Effective Date: May 12, 2023
Diversified Trading Institute (“DTI”, “we”, or “us”) provides its website, www.dtitrader.com, located at www.dtitrader.com (together with all other websites, mobile applications and services operated on behalf of dtitrader.com, the “Site”), to you, an individual user (“you”) for your individual usage, subject to your acceptance of, and compliance with, the terms and conditions set forth herein.
1. General Terms
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 17 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 17 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
By using the Site and agreeing to these Terms, you represent that you are at least the age of majority in your state/province/country of residence. If you use the Site, you are affirming that you have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
1.2 Updates to Terms
DTI reserves the right to update, change, or replace any part of these Terms by posting updates and/or changes to our Site. You can review the most current version of these Terms at any time by visiting https://dtitrader.com/terms-of-service-2/. It is your responsibility to check this page periodically for changes. Your continued use of, or access to, the Site following the posting of any changes constitutes your binding acceptance of those changes.
1.3 Privacy and Security Disclosure
1.4 No Investment Recommendations or Professional Advice
DTI, does not provide personalized investment advice. Neither the Site, nor any of DTI’s services, are intended to provide tax, legal, insurance or investment advice. None of the content provided on the Site or through any of DTI’s services should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any security by DTI or any third party. You alone are solely responsible for determining whether any investment, security or strategy, or any other product or service, is appropriate or suitable for you based on your investment objectives and personal and financial situation. You should consult a registered investment advisor, attorney, or tax professional regarding your particular financial situation, investing strategies, or specific legal or tax situation.
To the extent that any of the content published on the Site may be deemed to be investment advice or recommendations in connection with a particular security, such information is impersonal and not tailored to the investment needs of any specific person. You understand that an investment in any security is subject to a number of risks, and that discussions of any security published on the Site will not contain a list or description of relevant risk factors.
You understand that performance data is supplied by sources believed to be reasonable and reliable, that the calculations on our Site are made using such data, and as of July 2022, reviewed closely by an objective regulated third-party corporation. Such calculations are not guaranteed by these sources, the information providers, or any other person or entity.
From time to time, reference may be made on our Site to prior articles and opinions we have published. These references may be selective, may reference only a portion of an article or opinion, and are likely not to be current. As markets change continuously, previously published information and data may not be current and should not be relied upon.
All content on the Site is presented only as of the date published or indicated, and may be superseded by subsequent market events or for other reasons. In addition, you are responsible for setting the cache settings on your browser to ensure you are receiving the most recent data.
1.5 Securities & Investing Disclaimer
Stocks and options trading have large potential rewards, but also large potential risk. You must be aware of the risks and be willing to accept them in order to invest in the stocks and options markets. Don’t trade with money you can’t afford to lose. DTI, does not represent that any account will or is likely to achieve profits or losses similar to those discussed on the Site. The past performance of any trading system or methodology is not necessarily indicative of future results. All trades, patterns, charts, systems, etc., discussed on the Site are for illustrative purposes only and not to be construed as specific advisory recommendations. Information contained on the Site is intended for informational purposes only.
1.6 Intellectual Property
The Site and the content contained herein, as well as all copyrights, including without limitation, the text, documents, articles, products, software, graphics, photos, sounds, videos, interactive features, services, links, User Submissions (as defined below), third-party apps, and any other content on the Site (“Content”) and the trademarks, service marks and logos contained therein are the property of DTI, and its third-party licensors or providers. You may access and use the Content, and download and/or print out copies of any content from the Site, solely for your personal, non-commercial use. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You acknowledge that you do not acquire any ownership rights by using the Site. DTI, reserves all rights not expressly granted in and to the Site.
1.7 User Conduct
You may not use, copy, display, sell, license, de-compile, republish, upload, post, transmit, distribute, create derivative works or otherwise exploit Content from the Site to online bulletin boards, message boards, newsgroups, chat rooms, or in other any manner, without our prior written permission. Modification of the Content or use of the Content for any purpose other than your own personal, noncommercial use is a violation of our copyright and other proprietary rights, and can subject you to legal liability.
In addition, in connection with your use of the Site and its services, you agree not to:
- Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
- Use the Site for any unlawful purpose;
- Express or imply that any statements you make are endorsed by us, without our prior written consent;
- Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site;
- Disable, damage or alter the functioning or appearance of the Site, including the presentation of advertising;
- “Frame” or “mirror” any part of the Site without our prior written authorization;
- Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, “data mine,” “scrape,” “harvest” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;
- Harvest or collect information about visitors to the Site without their express consent;
- Send unsolicited or unauthorized advertisements, spam, chain letters, etc. to other users of the Site; or
- Transmit any Content which contains software viruses, or other harmful computer code, files or programs.
