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Terms of Service

These Terms of Services are applicable to your access to and use of the Service (as defined below), and form a legally binding contract between you and Schemper Entertainment, Inc. dba BODYFIT BY AMY (on behalf of itself and its affiliates operating under the BODYFIT BY AMY brand, “Company,” “we,” “us” and/or “our”) related to the Service and any other interactions with us.

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, INCLUDING YOUR AGREEMENT TO MANDATORY ARBITRATION, WAIVER OF CLASS RELIEF AND WAIVER OF A RIGHT TO A JURY TRIAL (AS SET FORTH IN SECTION 13) AND YOUR ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY (AS SET FORTH IN SECTIONS 10 AND 11).

BY ACCESSING AND USING THE SERVICE, WHETHER BY VISITING OUR SITE, DOWNLOADING THE APP, MAKING PURCHASES OR OTHERWISE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND ARE AGREEING THAT THEY FORM A BINDING CONTRACT BETWEEN YOU AND THE COMPANY.  IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICE.

  1. Description of Service

Our Service currently includes the BODYFIT BY AMY app designed for you to download, access, and use on your mobile, table, smart watch or other personal devices, as well as certain smart TVs, and other Internet-connected devices or hardware products (collectively, the “App”); the BODYFIT BY AMY website, together with all and any other websites, apps, digital properties and platforms, as well as and all digital fitness, training, wellness and other content features, functionalities, and services we make available through any of the foregoing (collectively the “Services”).  These Terms govern your use of the BODYFIT BY AMY Services, including all functionalities, features, Streaming Services, audio, visual, written media, PDF, Website links and user interfaces, and all content and software associated with the Services as provided by the Company.

  1. Acceptance and Changes to Terms

The Company shall have the right, at its sole discretion, to modify, add, or remove any terms or conditions of these Terms of Service without notice or liability to you. Any changes to these Terms of Service shall be effective immediately following the posting of such changes. You agree to review these Terms of Service from time to time and agree that any subsequent use by you of the Services following changes to these Terms of Service shall constitute your acceptance of all such changes.

  1. Access and Use of Service

The Services are intended for use by adults, and you must be at least 18 years old (or the age of majority, if different in the jurisdiction where you live) to register for the Services and upload User Generated Content (defined below).  Users accessing the Services must be at least thirteen (13) years of age, and if you not of the age of minority in your jurisdiction, access and use of the Services may only occur solely with the consent of your parent or guardian, and then only under their supervision.  The Company makes no claims that the Services may be lawfully accessed in any specific location. Access to the Services may not be legal by certain persons or in certain states or certain countries, or may require government authorization or registration. When you access the Services you are solely responsible for compliance with the laws and regulations of your jurisdiction.

  1. Your Conduct

The Services may be used only for lawful purposes relating to streaming and related materials. The Company specifically prohibits any use of the Services, and all users agree not to use the Services, for any purposes other than designated by the Company.

You are prohibited from violating or attempting to violate the security of the Services, including, without limitation, (a) accessing data not intended for such user or logging into a server or account which the user is not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to this Services, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”, (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, (e) scraping or harvesting data or (f) the use of robots to skew payouts..

Violations of system or network security or inappropriate conduct may result in civil or criminal liability. The Company will investigate occurrences that may involve such violations and may involve, and cooperate with law enforcement entities in prosecuting users who are involved in such violations.

  1. User Information

You are solely responsible for the information you input or upload to the Services, and warrant and represent you have the right and authorization to register for the Services and post User Generated Content. The Company reserves the right in its sole discretion to decide whether the information you input or upload is appropriate and complies with the Terms of Service, other Company policies, and applicable laws and regulations.

If you register for the Services, you will be asked to provide certain information including a valid email address. You warrant and represent that all such information is current and accurate, and will be kept up-to-date.

Your privacy rights are set forth in our Privacy Policy located at <link to Privacy Policy>.

Company reserves the right to offer Company or third party services and products to you based on the preferences that you identify in your registration and at any time thereafter, unless you opt-out of receiving third party services and products.

  1. Username/Password/Security

You are responsible for maintaining the confidentiality of your information as it relates to the Services, including your username and password, and are responsible for all uses of your username and password whether or not authorized by you. If you wish to have someone else use your device, it is important you always log out so no other individual will have access to your content.

You agree to immediately notify the Company of any unauthorized use of your username and password.

