Terms of Use
Effective Date: November 15, 2024
IMPORTANT NOTICE: THESE TERMS contain a binding arbitration provision and class action waiver that apply to all claims brought against RAD SHYT LABS LLC. THEY affect your legal rights as detailed in the DISPUTE RESOLUTION, binding ARBITRATION, AND CLASS ACTION WAIVER section below. By USING THE SERVICES, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPT THESE TERMS AND agree to be bound by THEM, INCLUDING THE DISPUTE RESOLUTION, binding ARBITRATION, AND CLASS ACTION WAIVER section. PLEASE READ IT CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SERVICES.
These Terms of Use (“Terms”) are a legal agreement between you and RAD SHYT LABS LLC (“RAD SHYT LABS LLC,” “we,” “us,” or “our”) that governs your use of the RAD SHYT LABS LLC website (located at www.radshyt.com) and any related services or products operated, sold, or otherwise provided by RAD SHYT LABS LLC (collectively, the “Services”). Any new or additional features, tools, services, products, or content that are added to the Services will also be subject to these Terms.
ELIGIBILITY
The Services are available only to users who can form legally binding contracts under applicable law. By accessing or using the Services, you represent that you are at least eighteen (18) years of age, or over the age of majority in the state or country where you are a resident or citizen. If you are under the age of majority in your state or country and you wish to use the Services, please ask your parent or guardian to create an Account using your parent or guardian’s name and other personal information, and do not provide your personal information on the Services.
REGISTERING WITH US
Access to and use of certain functionalities of the Services may require you to register for a user account (“Account”) with us. If you decide to register an Account with us, you will create a user ID and password to access your Account. You agree to provide us with accurate, complete and current information about yourself during Account registration and at all other times, and you agree to update all information provided to us or requested by us if, and as soon as, such information changes and before you make any purchase related to the Services. You agree to keep your log-in information confidential and to not authorize any third party to use your Account. We will not be liable for any loss or damage that results from the unauthorized use of your Account, either with or without your knowledge. You are fully responsible for your failure to safeguard information or for permitting any other person to access or use the Services via your Account, and you agree that we may attribute all use of your Account to you. You agree to notify us immediately at using the contact information provided in Section 20 if you suspect any unauthorized use of your Account or any other breach of security. You may not sell or otherwise transfer your Account. We have the right to cancel or suspend your Account or registration for any reason or for no reason at any time, as determined in our sole discretion.
ORDERS; THIRD-PARTY PAYMENT SERVICE PROVIDERS; SHIPPING
You may order our products via the Services. All sales of products are final. Subject to our Return Policy and Cancel Order Policy, which is incorporated by reference into these Terms, once you have purchased the products there are no cancellations, returns, or exchanges except as provided under applicable law. We reserve the right to refuse any product returns at any time. Shopify Inc. (“Shopify”) provides RAD SHYT LABS LLC with the online e-commerce platform that allows us to sell our products and services to you. RAD SHYT LABS LLC also uses Shop.app, Apple Pay, Google Pay, PayPal, Inc. and other services or parties from time-to-time as third-party service providers for payment services (e.g., credit card transaction processing, merchant settlement, and related services) (together with Shopify, the “Third-Party Payment Services Providers”). By using the Services, you agree to be bound by the Third-Party Payment Services Providers’ terms of use. You hereby consent to provide and authorize RAD SHYT LABS LLC and the Third-Party Payment Services Providers to use and disclose any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with the Terms, including personal, financial, credit card payment, and transaction information.
You may have a limited amount of time to purchase the products. We offer a limited number of each item and do not guarantee product replenishment. We will fulfill orders in the order they are received, and therefore products may sell out before your order for such product is fully processed. In the event that we cannot fully process your order due to such lack of products, we will refund the fees you paid for the unavailable product to your payment card.
Please make sure that you have entered the correct and matching shipping and billing addresses, as it is crucial for your order to be processed and shipped in a timely manner. We will send you a tracking confirmation as soon as your order is dispatched. All shipments are insured and you assume all responsibility for claims made with the shipping carrier. All taxes and duties for international orders are your responsibility.