1.8 No Waiver
No waiver by DTI, of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by DTI, to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
1.9 No Agency Relationship
No joint venture, partnership, employment, or agency relationship exists between you and DTI, as a result of your receipt of any DTI, product, your use of any DTI, Service, or use of the Site.
You may only assign your personal access to membership accounts, according to DTI’s “Account Transfer Policy”. This policy only allows transfer of personal access to DTI, service of products. No other assignment or transfer is stated or implied. DTI, and its affiliates may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of DTI’s business is transferred to another entity by way of merger, sale of its assets or otherwise.
2. Premium Services
DTI offers a number of premium services such as our newsletters, market alerts, training modules, trading workshops, and software. To subscribe to these premium services, you will be required to provide your name, email address, billing address and credit card information. By subscribing to the premium service, you agree to pay the applicable subscription fee. Sales taxes may be charged in addition to the subscription fee.
2.1 Program Changes, Updates, Merges, and Terminations
DTI, may change, merge, alter, combine, or otherwise end or terminate any and all of its current program or service offering at any time and at its sole discretion. DTI, shall inform all affected members of any program changes. In the event of program terminations, DTI shall offer currently affected subscribers a reasonable opportunity of service satisfaction by switching them to another comparable program at the same subscription value.
Due to the nature of our Software and Course Products, periodic updates may be required for maintenance. Customers will be notified if and when updates to purchased software or courses are required. Failure to comply with the update requirements may result in the failure or malfunction of the software.
2.3 Account Registration
In order to access some of the services of the Site, you will be required to create an account. By creating this account you agree to the following:
- You may only maintain a single account;
- You may never share your account user name or password or knowingly provide or authorize access to your account (including without limitation, DTI’s Premium Subscription Services);
- You may never use another user’s account without permission;
- When creating your account, you must provide accurate and complete information;
- You are solely responsible for the activity that occurs on your account, and you must keep your account password secure;
- You must notify us immediately of any breach of security or unauthorized use of your account; and
- You will be liable for any use made of your account or password and the losses of DTI, or others due to such unauthorized use. We will not be liable for your losses caused by any unauthorized use of your account.
DTI, has the right, in its sole discretion, to cancel your subscription or suspend your access to the Site.
3. Billing Terms
3.1 Automatic Billing and Cancellation Policy
Some of DTI’s Premium Services are provided on a recurring subscription basis. Your subscription will automatically renew at the then-current rate, until you notify us of your decision to terminate your subscription and/or auto-renew billing cycle. Subscribers may request to turn off, cancel or forego the auto-renew billing cycle at any time during your subscription period without questions asked [which can be done by contacting Customer Service via https://dtitrader.com/contactdti/, firstname.lastname@example.org or call 855-201-1290]. Turning off the auto-renew billing feature will not affect the underlying subscription status, it will strictly prohibit the automated credit card transaction at a future date to renew the underlying subscription unless otherwise requested by the customer. Most subscription durations equal to one year or less may include auto-renewal billing, regardless of the offer under which that subscription started. Prior to billing you for the renewal term, DTI, will email the address that you have on file for your account about the length and price of the renewal term.
By allowing the renewal to proceed, you have provided your electronic authorization for future charges against the card that you have on file. You further agree that your subscription fee(s) will be billed automatically at the beginning of each renewal period at the then-current rate (plus sale tax, if applicable) to the credit card(s) you have on file. If you have more than one card on file, the first card will be used. If you have more than one credit card on file, and one or more credit cards has expired, we will use the unexpired credit card.
You may cancel your subscription(s) at any time prior to the renewal term. To cancel your membership, please contact support via https://dtitrader.com/contactdti/, email@example.com or call 855-201-1290.
3.2 Refund Policy
DTI’s Premium Services (and sometimes specific offers) have different refund policies, including some services for which there is no refund. Please review the specific terms for each particular service or offer prior to subscribing to that service/offer. By subscribing to a particular service or offer, you agree to be bound by the terms of the applicable return policy. Please contact Customer Service if you have any questions regarding whether you may receive a refund for a particular service or offer [via https://dtitrader.com/contactdti/, firstname.lastname@example.org or call 855-201-1290].
- Premium Products Services:
As of May 12, 2023, any purchase made on this date and after, Subscribers will have 14-days from the date of purchase to cancel their Premium Products and or services to receive a full refund or credit minus the cost of a physical premium item shipped to the subscriber (with the exception of Software products and service; see details below). Premium Products are priced at $250 and above regardless of subscription length or term. Due to the highly confidential and proprietary nature of offered Premium Products and Services, all subscription sales are final until end-of-term, except that Subscribers will have 14-days from the date of purchase to cancel their Premium Products and or Services to receive a full refund minus the cost of a physical premium item shipped to the subscriber.
