Terms & Conditions

Last Revised: January 21, 2024

1. These Terms of Service (hereinafter referred to as the “Terms”) set forth the terms that apply to you related to your use of ZOZOFIT (hereinafter referred to as the “Service”) provided by ZOZO APPAREL USA, Inc. (hereinafter referred to as “ZOZO” or “we” or “our” or “us”).

2. Please read these Terms carefully before using the Service. You must fully understand and agree to these Terms. By using the Service on any computer, mobile phone, tablet, console or other device, you signify that you have read and fully understand and agree to be bound by all of these Terms and any other applicable law.

3. You understand the handling of personal information (including your personal information and important information about privacy) obtained by us in connection with your use of the Service will be in accordance with the “Privacy Policy”. Further, in order to use the Service, you must comply with these Terms. Your continued use of the Service shall be considered your acceptance of the revised Terms. If you do not agree to these Terms, please do not use the Service.

4. Certain features of the Service may be subject to additional guidelines, terms, or rules (“Supplemental Terms”). All applicable Supplemental Terms are incorporated by reference in these Terms. If there is an inconsistency between these Terms and any Supplemental Term, the Supplemental Terms will control solely with respect to such features.

5. SECTION 16 (ARBITRATION AGREEMENT) OF THESE TERMS CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND ZOZO WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE PRIOR TO THE “LAST UPDATED DATE” AT THE TOP OF THIS AGREEMENT. AMONG OTHER THINGS, SECTION 16 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND ZOZO BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.

6. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 15) WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU ENTERED INTO THIS AGREEMENT IN ACCORDANCE WITH SECTION 16.10 (30-DAY RIGHT TO OPT OUT): (1) YOU AND ZOZO WILL BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU AND ZOZO ARE WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

Article 2 Definitions

The capitalized terms used herein shall have the following meanings:

Article 3 Membership Registration

1. We reserve the right to refuse to approve your membership registration application if any of the following matters are true. If any of the following matters arise after the completion of your membership registration, we may, without any prior notification, suspend your use of the Service, delete your account, or take other measures that we deem appropriate.

2. We have no obligation to notify you if your registration application has been denied. Your membership registration application for the Service shall be deemed to have been approved when the registration screen moves on to the next screen.

3. Members shall use their best efforts to prevent unauthorized uses of their Login Information and shall be responsible for its management and fully liable for any misuse.

4. Any time the Login Information is used to access the Service, we shall deem that it was used by the Member who registered such Login Information. We shall have no responsibility and we assume no liability for damages of any kind incurred by the Member due to unauthorized uses and other incidents arising from the use of such Login Information.

5. If any or all of the Member’s information registered to the Service has changed, the Member must immediately change the registered information. We shall have no responsibility and we assume no liability for damages of any kind incurred by the Member for failing to update the information.

Article 4 Functions of the Service

1. You may use the following functions provided by the Service:

2. We may offer one or more mobile message programs (collectively, the “Message Service”) that allows users to receive SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by these Terms. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include reminders, marketing and promotional messages that may contain coupons and special offers.. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at support@zozofit.com. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to the Message Service will be governed by Section 16 (Arbitration Agreement).

3. When using the Service on mobile devices, your carrier’s normal rates and fees may apply. Not all services or features will work with all carriers or devices. By using the Service, you agree that we may communicate with you by electronic means to your mobile device and that certain information about your use of the Services may be shared with us.

4. You acknowledge and agree that the availability of the ZOZOFIT app and the Services is dependent on the third party from whom you received the application license, e.g., Apple App Store or Google Play, (each, an “App Store”). You acknowledge that the Terms are concluded between you and us and not with the App Store. We, not the App Store, are solely responsible for the Services, including the ZOZOFIT app, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all Fees or other In-App Purchases (if any) charged by the App Store in connection with the Services, including the ZOZOFIT application. You agree to comply with, and your license to use the application is conditioned upon your compliance with all terms of use agreement imposed by the applicable App Store when using any Service, including the ZOZOFIT application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

Article 5 Service Plans; Billing and Cancellation

1. You can use the Service under either the Suits Plan or the No Suits Plan:

(1) Suits Plan: Under the Suits Plan, you will have unlimited access to the Service only after purchasing a ZOZOSUIT. The fee payable by you (the “Fee”) for the ZOZOSUIT and unlimited access to the Service under the Suits Plan will be $199 but this amount is subject to change at any time with 30 days’ notice. If you have already purchased a ZOZOSUIT and are using the Service at no charge as of January 21, 2024, you may continue using the Service at no charge. However, if you switch to the No Suits Plan at any time, you will no longer be entitled to use the Service at no charge from that point on, even if you subsequently switch back to the Suits Plan, unless you make a separate ZOZOSUIT purchase.

