Terms & Conditions
Last Updated: Marc 31, 2021
The terms of service outlined hereunder (“Terms of Service”) govern your use of an access to all Services (defined below) provided by The Body Department (defined below). Please read these Terms of Services carefully prior to utilizing the Services. The Terms of Service are divided into two parts:
Part A: General Terms of Service
Part B: Terms for Purchase of Premium or Subscription Services
Part A: General Terms of Service
1. BINDING EFFECT
By using the Internet site located at www.thebodydepartment.com or any services provided in connection with the site (including, without limitation, mobile applications) (collectively, the “Services”), you agree to abide by these Terms of Service, as they may be amended by The Body Department LLC, its partners, client company partners, assigns, affiliates, officers, directors, employees, consultants, agents, and representatives (collectively “The Body Department,” “we,” “us” or “our”) from time to time in its sole discretion. These Terms of Service represent a binding contract between The Body Department and you. By creating an account or otherwise accessing the Services, you expressly agree to be bound by them. If you do not agree to be bound by the Terms of Service, you may not use the Services.
PLEASE NOTE THE ARBITRATION PROVISION SET FORTH BELOW, WHICH MAY, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW, REQUIRES YOU TO ARBITRATE ANY CLAIMS YOU MAY HAVE AGAINST THE BODY DEPARTMENT ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
2. WAIVER OF LIABILITY/ASSUMPTION OF RISK
YOU ARE FULLY AWARE OF AND ACKNOWLEDGE THE RISKS ASSOCIATED WITH PARTICIPATING IN ANY AND ALL SERVICES (INCLUDING CLASSES AND OTHER CONTENT THAT MAY BECOME AVAILABLE TO YOU THROUGH THE SERVICES) PROVIDED BY (OR MADE AVAILABLE BY) THE BODY DEPARTMENT AND ACCEPT ALL RISKS (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY) IN CONNECTION THEREWITH.
YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT: (A) PRIOR TO STARTING THIS OR ANY OTHER FITNESS PROGRAM PROVIDED BY THE BODY DEPARTMENT, OR CHANGING OR ENDING ANY FITNESS PROGRAM, YOU WILL CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL AND, ACCORDINGLY, SHOULD NOT START ANY SUCH PROGRAMS IF YOUR PHYSICIAN OR HEALTHCARE PROVIDER ADVISES AGAINST IT; (B) INFORMATION PROVIDED THROUGH THE SERVICES (INCLUDING BY THE BODY DEPARTMENT) IN ANY CAPACITY NEITHER SUBSTITUTES FOR NOR REPLACES PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT; (C) NOTHING CONTAINED HEREIN OR IN CONNECTION WITH THE SERVICES SHALL BE DEEMED TO INCLUDE THE MOST RECENT DEVELOPMENTS OR FINDINGS IN RESEARCH (MEDICAL OR OTHERWISE) RELATING HEALTH, FITNESS, AND NUTRITION, AND YOUR USE AND/OR RELIANCE ON ANY SUCH DEVELOPMENTS OR FINDINGS WILL BE SOLELY AT YOUR OWN RISK.
THE CONTENT ON THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY. CONTENT PROVIDERS ON THE SERVICES ARE NOT MEDICAL PROFESSIONALS AND SERVICES DO NOT PROVIDE MEDICAL SERVICES. IF ANY CONTENT ON THE SERVICES CONFLICTS WITH ADVICE FROM A MEDICAL PROFESSIONAL, YOU SHOULD FOLLOW THE ADVICE OF A MEDICAL PROFESSIONAL. YOU SHOULD NOT RELY ON INFORMATION FOUND ON THE SERVICES AS A SUBSTITUTE OR REPLACEMENT FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
3. AGE REQUIREMENTS
The Services are intended for individuals of legal age. If you are under the age of eighteen (18) years (or 21 if that is the age of majority in your State, Country or territory), [A1] then you must review the Terms of Service with your parent or legal guardian to make sure that you and your parent or legal guardian understand and accept all of the Terms of Service. By accessing the Services, you represent that you are of legal age to form a binding contract (or if you are not, that you have obtained the informed consent of your parent or legal guardian to your assent to the Terms of Service).