  1. Use of Services

The Services are offered only for video streaming and related materials and is only a conduit for video streaming and related materials.

Each user is solely responsible for deciding whether the Services offered are suitable for your own purposes and whether the Services match your needs.

The Company grants you a limited, non-exclusive license to access and use the Services for your own personal and non-commercial purposes. This includes rights to view content on Company’s website and applications.

If you elect to access any component of the Services for which there is a fee, you agree to pay all fees and charges associated with your account on a timely basis. All such fees and charges (including any taxes and late fees, as applicable) will be charged on your credit card. Each user agrees to maintain valid credit card information as part of your account information when applicable.

  1. Access to Services – Subscriptions & Purchases

The Services may allow you to access digital content on a pay per view basis, subscription basis, rent, or purchases. The basis on which digital content is available on the Services will be indicated on the product detail page for which you may purchase the digital content. Subject to your payment of any applicable fees, purchases, subscriptions, rent or pay per view, the Company grants you a non-exclusive, non-transferrable, personal, non-sub licensable, limited right and license to view the video stream based upon the applicable fees, purchases, subscriptions, rent or pay per view selected by you.

The Company makes no guarantees as to the resolution and quality of your digital content when streaming. The quality and speed of your stream of digital content has many different variables, including your connection speed, location, download speeds, devices, player and bandwidth.

  1. Payments & Billing

The digital content available under specific payment plans, including pay per view, subscription, membership, or rent will change from time to time at the sole discretion of the Company. The Company makes no guarantee as to the availability of a specific payment plan.

By purchasing a payment plan, you expressly agree that we are authorized to charge your selected payment plan on the Payment Method you designate. You can update change this information at anytime by logging into your video library, and clicking the settings tab under the username.

Receipts are sent once the charge is successful to the registered email account. Your subscription will continue in effect unless and until you cancel your subscription or we terminate it. You must cancel your payment plan according to the terms of that specific plan prior to the next charge in order to avoid billing.

  1. User Comments and Suggestions

While the Company values user feedback, please be specific in your comments and do not submit creative ideas, inventions, or suggestions.

If, despite our request, users send creative ideas, inventions, or suggestions, all such submission shall be the property of the Company in whole or in part. The Company shall own exclusively all now known or later discovered rights to the submissions and shall be entitled to unrestricted use of the submissions for any purpose whatsoever, commercial or otherwise, without compensation to users or any other third party.

No part of the submissions shall be subject to any obligation of confidence and the Company shall not be liable for any use or disclosure.

  1. Intellectual Property

BODYFIT BY AMY and any other Company trademarks and trade names, and any variations thereof, are and shall remain the trademarks and trade names and exclusive property of the Company, and any unauthorized use of such trademarks and trade names is prohibited.

The Services (including without limitation all programs, complied binaries, interface layout, interface text, documentation, resources and graphics) is the sole and exclusive property of the Company and is protected by copyright, trademark, and other intellectual property common and statutory laws of the United States and other countries.

You agree that BODYFIT BY AMY owns and retains all rights to the Services and that is content is solely owned and controlled by the content provider and all such material are protected and copyrighted, trademarked and protected by copyright, trademark, and other intellectual property common and statutory laws of the United States and other countries.

You may not sell or modify the Services content or the Services, or reproduce, display, publicly perform, distribute, or otherwise use the Services in any way for any purpose.

  1. Social Networking

Users may have the option to Twitter, Facebook or other social networking Services through the Services to share links and content. Users undertake this option as their sole responsibility, including but not limited to complying with all of the terms and conditions of the social networking Services.

  1. Use of Software

If the Services require or include downloadable software such as an app, or use of software provided by the Company for Publishers, the Company grants a personal, limited, non-exclusive and nontransferable license to use the Software, all portions thereof, all documentation, and all updates (individually and collectively the “Software”) only for the purposes relating to video streaming and related activities through https://bodyfitbyamy.com

Users shall not modify, alter, create derivative works, decompile, reverse engineer, disassemble, include in other software, translate the Software, or use the Software for any other purpose.

Users shall not copy, reproduce, transmit, rent, lease, resell, sublicense, assign, distribute or otherwise transfer the Software or this license.

This License does not allow users to use the Software on any device that the user does not own or control, and user may not distribute or make the Software available over a network where the Software could be used by multiple devices at the same time.