PERMITTED USE
All information, materials, and other digital content available through the Services (collectively, the “Content”) are for the personal use and enjoyment of individual users only and may not be used in connection with any commercial endeavors. The Content is the sole and exclusive property of RAD SHYT LABS LLC or its licensors. Subject to your compliance with these Terms, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services, and to access, use, and view any Content, solely for your personal purposes. Except for the limited rights set forth in this Section, you may not copy, sell, rent, distribute, modify, publicly perform, publicly display, transfer, create derivative works of, or sublicense the Services or Content.
OWNERSHIP AND INTELLECTUAL PROPERTY
The Services and Content are protected by copyright, trademark, patent, and other intellectual property and proprietary right laws. All title, ownership rights, and intellectual property rights in and to the Content and Services are owned by us or our licensors. All rights are reserved. The Services and Content may contain certain licensed materials, and our licensors may protect their rights in the event of any violation of these Terms.
All trademarks, service marks, logos, trade names, and any other proprietary designations of RAD SHYT LABS LLC used herein are trademarks or registered trademarks of RAD SHYT LABS LLC or our suppliers. You may not use any of our trademarks, logos, or trade dress in connection with any product or service that is not owned or provided by us, in manner that is likely to cause confusion among customers or users, or in any manner that disparages us or our suppliers.
USER GENERATED CONTENT
You may be able to post, submit, publish, or display content, or transmit content from your Account (hereinafter, “post”) on the Services (collectively, “User Contributions”). You are solely responsible for the User Contributions that you post via the Services, including its legality, reliability, accuracy, and appropriateness. RAD SHYT LABS LLC is not responsible or liable for the content or accuracy of any User Contributions posted by you or any other member of the Services.
By posting User Contributions to any public area of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to RAD SHYT LABS LLC an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.
RAD SHYT LABS LLC is not obligated to review, monitor, delete, or edit postings. However, RAD SHYT LABS LLC reserves the right to do so at any time in its sole discretion, for any reason or no reason, and to delete or edit any User Contributions that are objectionable, offensive, illegal, or in violation of these Terms with or without notice. You agree that you have no recourse against RAD SHYT LABS LLC if we refuse to post, or if we delete or refuse to delete, any User Contributions by you or other Services users.
The content standards set out below apply to any and all User Contributions. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, you agree that you will not:
Post or deliver any unsolicited advertisement, promotional materials, junk email, bulk email (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes, without our express prior written consent. The number of postings by any member is subject to reasonable limits at the discretion of RAD SHYT LABS LLC;
Post or deliver any advertisement or solicitation via the Services to buy or sell any products or services, or engage in commercial activities and/or sales, without our prior written consent;
Post or deliver, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, tortuous, harassing, hateful or otherwise objectionable;
Post or deliver, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of medical condition, religion, race, ethnicity, sexual orientation, gender, age, or disability;
Post or deliver, or provide links to, any postings containing defamatory, false or libelous material;
Post or deliver information that you know is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
Post or deliver any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or right of publicity;
Post or deliver any posting that you do not have a right to make available under law or contractual or fiduciary relationships;
Post or deliver information that violates our community guidelines;
Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another;
Manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you deliver;
Use the Services or Content in any manner which could damage, disable, overburden, or impair or otherwise interfere with the other users’ computer equipment, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment;
Attempt to gain unauthorized access to the Services, any related website, other accounts, computer system, or networks connected to the Services, through hacking, password mining, or any other means; or
Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services, including harvesting or otherwise collecting information about others such as email addresses.
We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Services, terminating the Account of such violators, or taking further legal action.
USER FEEDBACK
By submitting any ideas, feedback, or suggestions (“Feedback”) to us through the Services or other means, you acknowledge and agree that: (i) your Feedback does not contain confidential or proprietary information of you or any third party; (ii) we are not under any obligations of confidentiality with respect to the Feedback; (iii) we may freely use, reproduce, distribute, and otherwise exploit the Feedback for any purpose; and (iv) you are not entitled to any compensation of any kind from us.
