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Welcome to the Brooke Burke branded sites and mobile applications, which are owned and operated by BB Body, Inc. (“BB”) and its affiliates.
This terms and conditions and this End-User License Agreement (including any supplemental terms, as applicable) (“EULA” or “Agreement”) governs your use and access of brookeburkebody_.com (the “BB Site” or “Site” (or collectively “Sites”)), and BB’s mobile and platform applications, including the Brooke Burke Body Mobile Application (collectively “Applications”). The Site and Applications are made available by and you are entering into this EULA with BB Body, Inc. The Site and Applications, along with the fitness service and content made available therein are also referred to herein as the “BB Service” or “Service”. Any Service purchased hereunder is purchased from BB Body Inc./or a BB third party authorized plaforms or vendors. By registering as a member or by accessing or using the BB Service in any way, you accept this Agreement, including any associated polcies (including our privacy polices and any code of conduct polciies).
Prior to using the BB Service, it is important for you to know and understand that by accessing and/or using the Service through any means, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the BB Service is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Service or your access and use of the Service. If you have any questions or concerns regarding the terms or conditions herein, please email us at email@example.com or for VHX assistance at firstname.lastname@example.org
We may amend this Agreement from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an in-app message or an email to the email address provided at registration, which notifies you of such changes, shall constitute reasonable means. Your continued use of the Applications, Site or Service after we post any amendments to this Agreement will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue your access to and use of the Service.
By using the Service, you consent to receiving this Agreement in electronic form.
Notice to consumers: depending on the laws of the jurisdiction where you live, you may have certain rights that cannot be waived through this EULA and that are in addition to the terms of this EULA, and certain provisions of this EULA may be unenforceable as to you. To the extent that any term or condition of this EULA is unenforceable, the remainder of the EULA shall remain in full force and effect.
HEALTH WARNING AND LIABILITY DISCLAIMER:
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE OR WEIGHT LOSS PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE, HEART DISEASE OR OTHER MEDICAL CONDITION THAT MAY BE IMPACTED BY A CHANGE TO DIET OR EXERCISE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING. NOTHING STATED OR POSTED ON THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL
DISCLAIMER IN SECTION 3 and SECTION 4 AND SECTION 22 BELOW BEFORE COMMENCING YOUR USE OF THE SERVICE. BB SHALL NOT BE LIABLE FOR ANY LIABILITY, OF ANY KIND, RESULTING FROM THE USE OF THE SERVICE.
2. Acceptance of Terms and Agreement to Be Bound. The Services are offered to you on the condition that you accept and agree to be bound by this Agreement in its entirety without modification of any kind. By accessing and/or using any of our Sites, you agree to be bound by this Agreement, whether you are a “Visitor“ (which means that you simply browse one or more of our Sites) or you are a “Registered User“ (which means that you have registered to use the Sites and have subscribed to use one or more of the Services). If you do not accept the terms of this Agreement, you are not permitted to use the Sites and/or subscribe to the Services, and you are obliged to exit all of the Sites and discontinue any and all use of the Sites and the Services immediately.
3. Medical Disclaimer. YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THE SERVICE OR ANY OTHER EXERCISE OR WEIGHT LOSS PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, HAVE A BONE OR JOINT PROBLEM OR OTHER MEDICAL CONDITION THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY OR DIET. DO NOT USE THE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING OR FASTING, YOU SHOULD STOP IMMEDIATELY. THE SERVICE OFFERS GENERAL HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OF THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH- CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.
THE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND BB MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE SITES WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
4. Your Representations and Warranties. In using the BB Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise or, if applicable engage in intermittent fasting, including without limitation pregnancy; or (B) your physician has specifically approved of your use of the BB Service. You further affirm that you will not access the Service outside the United States.
Company makes no representation that content or materials in the Site are appropriate or available for use in jurisdictions outside the United States. Access to the Site from jurisdictions where such access is illegal is prohibited. If you choose to access the Site or Service from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. Company is not responsible for any violation of law. You agree that the Site, the Service, any related agreement and these Terms shall be interpreted and governed in accordance with federal law and, to the extent not preempted by federal law, with the laws of the state where Company maintains your User Account, or, if BB transfers your account to another location, where BB currently maintains your account. The Site shall be deemed a passive website and service that does not give rise to personal jurisdiction over BB, either specific or general, in jurisdictions other than the states covered by the preceding sentence. You agree and hereby submit to the exclusive personal jurisdiction of the state and federal courts located where BB maintains your User account, or, if BB transfers your account to another location, where BB currently maintains your account. As noted hereunder, you further agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the United States).