(2) No Suits Plan: Under the No Suits Plan, you may access the Service without purchasing a ZOZOSUIT. The measurements obtained through this No Suits Plan, may not be as accurate as those obtained through the Suits Plan due to the fact that you are not using a ZOZOSUIT. The Fee under the No Suits Plan will be $14.99 for 1 month or $29.99 for 3 months but these amounts are subject to change at any time with 30 days’ notice.

2. If you subscribe to the Suits Plan or the No Suits Plan, or make any other purchases within the Service (individually, an “In-App Purchase” and collectively, “In-App Purchases”), you acknowledge and agree: (a) to pay all fees or charges associated with such In-App Purchases in accordance with any and all applicable terms whether imposed by us or the App Store at the time a fee or charge is due and payable; (b) to provide accurate, current and complete payment information in connection with such In-App Purchases; (c) that we may retain any such payment information, including, but not limited to all debit and credit card information provided in connection with any In-App Purchase; and (d) that you will be charged for all fees and charges due and payable for any In-App Purchases hereunder and that no additional notice or consent is required to use the payment information you provide. You agree to keep your payment information up to date. We accept certain credit cards as well as other forms of cash payment (e.g., PayPal) that are accepted by the App Store as payment methods for In-App Purchases.

3. Your ZOZOFIT subscription will continue and automatically renew for the same length as the previous term until canceled in accordance with these Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at our then- current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription before your Renewal Commencement Date.

4. You may cancel your ZOZOFIT subscription at any time and you may continue to use the Service through the end of the then-current billing period. You must cancel your ZOZOFIT subscription in accordance with these Terms before it renews in order to avoid biling of the Fee for the next billing cycle. To cancel, go to the “Account” section of your profile page in the ZOZOFIT app and follow the instructions for cancellation. If you encounter any problems canceling through the ZOZOFIT app, please send an email requesting cancellation to support@zozofit.com (Customer Service Division). If you cancel your subscription, your account will automatically close at the end of your current billing period. If you signed up for the Service using your account with a third party and wish to cancel your ZOZOFIT subscription, you may need to do so through such third party by, for example, visiting your account with the applicable third party and turning off auto-renew or unsubscribing from the Service through that third party.

5. Any Fee will be charged as an In-App Purchase. In-App Purchases, including the Fee and any other charges you may incur in connection therewith, such as taxes and transaction fees, will be charged as an In-App Purchase on the specific payment date indicated on the “Account” page. The length of your billing cycle will depend on the type of subscription that you choose when you sign up for the Service.

6. We may change the Fee from time to time but no such change will apply with less than 30 days’ written notice to you. If you do not wish to accept such change, you may cancel your membership before the change takes effect and continue to use the Service through the end of your then-current subscription period.

7. All payments are nonrefundable and no refunds or credits will be provided for partially-used membership periods. However, when you cancel your subscription, you will be able to continue to use the Service through the end of the then-current subscription period.

8. Any free trial or other promotion that provides a user with access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact us to have the charges reversed.

9. We may use Shopify, Inc. (“Shopify”) as a third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) outside of the App Stores. By subscribing to any Service, you agree to be bound by Shopify’s Privacy Policy: https://www.shopify.com/legal/privacy and hereby consent and authorize us and Shopify to share any information and payment instructions you provide with one or more third party service provider(s) to the minimum extent required to complete your transactions.

Article 6 Prohibited Acts

1. You shall not engage in any of the following acts, or acts that may lead to such acts:

Article 7 Changes in Functions and Suspension or Discontinuation of the Service

1. We may change all or part of the Service at our discretion.

2. We may suspend or discontinue the provision of all or part of the functions of the Service without prior notice to Members in any of the following cases:

Article 8 Termination of the Service

1. We may terminate all or part of the Service at our discretion.

2. If the Service is terminated in its entirety, or Members terminate the use of the Service, these Terms shall cease to be effective. However, Article 6.2, this Article, and Articles 9 through 16 shall survive the termination indefinitely.

Article 9 Intellectual Property

1. We shall be the exclusive worldwide owner of all intellectual property rights related to the Service, which shall include all materials protected by copyright, trademark, or patent laws. All trademarks, service marks and trade names are owned, registered and/or licensed by us. Nothing in these Terms shall be interpreted as granting any license of intellectual property rights to you.

2. You shall only have the right to use the Service legally and effectively for your own non-commercial use. You agree not to change or delete any ownership notices from materials downloaded or exported from the Service. You agree not to modify, copy, translate, display, reproduce, republish, transmit or sell any of our intellectual property without our prior written consent. You agree not to use any data mining, robots, scraping or similar data gathering methods.

3. When you use the Service, including a ZOZOSUIT, you may submit data and information to us and we may collect certain information or data about you and your use of the Service (collectively, “Data”). You grant us a non-exclusive, royalty-free, worldwide, perpetual, right and license to use such Data to provide the Service to you, and on a de-identified aggregated basis, to use the Data for our internal business purposes, including for purposes of improving the Service, and any algorithms or machine learning models used to provide the Service.