LINKS TO OTHER WEBSITES AND SERVICES
The Services may also link to or reference other websites and services (“Linked Services”). Linked Services are not under the control of RAD SHYT LABS LLC and RAD SHYT LABS LLC is not responsible for Linked Services, or for any information or materials on, or any form of transmission received from, any Linked Service. The inclusion of a link does not imply endorsement by RAD SHYT LABS LLC of the Linked Services or any association with the operators of the Linked Services. RAD SHYT LABS LLC does not investigate, verify or monitor the Linked Services. RAD SHYT LABS LLC provides links to Linked Services for your convenience only. You access Linked Services at your own risk.
PRIVACY NOTICE
Please refer to our Privacy Notice (which is incorporated into and made part of these Terms) to understand our practices and policies related to the collection, use, and storage of information about users of the Services, including your Account information. You acknowledge and agree that you are solely responsible for the accuracy and content of your personal information.
REFERRALS
You will have the opportunity to refer friends and family to the Services. You must only refer friends and family who give you permission to share their information with us. The collection, use, and storage of information about referred parties are also subject to the practices and policies described in our Privacy Notice.
DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. RAD SHYT LABS LLC MAKES NO REPRESENTATIONS, WARRANTY OR GUARANTEE OF THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR CONTENT. THE SERVICES AND CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT OR ANY OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES DOES NOT CONSTITUTE ADVICE OF ANY KIND AND SHOULD NOT BE RELIED UPON IN ANY WAY. RAD SHYT LABS LLC IS NOT LIABLE FOR ANY OMISSIONS OR ERRORS OF THE SERVICES OR CONTENT. UNDER NO CIRCUMSTANCES WILL RAD SHYT LABS LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU OR A THIRD PARTY.
LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL RAD SHYT LABS LLC OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AGENTS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE TO YOU UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, IN CONNECTION WITH ANY CONTENT ON THE SERVICES OR YOUR USE OR MISUSE OF THE SERVICES, INCLUDING FOR ANY: (I) LOSSES OR DAMAGES RELATED TO PERSONAL INJURY OR LOSS OF LIFE ARISING FROM USE OR MISUSE OF THE SERVICES OR CONTENT, OR (II) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
IN NO EVENT WILL RAD SHYT LABS LLC’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIVE U.S. DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION
You agree to indemnify and hold harmless RAD SHYT LABS LLC and its officers, directors, employees, subsidiaries, agents, affiliates and other partners from and against any and all third-party claims, actions, demands, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees, resulting from your breach of any provision of these Terms.
DISPUTE RESOLUTION, BINDING ARBITRATION, AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.
As detailed herein, these Terms mandate that all disputes between you and RAD SHYT LABS LLC be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms further mandate that all disputes (except those identified below in “Exceptions to Arbitration”) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of this section carefully as it may significantly affect your legal rights.
14.1 / Informal Dispute Resolution
For any and all disputes between you and RAD SHYT LABS LLC, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against you in arbitration.
To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against RAD SHYT LABS LLC that you initiate, you agree to send to RAD SHYT LABS LLC (a) a written description of the dispute and (b) the email address(es) associated with your account through the following email address: jenna@radshyt.com. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that RAD SHYT LABS LLC initiates, we will send our written description of the dispute to the email address associated with your use of the Services.
If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, you and RAD SHYT LABS LLC agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.
A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
14.2 / Binding Arbitration
After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process, and only if those efforts fail, then either party may initiate arbitration as set forth in this Section.
If you determine to initiate arbitration, a copy of the arbitration demand must be emailed to jenna@radshyt.com. If RAD SHYT LABS LLC is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of the RAD SHYT LABS LLC Services.
Mutual Arbitration Agreement
Except as set forth in “Exceptions to Arbitration” below, you and RAD SHYT LABS LLC agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms—including but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section, “Binding Arbitration” (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section, “Binding Arbitration.”
This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in the Sections “30-Day Right to Opt Out” and “Changes to this Section.”
This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and RAD SHYT LABS LLC expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in “Class Arbitration and Collective Relief Waiver” below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
WAIVER OF RIGHTS INCLUDING JURY TRIAL
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND RAD SHYT LABS LLC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER
YOU AND RAD SHYT LABS LLC ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION, “BINDING ARBITRATION,” AND THE SECTION “NO CLASS OR CONSOLIDATED ARBITRATION ABSENT WRITTEN CONSENT” BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF RAD SHYT LABS LLC PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this Section, or that the provisions in this Section, “Binding Arbitration,” are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or RAD SHYT LABS LLC from participating in a class-wide settlement of claims.