5. Modifications. We may modify this Agreement from time to time, and, to the greatest extent permitted by law, such modifications shall be effective upon posting at any of our Sites or Applications. By accessing and/or using any of our Sites after any such modification is posted, you are agreeing to be bound by such modifications. You also acknowledge and agree that it is your responsibility to monitor the Sites for the posting of modifications and to review such modifications on a regular basis. If you do not agree to be bound by any future modifications of this Agreement, your exclusive remedy is to cancel your account and discontinue your use of the Sites and the Services. Except as otherwise expressly provided herein, any new features, tools, products and/or services that change, augment, enhance or upgrade the current Sites and/or the Services will be subject to this Agreement.
6. General Registration Requirements. Visitors are currently permitted to view only limited portions of the Sites and the opening page of the Application(s) prior to deciding whether to become a Registered User. Full access to the Sites and the Services is available only to Registered Users and, if a subscription is required, then only to Registered Users who are also paid subscribers. If you wish to become a Registered User, you must register and must complete the registration procedures displayed on the registration page(s) of the Service and, where applicable, pay the required subscription fee. Some aspects of the Sites and the Services are available to all Registered Users, and some are available only to Registered Users who have paid the required subscription fee and/or other charges, all of which are posted at the Sites.
7. Age Requirements for Access and Use of the Services. By accessing and using the Service, you acknowledge and agree that you are representing to us that you are over the age of 18 and you are of legal age to form a legally binding contract, and you are not a person barred from purchasing or receiving products and services, under the laws of the United States or other applicable jurisdiction. Registration, subscription, access to and use of the Sites and the Services are not available to users under the age of 18 and are void where prohibited by applicable law.
8. Requirements for Becoming a Registered User. By completing the registration procedures displayed on the registration page(s) of the Sites, you acknowledge and agree that (a) you are representing to us that you are providing true, accurate, current and complete information about yourself as prompted by the registration form available on our Sites or Applications (the “Registration Data“), and (b) you are obliged to maintain and promptly update your Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account and refuse any and all current or future access to and/or use of the Sites and the Services (or any portion thereof).
10. Member Account, Password and Security. As a Registered User, you are required to choose a password, and provide your email address, and you may be asked for additional information regarding your account. You are responsible for maintaining the confidentiality and security of the password and all other account information, and you are fully responsible and liable for all access to and use of the Sites and the Services that occur under your password or account. You agree to (a) immediately notify us by e-mail to email@example.com of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you log out from your account at the end of each session. BB will not be liable for any loss or damage arising from your failure to comply with this section.
12. Security Components. You acknowledge and agree that the Sites and the Services, and the software embodied within the Sites and the Services, may include security components that permit digital materials to be accessed, used, and protected, and that use of these security components is subject to usage rules set by BB and/or content providers who provide content to BB. You may not attempt to override or circumvent any such security components and usage rules embedded in the Sites and the Services.
13. Subscription Fees and Payment. Access to and use of the Services is subject to a subscription fee (“Fee”). The Fee is payable in U.S. dollars or other currency as applicable. You will be required to provide your credit card number and other information at the time of your initial registration. Your credit card will automatically be charged at the time of your subscription or the end of your free trial, and regularly thereafter based on the terms of your subscription, and you hereby authorize BB to charge your credit card for the then-applicable subscription fee. The Fee is non-refundable except as provided in Section 28 below (“Term and Termination”).
BB reserves the right to change or modify the Fee or payment schedule and the related terms of the mechanics of the payment of the Fee (including, without limitation, increasing prices and charging a fee for upgrades) at any time. Plans priced in currencies other than U.S. dollars are subject to adjustment due to fluctuations in exchange rates. BB will use its reasonable best efforts to provide you with reasonable notice prior to making any fee changes or modifications, with the exception of exchange rate changes. If BB is for any reason unable to effect automatic payment via your credit card, BB will attempt to notify you via email and your account will be disabled until payment is received. You are responsible for notifying us of any changes to your credit card information and to update your information if your credit card has expired. BB may suspend, terminate and/or otherwise interrupt your access to the Services if you fail to so notify BB.