5. ACCOUNT CREATION AND PASSWORDS
To access certain portions of the Services, you must create an account and have a subscription[A3] or otherwise pay to access certain Services. Subscriptions and payments will be subject to terms set forth in Part B below.
You agree to provide truthful and accurate information to us. You also agree to maintain the accuracy of any submitted data. If you provided any information that is untrue, inaccurate, or incomplete, we reserve the right to terminate your account and suspend your use of any and all Services.
You are responsible for preserving the confidentiality of your account password and will notify us of any known or suspected unauthorized use of your account. You agree that you are responsible for all acts or omissions that occur on your account while your password is being used.
6. CONTENT/USER CONTENT
The Services include a combination of content created by us, or provided to us by a licensor or other third parties and users. All of the content, and other information either displayed on, transmitted through, or otherwise used in connection with the Services, including but not limited to text, photographs, graphics, images, illustrations, animations, audio or video clips, interactive classes, html, source and object code, software, data, or other technology, as well as its copyrightable selection and arrangement, logos, trademarks and service marks (collectively, the “Content”) is owned or controlled by us unless stated otherwise. Acceptance of these terms constitutes consent to be recorded on audio or video, before, during, or after interactive classes. [A4]
You may use the Content on the Services for your personal use and may not remove or alter any copyright or other notice (e.g., trademark, patent, etc.) contained in the information. Except as otherwise expressly stated herein, you may not modify, copy, distribute, display, reproduce, sell, license, or create derivative works from any information or Content, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of The Body Department or any applicable third party suppliers. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. You agree to comply with written requests from us to help us protect our proprietary and intellectual property rights.
You grant The Body Department a license to use the materials you post or upload to the Services. By posting, uploading, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Services, you are granting The Body Department, contributors, and creators a license to use User Content in connection with the operation of the Internet business of The Body Department, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that The Body Department may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Services, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
When interacting with other users, you should use common sense and exercise caution. Your participation, correspondence, or personal or business dealings with any third party found on the Services is solely between you and such third party and The Body Department shall have no liability with respect to such dealings.
7. PROHIBITED CONTENT
You shall not copy, store, redistribute, decompile, reverse-engineer, reproduce, transmit, modify, alter, emulate or disassemble any part of the Services in any way, or create derivative works thereof. You shall not access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”). You shall not violate or attempt to violate our security features, including logging into a server that you are not authorized to access, or probing the vulnerability of our systems and networks.
You agree, now and hereafter, not to upload, download, display, perform, transmit, or otherwise distribute any User Content that:
a) is libelous, hateful, defamatory, lewd, obscene, pornographic, abusive, vulgar, or threatening;
b) promotes illegal or harmful activities or substances, advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation;
c) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
d) advertises or otherwise solicits funds or is a solicitation for goods or services.
e) is fraudulent, false, misleading or deceptive;
f) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
g) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
h) exploits minors; or
i) engages in unwelcome, inappropriate, or offensive conduct.
You agree and acknowledge that any type of transmission or recording of Services of any kind is strictly prohibited without the express written consent of The Body Department and any service provider. [A5]
The Body Department reserves the right to terminate your receipt, transmission, or other distribution of any such material using the Services, and, if applicable, to delete any such material from its servers. The Body Department, in its sole discretion, further reserves the right to terminate your access to the Services at any time in connection with any violations of the terms stated in this Section. The Body Department intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Service or of any applicable laws.
8. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS
When accessing the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any User Content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any User Content you provide or transmit, or that is provided or transmitted using your account credentials. The burden of proving that any User Content does not violate any laws or third party rights rests solely with you.