1a. Tom Busby’s “Weekend Profits Club” program is an exception to the premium product refund policy above. In this program, Subscribers will be eligible to request a refund after twelve (12) consecutive months (“1 year”) after purchasing the premium product. The refund eligibility window for “Weekend Profits Club” is between 12-24 months from purchase date (after the 1st year of subscription, up to 2 years).
1b. Tom Busby’s “Everyday Income” and “Everyday Income Software (E.I. Software)” programs are exceptions to the premium product refund policy above. Buyers will be eligible to request a refund after 365 days (“1 year”) after purchasing the premium products. The refund eligibility window for this specifically mentioned program is 90 days after initial 1 year from purchase date (after the 1st year of subscription, up to 3 months; eligibility window is between months 13-15 after purchasing program.)
- Software/Course Products Services:
In addition to free content and paid memberships, DTI, provides trading softwares for purchase, which include indicators and other software elements that may be offered by DTI, (collectively, “Software” or “Course”). Due to the immediate and comprehensive delivery, proprietary code, and nature of our trading Software and/or Course products and services, Subscribers will have 7-days from date of purchase to cancel their Software or Course services. Software products are confidential and proprietary code that should not be duplicated or distributed outside of initial purchase from DTI, regardless of service status. This 7-day onboarding period from the purchase is provided in order to allow customers to review relevant training materials, complete installation of the software, confirm compatibility and establish required access to the service. A refund or credit may be issued within this 7-day grace period if the purchaser contacts the Customer Service team within the 7-day window [which can be done via https://dtitrader.com/contactdti/, email@example.com or call 855-201-1290.
- Standard Products Services:
Subscribers may take advantage of our money-back guarantee at any time on all products and services priced $249 and below. If for any reason the product is not a fit for you, you may contact Customer Service to request a full refund via https://dtitrader.com/contactdti/, firstname.lastname@example.org or call 855-201-1290.
- Class, Workshop, Seminars and Events Refund Policy:
DTI offers a variety of classes, workshops, seminars and events. Regardless if the event is held virtually or in-person, the subscriber may refund up to 14-days prior to the event date. Post event, no refunds will be issued. In the event of an unforeseen circumstance within this 14-day window (illness, death, emergency, natural catastrophe, etc), a credit will be issued toward an event in the future of equal value. To retrieve the credit to the subscriber account for future event or to inquire about any terms regarding events, please contact our sales department via 855-201-1290.
Diamond Club VIP Bundles
Diamond Club VIP Bundles are typically $5,000 USD or more and require a signed Agreement which is sent electronically via DocuSign by the Sales Manager. The bundle consists of all current products, future products, software, in-person/virtual training, workshops and summits as long as your subscription status if active. In addition to any other right to otherwise revoke an offer, you, the purchaser, may cancel the signed Agreement and receive a full refund up until midnight on the third business day after your receipt of the merchandise or premium, whichever is later, after which all sales are final. Because you will receive important program access immediately upon signing the Diamond Club VIP Agreement, the 3 business day cancel period begins on the date the Agreement was signed. To cancel (and/or request refund) within the time allowed, send an email request to email@example.com. NOTE: All Diamond Club VIP Bundles include a non-creditable annual maintenance fee due on the first anniversary and all subsequent anniversaries of the Effective Date of the Agreement to keep the membership active.
- Accessibility Post-Refund:
The refund and cancellation of products and services will result in the immediate loss of access to the materials on the member website. In addition, the loss of additional materials through email, SMS, and other correspondence. If for any reason you find that the product you have purchased is not a fit for you, after the eligible refund period, we will be happy to move you into another one of our available programs at equal or lesser value, without additional charge. If you have any additional questions or would like to request a refund, feel free to contact us using the contact methods supplied on our website.
3.3 Payment Methods
All charges are in U.S. Dollars. We accept U.S.-issued credit and debit cards from Visa, MasterCard, American Express, and Discover.
When placing an order online, you will need:
- The address the card’s statement is sent to (billing address);
- The card number and expiration date; and
- The 3 or 4-digit code found only on the card (CVV2 code).
By submitting credit card information or other payment information to us, you represent and agree that: (i) you are fully entitled to use that card or account; (ii) if you choose a subscription-based purchase, that you will pay all payments for your subscriptions by the date due; (iii) all payment information provided is complete and accurate; (iv) you will be responsible for any credit card fees; and (v) that sufficient funds exist to pay us the amount(s) due.
