Terms of Service

DYNAMAX, INC. (“DYNAMAX, INC.”, “WE” OR “US”) TERMS OF SERVICE

THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND DYNAMAX, INC..  THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.MEDICINEBALLS.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.MEDICINEBALLS.COM BY DYNAMAX, INC., ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”).  BY MAKING A PURCHASE AND REGISTERING FOR AN ACCOUNT, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.

NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH DYNAMAX, INC..  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

Changes.

DYNAMAX, INC. may make changes to the content and Services offered on the Site at any time. DYNAMAX, INC. can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by sending an email to the address that you have provided. By using this Site after DYNAMAX, INC. has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.

General Use.

By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms.  If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless DYNAMAX, INC. if the Minor breaches any of these Terms.  If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the DYNAMAX, INC. or the Site.

DYNAMAX, INC. provides content through the Site and through the Services that is copyrighted and/or trademarked work of DYNAMAX, INC. or DYNAMAX, INC.’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”).  Materials may include logos, graphics, video, images, software and other content.

Subject to the terms and conditions of these Terms, and your compliance with these Terms, DYNAMAX, INC. hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use.  Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.

If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.

Using the Site and the Services on the Site.

You can simply view the Site and not use any Services on the Site.  You need not register with DYNAMAX, INC. to simply visit and view the Site.

However, in order to access certain password-restricted areas of the Site (such as completing a purchase of Products) and to use certain Services and Materials offered on and through the Site, you must register with DYNAMAX, INC. for an account and receive a password.

Password Restricted Areas of this Site.

If you desire to register for an account with DYNAMAX, INC., you must submit the following information through the account registration page on the Site:  name, address, phone number, and credit card information You will also have the ability to provide additional optional information which is not required to register for an account but may be helpful to DYNAMAX, INC. in providing you with more a more customized experience when using the Site or its Services.  Once you have submitted your account registration information, you will create a password and log into your account on the Site to complete the account registration process.

You are responsible for maintaining the confidentiality of your DYNAMAX, INC. Password (“Password”), and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password.  You agree to notify DYNAMAX, INC. if your Password on this Site is lost, stolen, if you are aware of any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site.

All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.

Purchases.

If applicable, you agree to pay all fees or charges to your account based on DYNAMAX, INC.’s fees, charges, and billing terms in effect as shown on the Payment Page.  In addition, you agree that any purchases of Products or goods made via the site are made subject to the Terms and Conditions of Sale (and you agree to those terms). If you do not pay on time or if DYNAMAX, INC. cannot charge your credit card, PayPal or other payment method for any reason, DYNAMAX, INC. reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms.  You are expressly agreeing that DYNAMAX, INC. is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms.  If you cancel your account at any time, you will not receive any refund.  If you have a balance due on any account, you agree that DYNAMAX, INC. may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

Electronic Communications.

By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from DYNAMAX, INC..  These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site.  These electronic communications are part of your relationship with DYNAMAX, INC..  You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Privacy Policy.

Please review DYNAMAX, INC. Privacy Policy (the “Privacy Policy”) which explains how we use information that you submit to DYNAMAX, INC..

Submissions.

You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the Services available in connection with this Site.  You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you.  You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make.  You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.

Unless otherwise explicitly stated herein or in DYNAMAX, INC. Privacy Policy, you agree that any Submission provided by you in connection with this Site is provided on a non-proprietary and non-confidential basis.  You hereby grant to DYNAMAX, INC. a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Submissions, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Submissions.  We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.  DYNAMAX, INC. agrees to use any personally identifiable information contained in any of your Submissions in accordance with DYNAMAX, INC.’s Privacy Policy.

You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.

When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below.  Those prohibitions do not require DYNAMAX, INC. to monitor, police or remove any Submissions or other information submitted by you or any other user.

Unauthorized Activities.

When using this Site and/or the services, you agree not to:

• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
• Use racially, ethnically, or otherwise offensive language.
• Discuss or incite illegal activity.
• Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
• Post anything that exploits children or minors or that depicts cruelty to animals.
• Post any copyrighted or trademarked materials without the express permission from the owner.
• Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
• Use any robot, spider, scraper or other automated means to access the Site.
• Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
• Alter the opinions or comments posted by others on this Site.
• Post anything clearly false or misleading.
• Post anything unrelated to our business, products or services.
• Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.

This list of prohibitions provides examples and is not complete or exclusive.  DYNAMAX, INC. reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that DYNAMAX, INC. determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. DYNAMAX, INC. may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at DYNAMAX, INC.’s discretion, DYNAMAX, INC. will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.

Unauthorized use of any Materials contained on this Site may violate certain laws and regulations.

You agree to indemnify and hold DYNAMAX, INC. and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) DYNAMAX, INC. or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.

Proprietary Rights.

DYNAMAX, INC. is a trademark of DYNAMAX, INC. in the United States.  Other trademarks, names and logos on this Site are the property of their respective owners.

Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of DYNAMAX, INC., Copyright © 2017 DYNAMAX, INC..  All rights not expressly granted herein are reserved.  Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

Intellectual Property Infringement.