Users agree that the Software, including the specific design and structure, constitute proprietary and confidential information, trade secrets and/or intellectual property of the Company. You agree not to disclose, provide, or otherwise make available such proprietary and confidential information, trade secrets or copyrighted material in any form to any third party, or use the proprietary and confidential information, trade secrets or copyrighted material for your own benefit or for the benefit of any third party.

Users acknowledge and agree that use of the Software may require the Company to acquire user’s mobile phone number and perhaps additional such information in order to obtain access Software.

Users agree that the Company may collect and use technical data and related information that is gathered periodically to facilitate the provision of updates, product support and other services. The Company may use this information, as long as it is in a form that does not personally identify a user.

The Company shall have the right, and you agree, that in its sole discretion and with reasonable posted notice and/or sent to your email address, to revise, automatically update, or otherwise modify the Software, at any time. Users continued use of the Software constitutes acceptance of and agreement to such changes.

This License is effective until terminated the user or the Company at its sole discretion. User’s rights under this license will terminate automatically without notice if user fails to comply with any terms of this License. Upon termination, user shall cease all use of the Software and delete all versions of the Software possessed by the user.

The warranty and limitation of liability provisions set forth below apply also to the use of the Software.

  1. Copyright Infringement Notification

If you believe that any copyrighted work is accessible through the Services in a way that constitutes copyright infringement, please notify the Company by providing our designated copyright agent with the following information:

The physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf;

A description of the copyrighted work you claim has been infringed, and a description of the activity that you claim to be infringing;

Identification of the URL or other specific location on the Services where the material or activity you claim to be infringing is located or is occurring; You must include enough information to allow us to locate the material or the activity;

Your name, address, telephone number, and e-mail address;

A statement by you, made under penalty of perjury, that (i) the information you have provided is accurate and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (ii) you have a good faith belief that use of the copyrighted materials is not authorized by the copyright owner, any agent of the copyright owner, or the law.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against, you can send the Company a counter-notice that includes the following:

Your name and address, and telephone number;

The source address of the removed content;

A statement under penalty of perjury that you have a good faith belief that the content was removed in error; and

A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which the Website may be found, and that you will accept service of process from the person who provided the original complaint.

Please note that the United States Copyright Act prohibits the submission of a false or materially misleading Notice or Counter-Notice, and any such submission may result in liabilities, including perjury.

The Company has designated Kurt Schemper as our agent to receive notices of claims of copyright infringement. You can contact info@bodyfitbyamy.com

  1. Indemnification

TO THE MAXIMUM ETENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUCCESSORS AND ASSIGNS (ALL OF THE FOREGOING, TOGETHER WITH THE COMPANY, THE “COMPANY PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COMPLAINTS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, FINES, PENALTIES, INTEREST, FEES, EXPENSES AND COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE OF THE SERVICES OR ADVICE (DEFINED BELOW); (B) YOUR USER GENERATED CONTENT OR COMMUNICATIONS, INCLUDING ANY ALLEGATIONS OF INFRINGEMENT OR OTHER VIOLATION OF RIGHTS, AND/OR (C) YOUR BREACH OR VIOLATION OF THE TERMS OF THIS AGREEMENT. THE COMPANY SHALL PROVIDE NOTICE TO YOU PROMPTLY OF ANY SUCH CLAIM, SUIT, OR PROCEEDING AND SHALL ASSIST YOU, AT YOUR EXPENSE, IN DEFENDING ANY SUCH CLAIM, SUIT OR PROCEEDING. THE COMPANY RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO IMMEDIATE INDEMNIFICATION.

  1. Health and Safety Risks

PLEASE READ THE FOLLOWING CAREFULLY AS IT DISCUSSES IMPORTANT RISKS TO YOUR HEALTH AND SAFETY, AS WELL AS YOUR ACCEPTANCE AND ASSUMPTION OF THOSE RISKS.