We and our third-party payment service providers may request, and we may receive, updated credit card information from your credit card issuer, such as updated card numbers and expiration date information when your credit card has expired. If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly, and will use such updated information to process payments for your subscription(s) if you signed up for subscription(s). Your credit card issuer may give you the right to opt-out of providing vendors and third-party payment service providers with your updated credit card information. If you wish to opt out of your credit card’s updating service, you should contact your credit card issuer.
We are not responsible for any fees or charges that your bank or credit card issuer may apply. If your bank or credit card issuer reverses a charge to your credit card, we may bill you directly and seek payment by another method including a mailed statement.
We do not accept the following forms of payment: Paypal, Gift Cards, Cryptocurrency, Checks, Wire, ACH, Vimeo, Zelle
Upon purchasing any programs or services from DTI, the billing descriptor that will appear on your credit card statement may reflect DTI, Superior Information or TradingPub billing name.
4.1 Electronic Communications
You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
4.2 SMS Policy
Information gathered in the SMS campaign will not be shared with Third Parties or Affiliates for Marketing Purposes.
- Domestic Phone Numbers (USA):
DTI, SMS Alerts for shortcode 41372. SMS sign-ups require the submission of a cellular number on a webform. Message frequency may vary. Reply HELP for help, STOP to quit. Msg & Data Rates May Apply.
DTI, SMS Trade Alerts for shortcode 41372. SMS trade alert sign ups require the submission of a cellular number on a webform and active subscription to the underlying trade alert service. Message frequency may vary. Reply HELP for help, STOP to quit. Msg & Data Rates May Apply.
NOTE: If you are subscribed to multiple trade alert programs. texting STOP to shortcode 41372 will remove cellular number from all SMS trade alerts, not just one particular program
Msg&DataRates May Apply. Compatible carriers include: AT&T, T-Mobile®, Verizon Wireless, Sprint, Boost, U.S. Cellular, Cellular One, MetroPCS, ACS Alaska, Bluegrass Cellular, Cellular One of Fast Central Illinois, Centennial Wireless, Cox Communications, EKN/Appalachian Wireless, GCI, Illinois Valley Cellular, Immix/Keystone Wireless, Inland Cellular, ex-Tech Wireless, Rural Cellular Corporation Thumb Cellular, United Wireless, WestCentral (WCC), Cellcom, Cellsouth, Cricket, Cincinnati Bell, and Virgin Mobile. T-Mobile® is not liable for delayed or undelivered messages.
To discontinue receiving SMS messages from DTI, Promo Alerts, text STOP to 41372. By doing so. you will be globally removed from all SMS promo alerts from DTI, and will have to re opt-in to receive future messages. For additional help. text HELP to 35669 or contact Support via https://dtitrader.com/contactdti/, firstname.lastname@example.org or call 855-201-1290.
To discontinue receiving SMS messages from DTI, Trade Alerts, text STOP to 41372. By doing so, you will be globally removed from all SMS trade alerts from DTI, and will have to re opt-in to receive future messages. If you are an active subscriber of multiple DTI, SMS trade alert programs, texting STOP to 41372 will remove you from ALL programs alerts. For additional help. text HELP to 41372 or contact Support via https://dtitrader.com/contactdti/, email@example.com or call 855-201-1290.
- SMS for International Phone Numbers (Outside USA):
Effective December 1, 2022, SMS trade alert messages for shortcode 41372 will no longer be deployed via SMS. Instead, premium service subscribers who opt-in for trade alert messages will be invited to a private app-based Telegram channel particular to the program they are actively enrolled in (in addition to email alerts and updates in the password-protected member area). To access the appropriate Telegram channel, contact Support via https://dtitrader.com/contactdti/, firstname.lastname@example.org or call 855-201-1290.
4.3 Social Media
This section applies to everyone who interacts with our social media presence, including comment sections, feeds, and other elements of social media presence viewable on Facebook, Instagram, Twitter, YouTube, Google+, LinkedIn, Telegram, Discord or any of the many other available external third party social media platforms we may utilize (“Social Media Presence”).
4.4 Testimonials, Reviews, and Other Submissions
DTI, may use personal testimonials, product/service review, or other forms of endorsement, in whole or in part, together with the first name of the person submitting it. Testimonials may be used for any form of advertising relating to DTI’s products or services, in printed and online media, as DTI, determines in its absolute discretion. Testimonials represent the unique experience of the person submitting the endorsement and do not necessarily reflect the experience that you may have using our products or services. You agree that any testimonial or product review that you provide DTI is true and accurate in all respects and does not infringe or interfere with the intellectual property rights of any third party.