9. COPYRIGHT INFRINGEMENT
The Body Department has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Services[A6] . The Body Department has adopted a policy that provides for the immediate suspension and/or termination of any user who is found to have infringed on the rights of The Body Department or of a related third party, or otherwise violated any intellectual property laws or regulations. The Body Department’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want The Body Department to delete, edit, or disable the material in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit The Body Department to locate the material; (d) information reasonably sufficient to permit The Body Department to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to The Body Department’s designated agent at:
Digital Media Management, INC
8444 Wilshire Blvd., 5th Floor
Beverly Hills, CA 90211
10. ALLEGED VIOLATIONS
The Body Department reserves the right to terminate your use of the Services in its sole discretion. You agree that The Body Department or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Services. The Body Department does not intend to disclose the existence or occurrence of such an investigation unless required by law, but The Body Department reserves the right to terminate your account or your access to the Services immediately, with or without notice to you, and without liability to you, if The Body Department believes that you have violated any of the Terms of Service, furnished The Body Department with false or misleading information, or interfered with use of the Services by others.
11. NO WARRANTIES
We make no warranties or representations as to the accuracy of the Services, including any Content, and assume no liability or responsibility for any error or omission in the Services. We do not represent or warrant that use of the Services, when authorized, will not infringe rights of third parties. Third parties may provide some of the content available on the Services. We do not guarantee the accuracy, the integrity, or the quality of content provided by third parties. Neither we, nor any of our affiliated or related companies, or any of our/its employees, agents, content providers or licensors, make any representation or warranty of any kind regarding the Services or the Content whatsoever. We make no warranty that the Services will meet your requirements, be uninterrupted, timely, secure or error free, or that the Services or the server that makes it available are free of viruses or other harmful components or destructive files. Unauthorized access to the Services is a breach of these Terms of Service and a violation of the law. You agree not to access the Services by any means other than through the interface that is provided by us for use in accessing the Services. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Services. Any opinions posted or displayed by third parties is not an opinion expressed by The Body Department or its affiliates. We do not warrant or guarantee the legitimacy of any users or of the Services or warrant or guarantee that any claims or promises made by any other party is accurate or legitimate and you are required to make your own determination regarding any such claims or promises made by any third parties or other users of the Services. You warrant that you make contact with other users or other third parties at your own risk and should perform reasonable due diligence before making such contact whether electronically or in person.
THE BODY DEPARTMENT IS MAKING THE SERVICES AVAILABLE “AS IS” WITHOUT WARRANTY OR GUARANTEE OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BODY DEPARTMENT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE BODY DEPARTMENT DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE BODY DEPARTMENT NEITHER WARRANTS NOR GUARANTEES ANY RESULTS IN CONNECTION WITH YOUR USE OF THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE BODY DEPARTMENT OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE BODY DEPARTMENT OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE SERVICES, YOUR DEALING WITH ANY OTHER SERVICES USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
12. LIMITATIONS ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE BODY DEPARTMENT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY THE BODY DEPARTMENT. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
IN NO EVENT WILL THE BODY DEPARTMENT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, GOODWILL, REPUTATION, OR ANY OTHER INTANGIBLE LOSS), INJURY OR DAMAGE TO SELF OR PROPERTY, OR DEATH, ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY THE BODY DEPARTMENT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE OR INJURY.
THE AGGREGATE LIABILITY OF THE BODY DEPARTMENT TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES, PRODUCTS SOLD THROUGH THE SERVICES, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend, and hold harmless The Body Department from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Services, your violation of these Terms of Service, your submission of User Content on the Services, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. The Body Department will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
14. FOREIGN ACCESS
The Services are controlled and operated by The Body Department from its offices in the State of California. The Body Department makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Services should not be construed as The Body Department’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
The Body Department may, in its sole discretion and without prior notice, (a) revise these Terms of Service; (b) modify the Services; and (c) discontinue the Services at any time. The Body Department shall post any revision to these Terms of Service to the Services, and the revision shall be effective immediately on such posting. You agree to review these Terms of Service and other online policies posted on the Services periodically to be aware of any revisions. You agree that, by continuing to use or access the Services following notice of any revision, you shall abide by any such revision.
