The Financial Gym, Inc.

Terms of Service

 

Last Updated: August 29,2018

Welcome, and thank you for your interest in The Financial Gym, Inc. (“TFG,” “we,” or “us”) and our financial coaching services, our website at www.thefinancialgym.com, our budgeting tool found at https://trainingzone.financialgym.com/login, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, our “Services”). These Terms of Service are a legally binding contract between you and TFG regarding your use of our Services.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.


BY CLICKINGI ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING OUR SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF OUR SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING TFG’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE OUR SERVICES. YOUR USE OF OUR SERVICES, AND TFG’S PROVISION OF OUR SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY TFG AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TFG ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. Please note, you can opt-out of this agreement to arbitrate by contacting info@fingms.com within 30 days of first accepting these terms and stating that you (include your first and last name) decline this arbitration agreement. (See Section 16 for additional information).

1.       Service Overview. Our Services may include financial planning coaching sessions which may be conducted in-person, via video conference, or phone (“Coaching Sessions”), access to our web-based budgeting tool (“Budgeting Tool”), and access to our website.

2.       Eligibility. You must be at least 18 years old to use our Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from our Services; and (c) your registration and your use of our Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

3.       Accounts and Registration. If you are signing up for our Services with TFG directly, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, and mobile number. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at info@thefinancialgym.com.

4.       General Payment Terms. Certain features of our Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.

4.1           Price. TFG reserves the right to determine pricing for our Services. TFG may change the fees for any feature of our Services, including additional fees or charges, if TFG gives you advance notice of changes before they apply. TFG, at its sole discretion, may make promotional offers with different features and different pricing to any of TFG’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. TFG’s current standard pricing tiers are listed below. Unless otherwise specified below, all Service plans are month-to-month (subject to the Early Cancellation Policy in Section 4.4 below), and Service plan fees are due and payable monthly in advance.

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4.2           Authorization. You authorize TFG to charge all sums for the orders that you make and any level of Service you select, to the payment method you specify. If you pay any fees with a credit card, TFG may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

4.3           Subscription Service. Our Services may include automatically recurring payments for periodic charges (“Subscription Service”). If you sign-up for a Subscription Service, you authorize TFG to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to our Services. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription at least 30 days prior to the next Subscription Billing Date in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by contacting your Trainer directly via email or phone.  

4.4           Early Cancellation Policy.  If you sign up for a paid Service plan and cancel your plan before three months have lapsed, you must pay to TFG the difference between (i) the aggregate of amounts received by TFG from you in such three-month period, and (ii) the aggregate amount you would have paid if you were on the Kick-Starter plan.  E.g., if you were on the Level 2 Trainer Individual Accountability Plan at $85/month and you cancelled your plan after two months, having paid TFG an aggregate of $170, you must pay TFG the difference between what you would have paid TFG if you were on the Kickstarter plan (one-time fee of $250) and the $170 you paid for the Level 2 Individual Accountability Plan over 2 months, i.e., $80.

4.5           Delinquent Accounts. TFG may suspend or terminate access to our Services for any account for which any amount is due but unpaid. In addition to the amount due for our Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.

5.       Limited Money Back Guarantee.  If, after you complete six months of Coaching Sessions with TFG (the “Guarantee Period”), your net worth (as calculated by TFG) has not increased (either via a decrease in debt or an increase in asset value) by an amount that is greater than the total amounts you paid to TFG for the Coaching Sessions during the Guarantee Period, TFG will refund the amounts received by TFG from you for such Coaching Sessions during the Guarantee Period.  In order to be eligible for a refund under this Section, you must (i) notify TFG that you believe you are eligible for this money back guarantee within 30 calendar days after completion of the Guarantee Period; (ii) you must have attended at least four Coaching Sessions for their full duration during the Guarantee Period; and (iii) you must have completed at least 50% of the tasks assigned to you by TFG. THIS GUARANTEE IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISSATISFACTION WITH THE SERVICES.

6.       Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to our Services (“Feedback”), then you hereby assign all right, title, and interest in and to such Feedback to TFG.

7.       Ownership; Proprietary Rights. Our Services are owned and operated by TFG. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of our Services (“Materials”) provided by TFG are protected by intellectual property and other laws. All Materials provided as a part of our Services are the property of TFG or its third-party licensors. Except as expressly authorized by TFG, you may not make use of the Materials. TFG reserves all rights to the Materials not granted expressly in these Terms.