DYNAMAX, INC. respects the intellectual property rights of others, and we ask you to do the same.  DYNAMAX, INC. may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others.  If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide DYNAMAX, INC.’s designated agent the following information:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit DYNAMAX, INC. to locate the material.
• Information reasonably sufficient to permit DYNAMAX, INC. to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
• 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 and/or trademark owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

DYNAMAX, INC.’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:

Sarah Saville 1300 Smith Road Suite 104 Austin, Texas 78721 (+1)800-880-0469

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to DYNAMAX, INC. designated agent that includes all of the following information:

1.  Your physical or electronic signature;

2.  Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

3.  A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

4.  Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which DYNAMAX, INC. may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers

DYNAMAX, INC. reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.   

Disclaimer of Warranties.

Your use of this Site and/or the Services is at your own risk.  The Materials have not been verified or authenticated in whole or in part by DYNAMAX, INC., and they may include inaccuracies or typographical or other errors.  DYNAMAX, INC. does not warrant the accuracy of timeliness of the Materials contained on this Site.  DYNAMAX, INC. has no liability for any errors or omissions in the Materials, whether provided by DYNAMAX, INC., our licensors or suppliers or other users.

DYNAMAX, INC., FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS.  UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  DYNAMAX, INC. DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.

Limitation of Liability.

DYNAMAX, INC. SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DYNAMAX, INC. BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF DYNAMAX, INC. KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.

Local Laws; Export Control.

DYNAMAX, INC. controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations.  If you use this Site outside the United States of America, you are responsible for following applicable local laws.

Feedback.

If you send or transmit any communications, comments, questions, suggestions, or related materials to DYNAMAX, INC., whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary.  Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and DYNAMAX, INC. is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion.  Notwithstanding the foregoing, you understand and agree that DYNAMAX, INC. is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

Dispute Resolution and Arbitration; Class Action Waiver.

Please read the following (this “Provision”) carefully. It affects your rights.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at orders@medicineballs.com.  This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and DYNAMAX, INC..  Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.  You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Provision carefully.  It provides that all Disputes between you and DYNAMAX, INC. shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this Provision, “DYNAMAX, INC.” means DYNAMAX, INC. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents.  The term “Dispute” means any dispute, claim, or controversy between you and DYNAMAX, INC. regarding, arising out of or relating to any aspect of your relationship with DYNAMAX, INC., whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as DYNAMAX, INC.’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give DYNAMAX, INC. an opportunity to resolve the Dispute.  You must commence this process by mailing written notification to DYNAMAX, INC., orders@medicineballs.com  (+1) 800.880.0469.  That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek.  If DYNAMAX, INC. does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.  You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or DYNAMAX, INC. may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”).  You may opt out of this Provision by mailing written notification to DYNAMAX, INC. at orders@medicineballs.com  or at ATTN: _Customer Service 1300 Smith Road Suite 104 Austin, Texas 78721.  Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with DYNAMAX, INC. through arbitration.  Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with DYNAMAX, INC..  Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or DYNAMAX, INC. may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Provision governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action or representative action procedures or rules apply to the arbitration.

Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or DYNAMAX, INC. may initiate arbitration in either [CLIENT’s U.S. location] or the federal judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – DYNAMAX, INC. will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with DYNAMAX, INC. as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and DYNAMAX, INC. specifically agree to do so in writing following initiation of the arbitration.  If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you.  Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by entering into this Agreement you and DYNAMAX, INC. are each waiving the right to a jury trial or a trial before a judge in a public court.  In the absence of this Provision, you and DYNAMAX, INC. might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions).  Except as otherwise provided below, those rights are waived.  Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your service with DYNAMAX, INC. or its affiliates.  Notwithstanding any provision in this Agreement to the contrary, we agree that if DYNAMAX, INC. makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require DYNAMAX, INC. to adhere to the present language in this Provision if a dispute between us arises.

Language.

The Parties hereto have expressly required that this agreement and all documents and notices relating thereto be drafted in the English language.

General.

DYNAMAX, INC. prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action.  However, certain violations of these Terms, as determined by DYNAMAX, INC., may result in immediate termination of your access to this Site without prior notice to you.  The Federal Arbitration Act, Texas state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms.  Foreign laws do not apply.  The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement.  Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Travis County in the State of Texas.  If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.  DYNAMAX, INC.’s failure to enforce any of these Terms is not a waiver of such term.  These Terms are the entire agreement between you and DYNAMAX, INC. and supersede all prior or contemporaneous negotiations, discussions or agreements between you and DYNAMAX, INC. about this Site.  The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

California Consumer Notice.

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by DYNAMAX, INC., 1300 Smith Road Suite 104 Austin, Texas 78721.  If you have a question or complaint regarding the Site or Service, please contact Customer Service at orders@medicineballs.com.  You may also contact us by writing DYNAMAX, INC., 1300 Smith Road Suite 104 Austin, Texas 78721. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

Contact Us.

If you have any questions about these Terms or otherwise need to contact DYNAMAX, INC. for any reason, you can reach us at orders@medicineballs.com  (+1) 800.880.0469.