All communications with The Body Department should be e-mailed to: firstname.lastname@example.org.
17. AFFILIATED SITES AND EXTERNAL SITES
The Body Department works with a number of partners and affiliates whose Internet sites may be linked with the Services. Since neither The Body Department nor the Services have control over the content and performance of these partner and affiliate sites, The Body Department makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and The Body Department assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the Services, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that The Body Department makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content, and that, unless expressly provided otherwise, these Terms of Service shall govern your use of any and all third party content.
18. CONSENT TO COMMUNICATIONS AND MONITORING/RECORDING OF VOICE CALLS AND TEXT MESSAGES MADE THROUGH THE SERVICE
By providing us with your contact information and using the Service, you agree to receive communications, including via e-mail and phone calls (including text messages and calls made using an autodialer or prerecorded voice message), and push notifications from or on behalf of The Body Department using the Services at the email address or telephone number you provided even if that number is on a National or State Do Not Call List. These calls and messages may be for informational purposes, such as to provide you with the information or consultation you requested. Standard text messaging and telephone minute charges applied by your cell phone carrier will apply.
The Body Department may, without further notice or warning and in our discretion, monitor and/or record calls and text message-based communications for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others, and you hereby consent to such monitoring and recording.
IF YOU WISH TO OPT OUT OF MARKETING EMAILS FROM US, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. IF YOU WISH TO OPT OUT OF SMS and MMS TEXTS FROM US, YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. You understand and agree that you may continue to receive communications while The Body Department processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.
19. NOTIFICATIONS AND AUTOMATIC ALERTS
20. THIRD-PARTY SERVICES
Third party websites and services are not under our control, and we are not responsible for any such websites or services.
Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”), such as end-user license agreements for any downloadable software applications,[A10] our informed consent forms, if applicable, or rules that are applicable to a particular feature or content on the Services. All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Service.
22. NO LICENSE
Nothing contained on the Services should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by The Body Department or by any third party.
If you choose to provide input or suggestions regarding your experience with the Services (“Feedback”), then you hereby grant The Body Department an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Services and create other products and services.
24. FORCE MAJEURE
To the fullest extent permitted under applicable law, The Body Department will be excused from performance under these Terms of Service for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms of Service, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to The Body Department’s information technology systems by third parties; or (g) other causes beyond the reasonable control of The Body Department.
You may not use the Services if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Services. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
26. CONSUMER PROTECTION NOTICE
Please note that, if you are a consumer, the limitations in these Terms of Service are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
California. 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.
27. NOTICE REGARDING APPLE [A11]
This Section only applies to the extent you are using our mobile application(s) on an iOS device. You acknowledge that these Terms of Service are between you and The Body Department only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and any of its subsidiaries are third party beneficiaries of these Terms of Service, and upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce all terms of these Terms of Service as a third party beneficiary. You hereby represent and warrant that (x) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties.
28. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE
Except where and to the extent prohibited by law, by using the Services, you and The Body Department agree that, if there is any controversy, claim, action, or dispute arising out of or related to your use of the Services or the breach, enforcement, interpretation, or validity of these Terms of Service or any part of it (“Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute.
Both you and The Body Department agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both parties.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service, including any claim that all or any part of these Terms of Service are void or voidable.
29. CHOICE OF LAW
These Terms of Service shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law.
30. CONSENT TO JURISDICTION AND FORUM SELECTION
You agree that all actions or proceedings arising in connection with these Terms of Service shall be tried and litigated exclusively in the California Superior Court of Los Angeles County. You further agree that any final judgment rendered against you in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
31. ATTORNEYS’ FEES AND COSTS
In the event of litigation relating to the subject matter of these Terms of Service, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.