8.       Third Party Terms

8.1           Third Party Services and Linked Websites. TFG may provide tools through our Services that enable you to export information, including User Content, to third party services. If you use one of these tools, you agree that TFG may transfer that information to the applicable third party service. Third party services are not under TFG’s control, and TFG is not responsible for any third party service’s use of your exported information. Our Services may also contain links to third party websites. Linked websites are not under TFG’s control, and TFG is not responsible for their content.

8.2           Third Party Software. Our Services may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although our Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses. 

8.3           Third Party Disputes.  TFG IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, BANK, INVESTING INSTITUTION, SERVICE CONTENT PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU MAY HAVE WITH ANY CARRIER, SERVICE PROVIDER, BANK, INVESTING INSTITUTION, THIRD PARTY SERVICE, SERVICE CONTENT PROVIDER, OR OTHER THIRD PARTY ARISING FROM OR RELATING TO OUR SERVICES IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASES TFG (AND TFG’S OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

9.       User Content

9.1    User Content Generally. Certain features of our Services may permit users to upload content to or transmit content via our Services, including messages, reviews, photos, financial information, financial goals, video, images, folders, data, text, and other types of works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you post to our Services.
 

9.2    Limited License Grant to TFG. By providing User Content to or via our Services, you grant TFG a worldwide, non-exclusive, royalty-free, perpetual, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

9.3    Limited License Grant to Other Users. By providing User Content to or via our Services to other users of our Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of our Services. 

9.4    User Content Representations and Warranties. TFG disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via our Services. By providing User Content via our Services, you affirm, represent, and warrant that:

a.     you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TFG and users of our Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by TFG, our Services, and these Terms;

b.     your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TFG to violate any law or regulation; and

c.     your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

9.5    User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. TFG may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using our Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TFG with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TFG does not permit copyright-infringing activities on our Services.

9.6    Monitoring Content. TFG does not control and does not have any obligation to monitor: (a) User Content; (ii) any content made available by third parties; or (iii) the use of our Services by its users. You acknowledge and agree that TFG reserves the right to, and may from time to time, monitor any and all information transmitted or received through our Services for operational and other purposes. If at any time TFG chooses to monitor the content, TFG still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

10.    Prohibited Conduct. BY USING OUR SERVICES YOU AGREE NOT TO:

a.     use our Services for any illegal purpose or in violation of any local, state, national, or international law;

b.     violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

c.     interfere with security-related features of our Services, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of our Services except to the extent that the activity is expressly permitted by applicable law;

d.     interfere with the operation of our Services or any user’s enjoyment of our Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of our Services; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide our Services;

e.     perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

f.      sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or

g.     attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.

11.    Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use our Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

12.    Term, Termination and Modification of our Services

12.1        Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use our Services, and ending when terminated as described in Section 12.2.

12.2        Termination. If you violate any provision of these Terms, your authorization to access our Services and these Terms automatically terminate. In addition, TFG may, at its sole discretion, terminate these Terms or your account on our Services, or suspend or terminate your access to our Services, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by clicking the unsubscribe link in your account or contacting customer service at info@thefinancialgym.com. 

12.3        Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of our Services; (b) you will no longer be authorized to access your account or our Services; (c) you must pay TFG any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5, 7, 9, 12.3, through 13 - 17 will survive.

12.4        Modification of our Services. TFG reserves the right to modify or discontinue our Services at any time (including by limiting or discontinuing certain features of our Services), temporarily or permanently, without notice to you. TFG will have no liability for any change to our Services or any suspension or termination of your access to or use of our Services. If TFG discontinues our Services, TFG will provide you a refund any unused portions of prepaid fees.
 

13.    Indemnity. You are responsible for your use of our Services, and you will defend and indemnify TFG and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “TFG Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) your use of, or misuse of, our Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

14.    Disclaimers; No Warranties

TFG AND ITS STAFF ARE NOT CERTIFIED FINANCIAL PLANNERS. THE SERVICES AND ANY RECOMMENDATIONS, INFORMATION, OR ADVICE MADE AVAILABLE PURSUANT TO THE SERVICES, (COLLECTIVELY, THE “SERVICE CONTENT”) IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NONE OF THE SERVICE CONTENT SHOULD BE CONSTRUED AS PROFESSIONAL FINANCIAL ADVICE. SERVICE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL FINANCIAL ADVICE.