Article 10 Disclaimers

1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR USE OF THE ZOZOSUIT, IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ZOZO, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, AND LICENSORS (COLLECTIVELY, “ZOZO PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. THE ZOZO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THAT DEFECTS WILL BE CORRECTED; (D) THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (E) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (F) THE SERVICE WILL IMPROVE YOUR HEALTH OR IDENTIFY AND PREVENT ANY OR ALL INSTANCES OF HARM OR INJURY. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ZOZO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICE. NOTE THAT THE SERVICE IS NOT INTENDED TO REPLACE THE ADVICE OR SERVICES OF A LICENSED OR OTHER TRAINED MEDICAL OR OTHER PROFESSIONAL. THE ZOZO PARTIES DO NOT (1) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR RESOURCES PROVIDED WITHIN, OR IN CONNECTION WITH, THE SERVICES, INCLUDING WITH RESPECT TO THE MEASUREMENTS PROVIDED TO YOU; OR (2) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION OR DATA, INCLUDING ANY MEASUREMENT DATA. UNDER NO CIRCUMSTANCES WILL THE ZOZO PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION OR RESOURCES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZOZO OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

2. Without limiting the generality of the foregoing:

Article 11 LIMITATION OF LIABILITY

WE WILL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE OR THE CONDUCT OF OTHER MEMBERS (WHETHER ONLINE OR OFFLINE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE. YOUR ONLY REMEDY AGAINST US FOR USE OF THE SERVICE IS TO STOP USING THE SERVICE. IF YOU INCUR DAMAGES CAUSED BY OR IN CONNECTION WITH THE SERVICE DUE TO REASONS ATTRIBUTABLE TO US, WE WILL NOT BE LIABLE UNLESS FOUND TO HAVE ENGAGED IN WILLFUL MISCONDUCT OR GROSS NEGLIGENCE AND IN NO EVENT SHALL OUR LIABILITY EXCEED THE GREATER OF (A) US$10.00 AND (B) THE TOTAL AMOUNT YOU HAVE PAID TO US IN CONNECTION WITH THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Article 12 Exclusion of Anti-Social Forces

1. You agree to the following items:

2. If we deem that you have violated the preceding paragraph, we may terminate the provision of all functions of the Service used by you without any notice to you.

3. We shall not be liable for compensation, indemnification or any other damages incurred by you due to or in connection with the measures outlined in the preceding paragraph. You shall indemnify us, our affiliates, officers, directors, employees or agents from and against all claims, losses, damages, expenses (including attorney’s fees) arising from or in connection with your violation of Paragraph 1.

Article 13 No Assignment of Rights and Obligations

You shall not assign, succeed, pledge, or otherwise dispose of all or part of your contractual position, rights, and obligations, or claims and debts under these Terms to any third party without our prior written consent.

Article 14 Severability

If any provision of these Terms is determined to be invalid or unlawful in whole or in part, such invalidity or illegality shall not in any way affect the other provisions of these Terms or their interpretation and application and shall not impair or invalidate such other remaining provisions’ legality and validity.

Article 15 Governing Law

These Terms shall be governed by and construed under the laws of the State of California.

Article 16 Arbitration Agreement

ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with ZOZO and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and ZOZO agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and ZOZO may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or ZOZO may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and ZOZO. If that occurs, ZOZO is committed to working with you to reach a reasonable resolution. You and ZOZO agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and ZOZO therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to ZOZO that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@zozofit.com or regular mail to our offices located at 3122 Santa Monica Blv. Suite 310, Santa Monica CA 90404. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

3. Waiver of Jury Trial. YOU AND ZOZO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and ZOZO are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

4. Waiver of Class and Other Non-Individualized Relief. YOU AND ZOZO AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and ZOZO agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of [Delaware]. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or ZOZO from participating in a class-wide settlement of claims.

5. Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and ZOZO agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the National Arbitration and Mediation (“NAM”), in accordance with the Consumer Arbitration Rules (the “NAM Rules”) then in effect, except as modified by this section of this Arbitration Agreement. NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and ZOZO otherwise agree, or the Batch Arbitration process discussed in Section 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely set forth in the applicable NAM Rules.

You and ZOZO agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of [Delaware] and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then NAM will appoint the arbitrator in accordance with the NAM Rules, provided that if the Batch Arbitration process under Section 16.9 (Batch Arbitration) is triggered, NAM will appoint the arbitrator for each batch.

7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 16.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 16.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 16.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or ZOZO need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and ZOZO agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against ZOZO by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), NAM shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by ZOZO.

You and ZOZO agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: support@zozofit.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

11. Invalidity, Expiration. Except as provided in Section 16.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with ZOZO as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if ZOZO makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to ZOZO at support@zozofit.com, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. ZOZO will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

Article 17 Inquiries

If you have any questions about these Terms, please contact us at support@zozofit.com (Customer Service Division).