Health Disclaimers.  The Company is not a healthcare or medical provider. The Services, including any workouts, classes, exercises, regimens, plans, recommendations, instructor guidance, advice, information, nutritional plans, recipes or other materials contained, offered or discussed therein (the “Advice”), are provided for entertainment and informational purposes only; they do not constitute medical or counseling advice, diagnoses or treatment and should not be relied upon or used as a substitute for a professional medical evaluation. Future scientific and medical developments may impact the Services and Advice and accordingly we do not represent, warrant or guarantee that the Service and Advice will always reflect the most recent findings or developments. The Company is not liable or responsible for any consequences of you having read, used or relied upon any Services or Advice. We encourage you to see your healthcare provider on a regular basis and seek their advice prior to engaging in any new or modified fitness or wellness regimen or if you have any questions or concerns regarding your health and fitness regimen. YOUR DECISION TO RELY ON AND/OR USE THE SERVICES AND ANY ADVICE IS AT YOUR SOLE RISK. SUBJECT TO SECTION 16 (EXCLUSIONS), THE COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY SERVICES OR ADVICE AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY SERVICES OR ADVICE, AND THE COMPANY PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY, PHYSICAL HARM, DISMEMBERMENT AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY SERVICES OR ADVICE.

Your Health Representations.  By using the Services, you are representing and warranting to the Company that you are in good health and have no injury, impairment, disability, disease, ailment or condition, that prevents you from, and otherwise do not know of any reason that you cannot or should not, properly or safely engaging in active or passive exercise or otherwise using the Services or that could cause increased your risk of injury or adverse health consequences as a result of your engagement in exercise or other use of the Services. YOU UNDERSTAND AND AGREE THAT ADVICE AND INSTRUCTOR GUIDANCE IS NOT A SUBSTITUTE FOR LISTENING TO YOUR OWN BODY OR YOUR HEALTHCARE PROVIDER’S ADVICE OR RECOMMENDATIONS. IF ANY INSTRUCTOR GUIDANCE ADVICE IN THE SERVICE. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING THE SERVICES OR FOLLOWING ANY ADVICE, OR IF ANY INSTRUCTOR GUIDANCE OR ADVICE CONFLICTS WITH WHAT HEALTHCARE PROVIDER HAS ADVISED, STOP YOUR USE OF THE SERVICES AND CONSULT YOUR HEALTHCARE PROVIDER AND/OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY. 

Assumption of Risk. By using the Services, including the Advice provided through the Services, you acknowledge that you have voluntarily chosen to participate in an intense physical program that may involve strength, endurance, flexibility, aerobic, cardio or other exercises, and physical and emotional exertion and stress, all of which can be potentially hazardous, and you further acknowledge that the specific risks vary from one activity to another, but range from (1) minor injuries such as scratches, bruises, sprains, and fainting; (2) major injuries such as eye injuries, joint or back injuries, heart attacks, rhabdomyolysis, and concussions; and (3) catastrophic injuries, including paralysis and death. IN CONSIDERATION OF YOUR RIGHTS TO ACCESS AND USE THE SERVICE, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DISTRIBUTEES, LEGAL REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, YOU HEREBY VOLUNTARILY AND KNOWINGLY ACKNOWLEDGE AND ASSUME ALL RISKS ASSOCIATED WITH YOUR FAILURE TO USE REASONABLE CARE WHEN USING THE SERVICES AND/OR YOUR USE OF THE SERVICES OTHER THAN FOR ITS INTENDED PURPOSE, AND YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY PARTIES FROM ANY AND ALL CLAIMS OF ANY NATURE WHATSOEVER, INCLUDING ANY PROPERTY DAMAGE, PERSONAL INJURY, INJURY TO OTHERS OR DEATH, TO THE EXTENT ANY OF THE FOREGOING ARISE OUT OF OR RELATE IN ANY WAY TO YOUR NEGLIGENCE, INTENTIONAL ACTS AND/OR FAILURE TO EXERCISE REASONABLE CARE WHEN ACCESSING AND USING THE SERVICE.

  1. Warranty Disclaimers

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET USER REQUIREMENTS OR BE OF BENEFIT, THAT THE OPERATION OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, THE COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS ASSOCIATED WITH THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA.

THE COMPANY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE SERVICES OR USER GENERATED CONTENT OFFERED OR ANY OTHER CONTENT ACCESSED THROUGH THE SERVICES.