Anything that you submit or post to the Website and/or provide us, including without limitation, photographs, testimonials, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, “Submissions”) is and will be treated as non-confidential and nonproprietary, and we shall have the royalty-free, worldwide, and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. You represent and warrant that you are the owner or have sufficient rights to share the Submissions with us. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.
Additionally, DTI, reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. DTI, shall be under no obligation to use any, or any part of, any testimonial, product/service review, or any other endorsement. If you submit any testimonial, product/service review, or other endorsement, you are confirming that you have read, understood and agree to these Terms. If you disagree with any part of these Terms, do not submit.
4.5 Third-Party Websites and Links
Our Site may include materials from third-parties or links to third-party websites. DTI, is not liable for any third-party materials or websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
4.6 Questions or Additional Information
If you have any questions regarding your account, subscription services, or these Terms, please email [email@example.com] for assistance.
5. Legal Terms
5.1 Copyright Notice
The Site maintains specific contact information provided below, including an e-mail address, for notifications of claimed infringement regarding materials posted to this Website. All notices should be addressed to the contact person specified below (our agent for notice of claimed infringement):
Notification of Claimed Infringement:
Compliance Dept: Copyright Agent
101 Marketside Ave, STE 404, PMB 318
Ponte Vedra, FL 32081
Agent’s Name: Amanda Walsh
Email Address: firstname.lastname@example.org
You may contact our agent for notice of claimed infringement specified above with complaints regarding allegedly infringing posted material and we will investigate those complaints. If the posted material is believed in good faith by us to violate any applicable law, we will remove or disable access to any such material, and we will notify the posting party that the material has been blocked or removed.
In notifying us of alleged copyright infringement, the Digital Millennium Copyright Act requires that you include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf. Failure to include all of the above-listed information may result in the delay of the processing of your complaint.
5.2 DISCLAIMER OF WARRANTIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE OR OUR PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.3 DISCLAIMER OF LIABILITIES
5.4 Dispute Resolution by Mandatory Binding Arbitration and Class Action Waiver
PLEASE READ THIS ARBITRATION AND CLASS ACTION WAIVER PROVISION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DTI, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.
Notwithstanding anything to the contrary herein, (a) a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Completion Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) must be arbitrated on a class basis, (b) in the event that the foregoing clause is deemed invalid or unenforceable, a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Completion Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) may be brought in the state or federal courts located in Florida on a class basis, and (c) any claims other than for public injunctive relief must be arbitrated on an individual, non-class basis as otherwise set forth in this Section.
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and DTI, both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. DTI, will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in FORUM: (i) an action by DTI, relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents; or (ii) an action by DTI, for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in FORUM, and forever waive any challenge to said courts’ jurisdiction and venue.
- Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by U.S. Mail to DTI, Attn: Legal Department, 101 Marketside Ave, STE 404, PMB 318, Ponte Vedra, FL 32081. DTI will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with DTI, or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60-days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in FORUM to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “b” above. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions.
- Commencing Arbitration
You and DTI, agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
- Arbitration Location
If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in the State of Florida unless DTI, otherwise agrees to arbitrate in another forum requested by you.
- Organization, Rules and the Arbitrator
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules.
- Governing Law and Award
The arbitrator shall follow the substantive law of the State of Florida without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This provision survives termination of your account or relationship with DTI, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and DTI, and shall not be modified except in writing by DTI.
DTI, reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a DTI, product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, DTI, will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a DTI, product or service, is affirmation of your consent to such material changes.
YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN FOURTEEN (14) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US AT DTI, ATTN: LEGAL DEPARTMENT, ADDRESS. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 14 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT. IF MORE THAN FOURTEEN (14) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1,000.00.
To the fullest extent permitted by law, you agree to indemnify, defend, and hold harmless DTI, its affiliates (including without limitation all affiliated professional entities), subsidiaries, and their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys from and against any claims, actions, losses, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from, or in any way connected with or related to (1) your breach of these Terms, the documents they incorporate by reference, or the Agreement; (2) your breach of any representations or warranties in this Agreement; or (3) your violation of any law or the rights of a third-party.
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms. Such determination shall not affect the validity and enforceability of any other remaining provisions.
In the event that we terminate this Agreement, as well as any representations, warranties, and other obligations made or taken by you, shall survive the termination of this Agreement.
6. Entire Agreement
These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and Amplify, and supersedes and replaces any prior or contemporaneous agreements. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.