All Fees are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the Services by any federal, state, municipal or other governmental authority, all of which taxes you are required to pay except for taxes based on BB’s net income. You are responsible for obtaining and providing to BB any certificate of exemption or similar document required to exempt any transaction from sales, use or similar tax liability.
You agree to pay your account balance on time. You are responsible and liable for any costs and expenses, including attorney and collection fees, that BB may incur in its efforts to collect any remaining balances due from you. This paragraph will in no way limit any other remedies available to BB. You are required to notify us of any billing problems or discrepancies within sixty (60) days after they first appear on your credit card account statement by sending a written notice to firstname.lastname@example.org
If you do not so notify us within the time allowed, you waive any right to dispute such problems or discrepancies.
For subscriptions completed in our iOS mobile application(s), the following terms apply:
C. Free Trials. BB offers a free trial period, and/or a ramping up period where you are able to explore the scope of Services offered under subscription without charge or a fee (“Free Trial”). This Free Trial is reserved to new members and those parties who have not yet signed up for a subscription. Not all of the Sites, Services or functionality of such may be available during a Free Trial period. BB reserves the right to determine if you are eligible for a Free Trial and to discontinue any Free Trial without notice for any or no reason. BB also reserves the right to modify, cancel, and or limit a Free Trial without notice at any time. Each Free Trial and/or subscription term will begin on the day that you sign up for the Free Trial and will continue for seven (7) days, or any other period of time as authorized by BB. Your subscription will then convert to a Fee subscription automatically at the then monthly or annual rate (whichever is applicable) unless you or we terminate pursuant to these Terms. You are responsible for all fees related to your initial term as well as any renewal terms. If you wish to upgrade your subscription level or certain portions of such, please contact us via your account. Any discounts applied to a previous subscription or an initial term may not apply to a renewed subscription, including to any automatic renewals in any manner.
D. Pricing and Special Offers. The pricing of our Services may vary periodically. We cannot guarantee that the price of your subscription is the lowest available, or historically lowest or best, price. You will be charged in accordance with the billing terms you agreed to at the time you signed up. At certain times, we may offer special promotional offers (“Special Offers”) that are billed at a discounted rate. In these cases, you will begin to be billed at the time payment information is collected.
F. Quarterly and Annual Subscriptions. We may offer Subscriptions to the BB Site or other Services for a longer term (for example, 3 months, 6 months or even a year). These longer-term Subscriptions are charged in full upon purchase, and automatically renew for the same duration as the initial subscription term you selected (for example, if you initially purchased a 3 month subscription, your subscription would automatically renew for three months; 6 month subscriptions will automatically renew for six months, annual for a year, and so on). The amount due for the next renewal term will be due and immediately payable in full and charged as of the first day of such renewal term. If you purchased a subscription to one of BB’s mobile applications through the Apple Store, you can cancel by turning off auto-renewal through your iTunes account settings. This must be done 24 hours before the end of a free trial or subscription period to avoid being charged. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the free service.
G. Changes to Subscription Fees; BB may increase its subscription fees or ther fees for the BB Site effective the first day of a billing renewal by giving you notice of the new fees at least thirty (30) days before you are billed. If you have and do not cancel your subscription, you will be deemed to have accepted the new fees.
14. Cancellation; Term and Termination; Account Deletion
HOW TO CANCEL.
If you are accessing the BB Service through a non-affiliated third party application (including a mobile application such as iTunes), cancellation, uninstall and removal methods vary depending on your device or the marketplace through which you purchased or downloaded the Application. To uninstall and remove a BB mobile application, please use the application manager provided with your device or consult your device manual for reference. Additionally, if you purchased access or downloaded Applications through a third party marketplace, cancellation and refunds may be governed by such third party’s cancellation and payment policies. If you purchased your subscription through the Apple Store, you can cancel anytime by turning off auto-renewal through your iTunes account settings. This must be done 24 hours before the end of a free trial or subscription period to avoid being charged. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the free service.
ACCOUNT DELETION: You may delete your account at any time. We reserve the right, but are under no obligation to, to delete an account from the BB Service that remains inactive (i.e., the user fails to log in) for a continuous period of at least six (6) months.
