraph (e). By rejecting any future change, you are agreeing that you will arbitrate any dispute between you and Modavivo in accordance with the language of this provision.
22. Other Matters
You and Modavivo are non-exclusive, independent contracting parties, and nothing in these Terms of Use or done pursuant to these Terms of Use will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between you and Modavivo. Upon request by Modavivo, you will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of these Terms of Use. No consent or waiver by Modavivo to or of any breach of these Terms of Use by you will be effective unless in writing and signed by Modavivo or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. Except as expressly set forth in these Terms of Use, Modavivo's rights and remedies under these Terms of Use are cumulative and not exhaustive or exclusive of any other rights or remedies to which Modavivo may be lawfully entitled under these Terms of Use or at law, and Modavivo will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. The provisions of these Terms of Use will enure to the benefit of and be binding upon you and Modavivo and your respective successors and permitted assigns. If any provision of these Terms of Use is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from these Terms of Use and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance these Terms of Use would fail in its essential purpose. You will not assign, transfer, delegate, license, sub-license, or grant these Terms of Use or your rights, duties and obligations under these Terms of Use without Modavivo's express prior written consent, which consent may be withheld in Modavivo's discretion. Modavivo may, without your consent, assign these Terms of Use or any of Modavivo's rights, duties, or obligations under these Terms of Use.
These Terms of Use and the Other Terms and Conditions together set forth the entire agreement between you and Modavivo regarding the subject matter of these Terms of Use and the Other Terms and Conditions, and supersede all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, with respect to the subject matter of these Terms of Use and the Other Terms and Conditions. There are no representations, warranties, terms, conditions, undertakings, or collateral agreements, express, implied or statutory, between you and Modavivo regarding the subject matter of these Terms of Use and the Other Terms and Conditions other than as expressly set forth in these Terms of Use and the Other Terms and Conditions.
You and Modavivo have each expressly requested and required that these Terms of Use and the Other Terms and Conditions be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s'y rapportent soient rédigés en anglais.
All rights not expressly granted by these Terms of Use are reserved by Modavivo.
If you have any questions or comments regarding these Terms of Use, please contact Modavivo’s Customer Care by e-mail: contact@shopmodavivo.com.