In the event that we are required by state or federal law to notify you of certain events, you hereby acknowledge and consent that such notices will be effective upon our delivering them to you through your electronic mail. If you do not provide us with accurate information, we cannot be held liable if we fail to notify you. You have the right to request that we provide such notices to you in paper format, and may do so by contacting us in writing at:
Digital Media Management, INC
8444 Wilshire Blvd., 5th Floor
Beverly Hills, CA 90211
No waiver of any breach of any provision of these Terms of Service shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
34. ENTIRE AGREEMENT
These Terms of Service, including all amendments and policies that are incorporated by reference, constitute the entire agreement between you and The Body Department govern your use of the Services, superseding any prior agreements that you may have with The Body Department.
If any part of these Terms of Service are determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the Terms of Service shall continue in effect.
36. CONTACT US
If you have any questions, comments or concerns about these Terms of Service or the Services, please feel free to contact us at email@example.com.
All contents of the Services are: Copyright © 2011 Digital Media Management, INC; 8444 Wilshire Blvd., 5th Floor, Beverly Hills, CA 90211 (323) 378-6505 firstname.lastname@example.org. All rights reserved[A13] .
Part B: Terms for Purchase of Premium or Subscription Services
This Part B applies in addition to Part A when you purchase any of the Purchase Services (defined below) available through the Services.
The Body Department may offer Services that are subject to a fee (e.g., pay-per-class, pay per series of classes, monthly subscription to classes) (“Purchase Services”). The scope, features, and fee of such Purchase Services are outlined in the respective Service descriptions. [A14]
In connection therewith, you acknowledge and agree to the following:
a) If you buy Purchase Services by clicking “Get”, “Buy”, “Install”, “Download”, “Accept”, “Agree” or a similar button in the respective online stores such as, without limitation, the Apple App Store or the Google Play Store (“Online Store”), then the relevant Online Store provider’s terms and conditions shall also apply and, accordingly, any issues with the Purchase Services relating to billing and transactions will only be raised with the Online Store provider.[A15]
b) You will carefully review any terms and conditions of Online Store providers, which will also apply in addition to these Terms of Service.
2. VIRTUAL ITEMS[A16]
Our Services may enable you to acquire certain virtual items. This includes, without limitation, virtual currency, points, or similar virtual items (“Virtual Items”). Virtual Items shall be due for payment immediately after confirmation of the order. Virtual Items have a period of validity as described in the Services descriptions. You agree that the virtual value of any Virtual Item does not correspond or equate to any real-life monetary value, credit balance or currency. You acknowledge that Virtual Items cannot be used outside of the respective Services.
Any virtual currency or similar balance does not constitute a real-world balance or comprise any stored value. Your right to use the Virtual Items is personal to you unless we agree otherwise, and is limited to your right to use the Services for non-commercial entertainment purposes. You may not re-sell or trade any Virtual Items.
Virtual Items to be used for purchase of Services (such as virtual currency) have a period of validity of three (3) years beginning with the end of the calendar year in which you purchased the Virtual Items (or if shorter, for the period the applicable Services remains available). The Virtual Items will expire after this period. Additionally, please note that if you remove and reinstall a Services on a new device, you may lose your in-Services purchases, including any accrued Virtual Items.
3. TRIAL VERSIONS
We may, at our sole discretion, offer you Purchase Services for a certain time free of charge (“Trial”). Unless you opt out of the Trial as described in the Services descriptions, we will convert the Trial to a Purchase Services subject to a fee. [A17]
If you use the Services free of charge in any manner as described herein, we are only liable for damages as specified in these Terms of Services.
4. USE RIGHTS; TERM; TERMINATION[A18]
The term for a Purchase Services begins with the placement of an order (i.e., by clicking “Get”, “Buy”, “Install”, “Download”, “Accept”, “Agree” or a similar button) in the respective Services (“Purchase Date”) and ends when you have completed the Purchase Services as described in the Services description.