TERMINATION FOR BREACH: BB may suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if BB determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage BB’s reputation or goodwill. If BB deletes your account for the foregoing reasons, you may not re-register for the BB Service. BB may block your email address and Internet protocol address to prevent further registration. BB is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. After your membership or subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by BB will terminate. In the event of account deletion for any reason, content that you submitted may no longer be available. BB shall not be responsible for the loss of such content.
14a. Content. The content available at the Sites and the Services generally consists of (a) content owned by BB, including but not limited to the trademarks, trade dress and “look and feel” of the Sites and content created and/or acquired and owned by BB (“BBContent”), (b) content owned by third parties and licensed to BB for specified uses on the Sites and the Services (“Third-Party Content”), and (c) content that may be posted and/or otherwise uploaded to the Sites and/or the Services by you (“User Content”). As between you and other Registered Users, however, the content posted by other Registered Users is considered to be “Third-Party Content.” All of the foregoing are collectively referred to as “Site Content.”
14b. Geographic Limitations. Due to certain licensing restrictions placed on our titles, some content may not be available in your geographic location, and therefore, cannot be viewed. If at any time you feel this inhibits your experience upon purchasing a BB subscription, please contact our customer service department and we will work with you in order to remedy the situation. You can reach customer service by email at email@example.com
15. Ownership of Content. BB does not claim ownership rights in any User Content that you post on the Sites or otherwise make available through the Services. Subject to the non-exclusive license contained in Section 16 below (“License to Your Content”), as between BB and you, you will retain all intellectual property rights that you may have in any User Content that originates with you.
16. License to Your Content. In order to be able to offer you the use of our Sites and the Services pursuant to this Agreement, you are required to grant a license to BB to use and distribute your User Content. This enables us to permit other Visitors and Registered Users to view and share your User Content, and to display your User Content in other places within the Sites. Accordingly, by posting, displaying, publishing, transmitting, or otherwise making available (individually and collectively, “posting”) any User Content on or through our Sites or the Services, you hereby grant to BB a non-exclusive (meaning you can license the User Content to other parties as well), fully-paid, royalty-free, perpetual, irrevocable, worldwide license (including the right to sublicense) to use, copy, modify, adapt, translate, create derivative works, publicly perform, publicly display, store, reproduce, transmit, distribute, and otherwise make available such User Content on and through the Sites and/or the Services, in print, or in any other format or media now known or hereafter invented, without any obligation of notification, compensation, attribution or consent. Notwithstanding the foregoing, we will not use your User Content to create commercial products such as books. For purposes of this section, “commercial products” does not include use on the Sites and the Services and/or the advertising, publicity, promotional and marketing materials for the Sites and the Services in any and all formats and media now known or hereafter invented. If you wish to remove any User Content from the Sites and/or the Services, the decision will be made by BB alone in its sole and absolute discretion, and our decision may depend on the type of User Content, the location and manner of posting, and other factors. You may contact us at firstname.lastname@example.org to request the removal of certain User Content you have posted, but BB (i)has no obligation to remove any such User Content, (ii)may choose whether or not to do so in its sole discretion, and (iii)makes no guarantee as to the complete deletion of any such User Content and copies thereof. In any case, a back-up or residual copy of any User Content posted by you may remain on BB’s servers after the User Content appears to have been removed from the Sites and/or the Services, and BB retains all rights granted in this section to all such remaining copies. You represent and warrant that: (i) you own all right, title and interest in all User Content posted by you on or through our Sites or the Services, or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your User Content on or through the Sites and/or the Services does not require the knowledge or consent of any third party and does not violate the privacy rights, publicity rights, copyrights, trademarks, patents, trade secrets, contract rights, confidentiality, or any other rights of any third party.
17. Prohibited Conduct. The Sites and the Services may include features that permit you to post User Content, which includes and applies to (but is not limited to) content of your own, comments on the User Content posted by other Registered Users, and communications with other Registered Users. Such User Content includes but is not limited to information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials. You acknowledge and agree that you shall not use the Sites and/or the Service to post or other transmit User Content that:
18. Responsibility for User Content. You, and not BB, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available via the Sites and/or the Services. BB does not control the User Content posted via the Sites and/or the Services and, as such, we cannot and do not guarantee the accuracy, integrity or quality of such User Content. You acknowledge and agree that, by using the Sites and the Services, you may be exposed to User Content that you deem offensive, indecent or objectionable. Under no circumstances will BB be liable in any way for any User Content, including, but not limited to, any errors or omissions in any user Content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Sites and/or the Services.