Arbitration Location
If you are a resident of the United States, arbitration will take place in the county where you reside. For residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in Orange County, California, USA, unless you and RAD SHYT LABS LLC otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.
For any arbitration conducted in Orange County, California, USA, you and RAD SHYT LABS LLC agree to submit to the personal jurisdiction of any federal or state court in Orange County, California, USA in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Arbitration Rules
The Provider
The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.
Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.
You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section, “Dispute Resolution, Binding Arbitration, and Class Action Waiver,” while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
Arbitration Demand Must Contain Sufficient Information
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms.
Arbitration Conducted on Papers in Some Circumstances
If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents that you and RAD SHYT LABS LLC submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Dispositive Motions
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
Batching
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with the Section, “The Provider,” if NAM is unavailable) against RAD SHYT LABS LLC within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with the Section, “The Provider,” if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by RAD SHYT LABS LLC and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.
You agree to cooperate in good faith with RAD SHYT LABS LLC and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.
This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.
No Class or Consolidated Arbitration Absent Written Consent
Unless RAD SHYT LABS LLC otherwise consents in writing, which it may do on a case-by-case basis, RAD SHYT LABS LLC does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in the Section, “Class Arbitration and Collective Relief Waiver,” and this Section, “No Class or Consolidated Arbitration Absent Written Consent.”
Arbitration Award
The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the Section “Class Arbitration and Collective Relief Waiver,” above, and also must be consistent with the terms of the “Limitation of Liability and Exclusion of Certain Damages” section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
14.3 / Exceptions to Arbitration
Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in the Section, “Binding Arbitration:”
IP Disputes
Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in Orange County, California, USA.
Small Claims Court and Statutes of Limitation
Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.
Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.
Jurisdiction/Service of Process
For any dispute not subject to arbitration under this Section, “Dispute Resolution, Binding Arbitration, and Class Action Waiver,” you and RAD SHYT LABS LLC agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Orange County, California, USA. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
14.4 / 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out to the following address: jenna@radshyt.com. The notice must be sent within 30 days of Nov 15, 2024 or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of the Section, “Binding Arbitration.” If you opt-out of the arbitration provisions, RAD SHYT LABS LLC also will not be bound by them.
If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If RAD SHYT LABS LLC changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice as described in this Section, “30-Day Right to Opt Out.”
RAD SHYT LABS LLC will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and RAD SHYT LABS LLC.
14.5 / Changes to this Section
RAD SHYT LABS LLC will provide 30 days’ notice of the date of any material changes to this Section, “Dispute Resolution, Binding Arbitration, and Class Action Waiver.” Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which RAD SHYT LABS LLC does not have actual notice are subject to the revised clause.
GOVERNING LAW
These Terms will be governed by and construed in accordance with the laws of the state of California, USA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. You and RAD SHYT LABS LLC each agree to exclusive jurisdiction and venue in the state and federal courts located in Orange County, California, USA.
CHANGES TO TERMS
We reserve the right to modify these Terms and will notify you of material modifications in accordance with applicable law, which may include by posting updated Terms on the Services, sending you an email to your account email, or by other reasonable means. You will continue to be bound by the Terms you initially accepted until your acceptance of any modified Terms. You may be required to accept modified Terms to continue use of the Services.
TERMINATION
You may terminate your use of the Services at any time. We may terminate, change, suspend or discontinue any aspect of the Services at any time. We may, in our sole and absolute discretion and without liability, take whatever action we deem necessary to preserve the integrity of the Services and Content. Violation of any of these Terms may result in actions being taken by us, effective immediately or at a time determined by us, which may include without limitation: (i) temporarily suspending your access to the Services, or (ii) permanently terminating your access to the Services. Without limiting the foregoing, we retain the right to decline to provide the Services to any user who violates these Terms, applicable law, or our Privacy Policy.