 

TFG DOES NOT GUARANTEE THE RESULTS OF OUR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF OR RELIANCE ON OUR SERVICES IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL RISK ASSOCIATED THEREWITH, AS ALLOWABLE TO THE EXTENT OF THE LAW. OUR SERVICES SHOULD NOT BE CONSTRUED AS A RECOMMENDATION OR OFFER TO SELL OR PURCHASE ANY PARTICULAR INVESTMENT.  YOU ARE SOLELY RESPONSIBLE FOR USING YOUR OWN JUDGMENT TO ASSESS INFORMATION PROVIDED BY TFG AND ITS STAFF IN CONNECTION WITH OUR SERVICES. TGF EXPRESSLY DISCLAIMS ANY GUARANTEE OF RESULTS OR OUTCOMES OF ANY OF THE RECOMMENDATIONS OR ADVICE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF OUR SERVICES AND SERVICE CONTENT.

 

OUR SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH OUR SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TFG DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO OUR SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH OUR SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TFG DOES NOT WARRANT THAT OUR SERVICES OR ANY PORTION OF OUR SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH OUR SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TFG DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OUR SERVICES OR TFG ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE TFG ENTITIES OR OUR SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM OUR SERVICES AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF OUR SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH OUR SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

HOWEVER, TFG DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT TFG IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

15.    Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TFG ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, OUR SERVICES OR ANY MATERIALS OR CONTENT ON OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TFG ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTION 16.4(III) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TFG ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF OUR SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TFG FOR ACCESS TO AND USE OF OUR SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

16.    Dispute Resolution and Arbitration

16.1 Generally. In the interest of resolving disputes between you and TFG in the most expedient and cost effective manner, and except as described in Section 16.2, you and TFG agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TFG ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

16.3 Arbitrator. Any arbitration between you and TFG will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TFG. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

16.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). TFG's address for Notice is: The Financial Gym, LLC, 226 5TH Ave, Suite #5, New York, NY 10001. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TFG may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TFG must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, TFG will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by TFG in settlement of the dispute prior to the arbitrator’s award; or (iii) $10,000.

16.5 Fees. If you commence arbitration in accordance with these Terms, TFG will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Manhattan County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TFG for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

16.6 No Class Actions. YOU AND TFG AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TFG agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

16.7 Modifications to this Arbitration Provision. If TFG makes any future change to this arbitration provision, other than a change to TFG's address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to TFG's address for Notice of Arbitration, in which case your account with TFG will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17.1 will govern any action arising out of or related to these Terms.

16.9 Opt Out.  Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying TFG in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to info@fingyms.com, stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and TFG will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.

17.    General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and TFG regarding your use of our Services. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to". If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
 

17.1 Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and TFG submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Manhattan County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate our Services from our offices in New York, and we make no representation that Materials included in our Services are appropriate or available for use in other locations.

17.2 Privacy Policy. Please read our Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The TFG Privacy Policy is incorporated by this reference into, and made a part of, these Terms. You acknowledge and agree that you have read our Privacy Policy and consent to the uses of your personal information described in our Privacy Policy.  If at any time you do not consent to those uses, you must immediately notify us at privacy@thefinancialgym.com.

17.3 Additional Terms. Your use of our Services is subject to all additional terms, policies, rules, or guidelines applicable to our Services or certain features of our Services that we may post on or link to from our Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

17.4 Consent to Electronic Communications. You agree that TFG may communicate with you electronically including via e-mail, video chat, and SMS text message regarding our Services. If TFG learns of a security system’s breach, TFG may attempt to notify you electronically by sending an email to you, if TFG has your email address. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to TFG at info@thefinancialgym.com. Depending on your current carrier plan, you may incur charges for SMS text messages, video chat, and e-mail and you agree not to hold TFG liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of TFG, and that TFG is not responsible for any failure of warranty by any such third party. TFG cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message or other electronic communication to you successfully. TFG has no liability for transmission delays or message failures.  Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

17.5 Contact Information. Our Services are offered by The Financial Gym, LLC, located at 226 5TH Ave, Suite #5, New York, NY 10001. You may contact us by sending correspondence to that address or by emailing us at info@thefinancialgym.com. You can access a copy of these Terms by clicking here:  

17.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding our Services or to receive further information regarding use of our Services.

17.7 No Support. We are under no obligation to provide support for our Services. In instances where we may offer support, the support will be subject to published policies.

 International Use. Our Services are intended for visitors located within the United States. We make no representation that our Services is appropriate or available for use outside of the United States. Access to our Services from countries or territories or by individuals where such access is illegal is prohibited.