19. Rejection and/or Removal of User Content. You acknowledge and agree that BB may or may not pre-screen User Content posted on our Sites, but that BB shall have the right (but not the obligation) in its sole discretion to pre-screen, edit, refuse, and/or remove any User Content or portion thereof that is available via the Sites and/or the Services, in its sole and absolute discretion, for any reason, including but not limited to its determination that any such User Content is not appropriate for the Sites and/or the Services, or for no reason. Without limiting the foregoing, and by way of example only, BB shall have the absolute right to remove from the Sites and/or the Services any User Content that violates this Agreement or is otherwise objectionable in the sole discretion of BB, or to restrict, suspend, or terminate your access to all or any part of the Sites and/or the Services at any time, for any or no reason, with or without prior notice, and without liability. If you become aware of misuse of the Sites and/or the Services by any person, please contact BB by email at email@example.com.
20. Limited License. BB hereby grants to Registered Users a limited, personal, revocable, non-sublicensable license to display a single copy of the BB Content and the Third-Party Content located on or available through our Sites or Service (excluding any software code therein) solely for your single, personal, non-transferable and non-commercial use in connection with viewing our Sites and using the Services during the term of your registration. All such use is subject to the terms and conditions set forth in this Agreement and may be terminated by BB as set forth in this Agreement. Except for User Content posted by you, you may not copy,
store, modify, translate, publish, broadcast, transmit, distribute, perform, display, make available, or sell any Site Content for any purpose whatsoever.
21. Examples of Limitations on Use. Any non-commercial reuse of any portion of the Site Content by a Registered User that falls within what is allowed as “Fair Use” under the United States copyright and trademark law is permitted. In addition to the limitations set forth in Section 20 above (“Limited License”), and by way of example only, no commercial storage, use, reproduction or transmission of any Site Content is permitted under any circumstances. The Sites and the Services may not be used in connection for any commercial purposes except as specifically approved in writing and in advance by an authorized representative of BB. Unauthorized framing of or linking to any of our Sites is prohibited. Commercial advertisements and other commercial content, affiliate links, and other forms of solicitation may be removed by BB from the Sites and the Services without notice and may result in termination of registration and subscription and denial of access to and use of the Sites and the Services.
22. Health and Medical Concerns. Some of the Service and the Sites include information and instruction relating to exercise and fitness, and some of the products and services available through the Sites and the Services relate to exercise and fitness. You acknowledge and agree that the following warnings and disclaimers shall apply to all such information, instruction, products and services. Before participating in any exercise program or using any fitness products or services that may be described and/or made accessible in or through the Website and/or the Services, we strongly recommend that you consult with a physician or other healthcare provider. BB, its staff and the content-providers are not licensed medical care providers, are not rendering personal medical advice or treatment, and have no expertise in advising on, diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition.
As noted above, the Sites and the Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment. You acknowledge and agree that when participating in any exercise or exercise program, and/or when using any fitness products or services, there is the possibility of physical injury and/or death, and you assume the risk and responsibility for any such results.
You should never disregard medical advice or delay seeking it because of a statement you have read on the Sites and/or the Services. The Sites and the Services should not be used in lieu of advice given by qualified medical professionals such as your doctor or registered dietitian. It is important that the Sites and the Services are used only in conjunction with qualified medical guidance. If you know or suspect that you may be pregnant, have an eating disorder, have diabetes, or have any other physical or medical condition, it is imperative that you seek the advice of your doctor prior to using the Sites and/or the Services. You must always consult your doctor before beginning an exercise or dietary program. If you experience any discomfort or pain during an exercise routine you must immediately cease the activity and seek the assistance of a physician.
23. Reservation of Rights. BB Content and Third-Party Content are protected by copyright, trademark, patent, trade secret and other laws. BB and its third-party licensors owns and retains their respective rights, title and interest in and to their respective content subject only to the limited licensed granted to Registered Users as set forth above.
You acknowledge that the BB Site and Services contain software, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, “Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All BB-generated content and content developed for BB by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, BB owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the BB Site. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the application (but never the Content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with this Agreement. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.