The term of a Trial begins with the placement of the order as specified herein and ends after the term announced in the Services descriptions (“Trial Period”). The term of a Trial ends automatically after the Trial Period without requirement of a termination of either party. Once your Trial Period expires, you will no longer be able to access the Trial of the Services. The Body Department reserves the right (i) to determine if you are eligible to use the Trial and (ii) to discontinue any Trial without notice at our sole discretion.[A19]
We reserve the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Services. Upon the termination of your account, any aspect of the Services, or this agreement for any reason, The Body Department may at its option delete any data you submitted through the Services.
Fees for Purchase Services will be charged to by our third-party payment processor to the account information provided when creating your account or confirming purchase. [A20] If you make a purchase by accident or want to refund your purchase, please contact the Online Store provider within 24 hours after you place your purchase.
When you purchase services from The Body Department, you authorize The Body Department to charge all sums as described herein, for the services you select, to that payment method. When you become a member in one of our paid subscription services, you understand that it is a membership that automatically renews itself every month indefinitely without action. Depending on your subscription selection, The Body Department’s payment processor will charge the then-current fee (plus sales tax, if applicable) to the payment method you specify at the time of purchase. Before you enroll in the subscription services, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, to the fullest extent permitted under applicable law. If you use the Services to update or cancel any existing authorized one-time or recurring payment, it may take up to 24 hours or such longer period as necessary to process the update/cancellation for the update or cancellation to take effect. If The Body Department changes the fees for the Services, including by adding additional fees or charges, The Body Department will provide you advance notice of those changes. If you do not accept the changes, The Body Department may discontinue providing the Services to you. If you pay any fees with a credit card, The Body Department may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If your payment is not successful, your access to the Purchase Services will be suspended until payment is received, provided payment is received within approximately 10 business days[A21] . If payment is not received within 10 business days, your membership will be cancelled. You may cancel your subscription at any time as follows:
o If you signed up for The Body Department through your Apple iTunes account, you may cancel at any time by going to your “Apple Subscriptions” settings, choosing “Manage Subscription”, and cancelling or changing your subscription details.[A22]
o If you signed up for The Body Department through The Body Department website or mobile site, you may cancel at any time by signing in to your account at [PLACEHODLER FOR URL] and cancelling your membership under the “My Account” tab.[A23]
If you have any questions about updating or cancelling your account, please contact us at (310) 826-8899 or by email at email@example.com.[A24]
[A1]@BD, please confirm age.
[A3]@BD, at the very least you will need some type of subscription (even if just one time only) to access content, so we think this makes sense.
[A4]@BD, not sure if you’re doing any type of interactive classes but we thought it made sense to leave it in just in case they’re offered in the future.
[A5]@BD, please confirm this is accurate.
[A6]@BD, please confirm this is accurate. We can discuss what these might look like.
@BD, [A7]Please note, we did not find DMM in the DMCA designated agent directory. Is your agent registered under a different name? In order to benefit from the DMCA’s safe harbor, you must have registered an agent with the Copyright Office. Should this be the same for Body Department?
[A8]@BD, let’s discuss how you intend on communicating with users, including notifications and alerts. These paragraphs are basically 2 different options and we can select the one that more closely aligns with what you’re planning.
@BD, [A9]We suggest including a hyperlink to the policy here.
[A10]@BD, would this apply?
[A11]@BD, This section would only apply to the extent you offer the platform via an app. If you’re offering it strictly via web now, we can remove this section.
[A12]@BD to confirm
[A13]@BD, please confirm whether this is the correct information for The Body Department.
[A14]@BD, have you determined how you will indicate what offers/subscriptions/etc. will be available?
[A15]@BD, for discussion so we can better understand the user experience when paying for classes
[A16]@BD to confirm if any virtual items will be available via the platform
[A17]@BD, for discussion
[A18]@BD, we should include here what happens if someone cancels mid-month – for example, would they get a refund if they pre-paid for that month, or does their account remain active until the end of that subscription period?
[A19]@BD to confirm
[A20]@BD, for discussion
[A21]@BD, would this apply?
[A22]@BD, could you sign up via iTunes or only through the website?
[A23]@BD to confirm