Termination will not limit any of RAD SHYT LABS LLC’s rights or remedies. Section 5 (Ownership and Intellectual Property), Section 7 (User Feedback), Section 11 (Disclaimer of Warranties), Section 12 (Limitation of Liability and Exclusion of Certain Damages), Section 13(Indemnification), Section 14 (Dispute Resolution, Binding Arbitration, and Class Action Waiver), Section 15 (Governing Law), Section 19 (General Terms), and any other provision that, by its nature, is intended to survive termination shall survive termination of these Terms.
INTERNATIONAL USE
Please be aware that we are headquartered in the United States and that the Services and Content are governed by United States law. If you are using the Services or accessing the Content from outside of the United States, your information may be transferred to, stored, and processed in the United States where our servers may be located. See our Privacy Notice for more information.
RAD SHYT LABS LLC makes no representation that the Services or Content are appropriate or available for use in locations outside of the United States, and access to the Services or Content from territories where such Services or Content is illegal is prohibited. Those who choose to access the Services and Content from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Services or Content in violation of United States export laws and regulations.
If you use the Services or access the Content outside of the United States you, (i) consent to the transfer, storage, and processing of your information to and in the United States; (ii) will not access or use the Services or Content if you are on the United States Treasury Department’s “Specially Designated Nationals and Blocked Persons List,” or are located in a country embargoed by the United States; and (iii) agree to comply with all local laws, rules, and regulations including all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject RAD SHYT LABS LLC to any registration requirement within such jurisdiction or country.
GENERAL TERMS
If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. You and RAD SHYT LABS LLC intend that the provisions of these Terms be enforced to the fullest extent permitted by applicable law. Accordingly, you and RAD SHYT LABS LLC agree that if any provision of these Terms is deemed unenforceable, where possible, it will be modified to the extent necessary to make it enforceable, which may include its deletion. Section titles are for convenience only and have no legal or contractual significance. RAD SHYT LABS LLC may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign these Terms or assign, transfer, or sublicense any rights or delegate any duties hereunder. RAD SHYT LABS LLC’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. A waiver will only be binding on RAD SHYT LABS LLC if it is in a written document signed by RAD SHYT LABS LLC. Both you and RAD SHYT LABS LLC warrant to each other that, in entering these Terms, neither RAD SHYT LABS LLC nor you have relied on, or will have any right or remedy based upon, any statement, representation, warranty, or assurance other than those expressly stated in these Terms. The preceding sentence will not limit or exclude any liability that cannot be limited or excluded under applicable law. No one other than you and RAD SHYT LABS LLC, or RAD SHYT LABS LLC’s successors and permitted assigns, will have any right to enforce any of these Terms.
Electronic Communications:
You agree to receive electronic communications from us. These communications may include notices about your Account and information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and will have full legal effect.
You also agree that any transaction or agreement undertaken on or through the Services, including your agreement to these Terms, is an electronic transaction or agreement.
SMS Messages:
If you elect to receive marketing text messages from RAD SHYT LABS LLC, either via our website or by sending a text message indicating your consent, you are providing your prior express written consent to receive recurring marketing or promotional text messages from us (each, a “Text Message”), including without limitation Text Messages sent through an automatic telephone dialing system, at the telephone number associated with your consent. These may include cart abandon messages. Message frequency varies. This service is optional and is not a condition for purchase. You can opt-out by texting STOP to 25142, or for help, reply HELP. In addition to any fee of which you are notified, your mobile provider’s message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we or our affiliates be responsible for any charges incurred by you or by a person that has access to your wireless device or telephone number in connection with Text Messages. If your carrier does not permit Text Messages, you may not receive the Text Messages. Neither we nor the wireless carriers (such as T-Mobile) will be liable for any delays in the receipt of, or failure to deliver, any Text Messages, as delivery is subject to effective transmission from your network operator. Text Message services are provided on an “AS IS” basis. Data obtained from you in connection with any Text Message services may include your cell phone number, your provider’s name and the date, time and content of your text messages. We may use this information in accordance with our Privacy Policy.
CONTACT INFORMATION
If you have any questions, please contact RAD SHYT LABS LLC at:
Email: jenna@radshyt.com