The Brooke Body name, logos and affiliated applications and technologies are the exclusive property of BB. All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
BB owns and retains all proprietary rights in the Site and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or through the Service, without first obtaining the prior written consent of BB or, if such property is not owned by BB, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
25. International Use. Due to the global nature of the Internet, you acknowledge and agree that you are obliged to comply with all applicable laws, rules and regulations regarding the access to and use of the Sites and the Services. By way of example only, you acknowledge and agree that you are obliged to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, and that restrictions on access to and/or use of some Site Content may apply to users based on their place of domicile, residence and/or use.
26. Take-Down Notices Under the DMCA. BB will receive and evaluate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). Written notices of claimed copyright infringement must be in strict compliance with all terms and conditions of the DMCA and must be submitted according to the procedures set forth in the DMCA to the following Designated Agent for BB:
Full Address of Designated Agent to Which Notification to BB Should Be Sent:
BB Body, Inc.
c/o Gelfand, Rennert & Feldman, LLC
1880 Century Park East, #1600
Los Angeles, CA 90067
Email of Designated Agent:
27. Registered User Disputes. You are solely responsible for your interactions with other Registered Users. BB reserves the right, but has no obligation, to monitor disputes between you and other Registered Users.
28. Term and Termination. This Agreement begins on the date you first use the BB Service and continues as long as you have an account with us. This Agreement, as it may be modified from time to time, shall remain in full force and effect for so long as it is posted on any of the Sites or until terminated by BB or by you. You may terminate your status as a Registered User and cancel your account at any time and for any reason, by notifying us by email at firstname.lastname@example.org, but any such termination and cancellation will be effective only after BB has processed the request. If you cancel your account prior to the expiration of your pre-paid subscription period, you will forfeit the Fees paid for any unused portion of your subscription, which are non-refundable. However, you will be able to continue viewing premium content until the expiration of your current pre-paid subscription period. You also acknowledge and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with BB.
BB reserves the right to suspend or terminate your status as a Registered User, cancel your account, and disable your access to the Sites and Services at any time, with or without notice to you, with or without cause, and without liability to you. BB shall have no liability to you or any third party because of such suspension or termination or related action for any reason except as follows: (a) If BB elects do so with cause, then no refund of any unused portion of a pre-paid subscription is owing, and (b) if BB elects to do so without cause, then BB will refund any unused portion of a pre-paid subscription.
The following sections shall survive any termination of this Agreement, your account, and/or your use of the Service: 2,3,4,11,13,15,16,17, 22,23,29, 30,31,32,33, 34, 35, 36,37,38,39,40 and 41.
Upon suspension or termination, BB shall have no obligation to save any User Content that you may have posted or otherwise provided, and we reserve the right to permanently delete and destroy any of your personal information and/or User Content.
29. Disclaimer of Warranties. You acknowledge and agree that the Sites and the Services are offered without warranties of any kind whatsoever by BB and/or the providers of Site Content. The disclaimer of warranties includes, but is not limited to, the following.
(a) Your use of the Sites and the Services is at your sole risk. The Sites and the Services are provided on an “as is” and “as available” basis. BB and its parent, subsidiaries, affiliates, successors and assigns, and their respective shareholders, officers, directors, employees, agents, partners, licensors, vendors and contractors (collectively, the “BB-Related Parties”) expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, with respect to the service, the websites, and any third party websites with which they are linked.
(b) The BB-Related Parties are not responsible or liable for any loss, damage, injury or health problems that may result from your use of the Site Content and/or other aspects of the Sites and/or the Services, including but not limited to training programs, recipes, products, services, events and/or information that you may learn about on the Sites and/or the Services, and/or any action or inaction on your part as a result of information you have obtained from the Sites and/or the Services. By way of example only, if you engage in any exercise or diet program that you receive or learn about through the Sites and/or the Services, and/or if you use any product or service that you receive or learn about through the Sites and/or the Services, you agree that you do so voluntarily, after consulting an appropriate health professional of your choice, and at your own risk, and you agree to release and discharge the BB-Related Parties BB from any and all claims or causes of action, known or unknown, arising out of the foregoing.
(c) The BB-Related Parties make no warranty that the Sites or the Services, the Site Content, and/or the information, products and services available through the Sites or the Service will meet your expectations or requirements, or that you will achieve any particular results from the use of any of the foregoing, or that the Sites or the Services will be uninterrupted, timely, secure, error-free, or free of any harmless components (including viruses, malware, spyware, or comparable components.