THE TRANSMISSION OF DATA OR INFORMATION INCLUDING COMMUNICATIONS BY E-MAIL OVER THE INTERNET OR OTHER PUBLICLY ACCESSIBLE NETWORKS IS NOT SECURE, AND IS SUBJECT TO POSSIBLE LOSS, INTERCEPTION OR ALTERATION WHILE IN TRANSIT. ACCORDINGLY, THE COMPANY DOES NOT ASSUME ANY LIABILITY FOR ANY DAMAGE USERS MAY EXPERIENCE OR COSTS USERS MAY INCUR AS A RESULT OF ANY TRANSMISSIONS OVER THE INTERNET OR OTHER PUBLICLY ACCESSIBLE NETWORKS, SUCH AS TRANSMISSIONS INVOLVING THE EXCHANGE OF E-MAIL. IN NO EVENT WILL SUCH DATA OR INFORMATION BE DEEMED TO BE CONFIDENTIAL, CREATE ANY FIDUCIARY OBLIGATIONS ON THE COMPANY’S PART, OR RESULT IN ANY LIABILITY TO YOU IN THE EVENT THAT SUCH INFORMATION IS INADVERTENTLY RELEASED OR ACCESSED BY THIRD PARTIES WITHOUT CONSENT.

THE COMPANY TAKES NO RESPONSIBILITY WHATSOEVER FOR THE INFORMATION YOU HAVE UPLOADED TO THE SERVICES AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, OR LOSS OF SUCH INFORMATION, OR FAILURE TO STORE ANY OF SUCH INFORMATION.  NOR IS THE COMPANY RESPONSIBLE FOR LOSS OF INFORMATION THROUGH THE ACTION OF ANY THIRD PARTY OR BECAUSE OF CIRCUMSTANCES BEYOND THE COMPANY’S CONTROL. ALL USERS ARE EXPECTED TO HAVE THEIR OWN BACKUP OF ALL OF THEIR INFORMATION.

  1. Waiver and Release.

IN CONSIDERATION OF YOUR RIGHTS TO ACCESS AND USE THE SERVICES, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DISTRIBUTEES, LEGAL REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, YOU HEREBY VOLUNTARILY AND KNOWINGLY, FOREVER WAIVE, RELEASE, COVENANT NOT TO SUE, DISCHARGE AND HOLD HARMLESS THE COMPANY PARTIES FROM, AND THE COMPANY PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR, ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY, INCLUDING FOR ANY PROPERTY LOSS OR DAMAGE, LOSS OF EARNINGS OR EARNING CAPACITY, PERSONAL INJURY, ILLNESS OR IMPAIRMENT, PHYSICAL PAIN, MENTAL ANGUISH, PARALYSIS, HEART ATTACK OR DEATH, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THESE TERMS, YOUR ACCESS TO AND USE OF THE SERVICES, YOUR PURCHASES AND THE USE OR NON-USE OF ANY SERVICE, CONTENT OR PRODUCT PROVIDED OR OFFERED HEREUNDER, WHETHER RELATED TO EXERCISE OR NOT AND REGARDLESS OF LEGAL THEORY OR WHETHER ARISING IN OR BY STATUTE, TORT, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE AND WHETHER SUCH LOSSES OR DAMAGES ARE KNOWN OR UNKNOWN TO YOU OR ANY OTHER PERSON; PROVIDED THAT THE FOREGOING RELEASE AND WAIVER OF LIABILITY SHALL NOT APPLY TO ANY LOSSES OR DAMAGES CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF ANY COMPANY PARTY TO THE EXTENT SUCH DISCLAIMER IS PROHIBITED BY LAW. NONETHELESS, THIS RELEASE IS INTENDED BY BOTH PARTIES TO BE AS BROAD IN EFFECT AS ALLOWED BY LAW AND SHALL COVER OR INCLUDE ANY CLAIM OR DEMAND YOU HAVE, HAD OR EVER WILL HAVE. ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, AND ANY SIMILAR APPLICABLE LAW, ARE HEREBY EXPRESSLY WAIVED. SECTION 1542 READS AS FOLLOWS: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

  1. Limitation of Liabilities

Sole and Exclusive Remedy.  SUBJECT TO SECTION 16 (EXCLUSIONS), YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES, IN ADDITION TO ANY APPLICABLE REFUND POLICIES, IS TO STOP USING THE SERVICES AND, WHERE APPLICABLE, CANCEL ANY ASSOCIATED SERVICES SUBSCRIPTION AND/OR MEMBERSHIP.

Limitation of Liability.  SUBJECT TO SECTION 16 (EXCLUSIONS), THE COMPANY PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY DEATH, PERSONAL INJURY, LOSS OF USE, LOSS OF PROFITS OR GOODWILL, LOSS OF DATA (INCLUDING LOSS OF USER CONTENT), DAMAGE TO DEVICES, EQUIPMENT, HARDWARE, SOFTWARE OR OTHER PROPERTY, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY CONTENT PRODUCT, OR OTHERWISE IN ANY WAY RELATING TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ANY COMPANY PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.

Limitation of Damages.  IN ADDITION, IF AND TO THE EXTENT COMPANY PARTIES ARE LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY CONTENT OR PRODUCT, OR THESE TERMS, THEN, SUBJECT TO SECTION 16 (EXCLUSIONS), THE AGGREGATE LIABILITY OF COMPANY PARTIES FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO GREATER OF (A) ONE HUNDRED DOLLARS ($100.00 USD) OR (B) (I) IF YOUR CLAIM RELATES TO THE SERVICES, THE AMOUNT YOU PAID TO THE COMPANY FOR ACCESS TO THE SERVICES IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM.

Exclusions.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND THE COMPANY PARTIES DO NOT DISCLAIM ANY WARRANTY, LIABILITY FOR CERTAIN DAMAGES, OR OTHER RIGHT THAT THEY ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW, AND YOU MAY HAVE GREATER RIGHTS UNDER SUCH APPLICABLE LAWS.

  1. Arbitration Agreement and Class Action Waiver

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES (AS DEFINED BELOW) WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Arbitration Agreement.  By using the Service, you and the Company Parties agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”).  Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), www.adr.org.  If you initiate arbitration, you shall have the choice as between these two arbitration forums; if the Company initiates arbitration, it shall have the choice as between these two arbitration forums.

YOU AND THE COMPANY EACH HEREBY AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, INCLUDING ALL ISSUES RELATING TO THE ENFORCEABILITY, INTERPRETATION, SCOPE, AND APPLICATION OF THIS ARBITRATION AGREEMENT (SUCH AS “GATEWAY” ISSUES OF ARBITRABILITY, WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT. 

Class Action Waiver.  By using the Services, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving the Company or any other person.  You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against the Company Parties.  We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action).  If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.  Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

Definition of Dispute.  Except as described in the following paragraph, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and the Company Parties regarding any aspect of your relationship with the Company and/or Company Parties, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, whether related to the access to and use of the Services or otherwise, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.  However, “Dispute” SHALL NOT include any (1) personal injury claim, claim for lost, stolen or damaged property, or any individual action in small claims court; (2) claim that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, (3) claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public and (4) any enforcement action, validity determination or other claim arising from or relating to infringement, misappropriation, theft, piracy or other unauthorized use of intellectual property. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.

How Will The Arbitration Work?  Either you or the Company may initiate arbitration proceedings.  The arbitration will be conducted before a single arbitrator.  The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.  If you or the Company initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:

  • For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.
  • Which particular rules apply in AAA arbitration will depend on how much money is at issue.  For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.

If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, the Company will pay all arbitrator’s costs and expenses.  If not, those costs will be paid as specified in the above-referenced rules.

Where Will The Arbitration Be Held?  You can bring the arbitration in either California or in the state where you live if there is a JAMS or AAA in that state.  In the event that the Company initiates an arbitration, it will only do so in the state where you live before either JAMS or AAA, unless there is no JAMS or AAA in your state, in which case the Company may initiate the arbitration in California.  The arbitrator shall apply California law.

  1. Communications

By using the Services you consent to receive electronic communications from the Company. These communications will include, emails about account, password, access, marketing, transactional and other information related to the Services and to your account.

  1. Additional Terms and Conditions

Governing Law.  These Terms of Service shall be governed by and construed in accordance with the laws of the State of California applicable therein, without regard to conflict of laws and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). For any Dispute that is not subject to arbitration or cannot be heard in small claims court, you and the Company hereby irrevocably consent and submit to the personal and exclusive jurisdiction of the state and federal court located within Los Angeles, California and waive all objections thereto.

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

Miscellaneous.  These Terms, together with the Additional Terms and any other agreements, policies or documents, referenced in these Terms or otherwise made available to you as part of the Services, constitute the entire and exclusive understanding and agreement between you and the Company in connection with the Services. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign or transfer these Terms, or delegate any rights or obligations under these Terms, in whole or in part, by operation of law or otherwise at any time without notice or consent. Our failure to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision, nor will any written waiver by us of any breach or default of these Terms be a waiver of any subsequent breach or default. Any waiver will be effective only if in writing signed by an authorized representative of the Company.  Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.