(d) You expressly assume the risk, by way of example, of deletion, non-delivery or failure to store postings of User Content, communications, personalized settings, or data, and you acknowledge that the BB-Related Parties make no warranties regarding the foregoing.
(e) Any material downloaded or otherwise obtained through the use of our Sites or the Services is accessed at your own discretion and risk, and you will be solely responsible for any loss or damage to your computer system or loss of data that results from the download of any such material.
30. Waiver of Claims. You hereby waive, release and discharge the BB-Related Parties from and against any claims that you may be entitled to make by reason of any use of your User Content authorized under this Agreement and/or by reason of your participation in any of the communications and social networking features of the Services, including but not limited to, and by way of example only, any claims based on copyright infringement, trademark infringement, rights of privacy or publicity, defamation and otherwise.
31. Limitation of Liability. To the fullest extent permitted by applicable laws, the BB-Related Parties will in no event be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from or in connection with any use of the Sites and/or the Services, and/or any website with which they are linked, and/or any content, information, products or services accessible through the Sites and/or the Services, even if any of the BB-Related Parties have been advised of the possibility of such losses or damages. Notwithstanding anything to the contrary contained herein, the aggregate liability of the BB-Related Parties to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to BB for the Services.
AS NOTED HEREIN NEITHER BB, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL BB ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:
EXCEPT FOR LIABILITY ARISING OUT OF BB’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR ANY APPLICABLE SUBSCRIPTION AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO BB DURING THE SIX (6) MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND BB. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY BB TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BB. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Except for actions for nonpayment or breach of proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either you or BB more than one (1) year after the cause of action has accrued.
32. Severability. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you. In any such case, and/or if any terms or conditions of this Agreement are held to be invalid for any reason whatsoever, this Agreement shall remain in full force and effect on its remaining terms and conditions of this Agreement unless and until terminated by BB. Furthermore, if any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the intentions of the parties as reflected in the invalidated provision.
33. Indemnity. You agree to indemnify, defend, and hold harmless the BB-Related Parties from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your breach of the terms of this Agreement, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. BB will use its reasonable best efforts to 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.
34. Additional Terms. We may also require you to follow additional rules, guidelines or other conditions (“Additional Terms”) in order to participate in certain promotions or activities available through our Sites, to obtain certain premium Site Content through our Sites, and/or for other reasons. In addition, certain Additional Terms will govern your subscription to the Services and any purchases you make through the online store. These Additional Terms will be posted on the relevant portions of our Sites or on the portions of our Sites that describe the specific promotions, Content, or activities. These Additional Terms are incorporated by reference in this Agreement, and you agree to comply with them when you participate in those promotions, purchase items from our online stores, or otherwise engage in activities governed by such Additional Terms.
35. Modification and Discontinuation. We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently the Sites and/or the Services, or any portion thereof, with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Sites and/or the Services.
35. Choice of Law and Forum. This Agreement and the relationship between you and BB shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions. You and BB agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Los Angeles, California
37. No Waiver. The failure of BB to exercise or enforce any right and/or remedy under this Agreement shall not constitute a waiver of such right and/or remedy.
38. Statute of Limitations. You acknowledge and agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Sites, the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
39. Relationship of the Parties. You and BB acknowledge and agree that they are independently contracting parties dealing at arm’s length with each other in connection with the licensing of intellectual property rights and the provision of services. No partnership, joint venture, joint authorship, employment, fiduciary, agency or other relationship is created between them.
40. Binding on Successors. This Agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors and/or assigns of the parties, as applicable. For avoidance of doubt, you acknowledge and agree that BB is fully authorized to assign, sublicense and/or otherwise convey and transfer this Agreement and/or any of its rights under this Agreement at any time, in its sole and absolute discretion, and without compensation of any kind to you.
41. Contact; Notices and Questions. If you have any questions regarding this Agreement, please contact us by email at email@example.com, or by mail at BB Body, Inc. , c/o Gelfand, Rennert & Feldman, LLC
1880 Century Park East, #1600 Los Angeles, CA 90067. Except as otherwise specified elsewhere in this Agreement, notices t o BB may be given at the foregoing email and postal addresses, and notices to you may be given at the address provided to us at the time of registration and/or the purchase of goods and services from BB.
42. Apple App Store. By accessing the Service through a device made by Apple, Inc. (“Apple”), you specifically acknowledge and agree that:
transferable right to install the mobile applications on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Service.
43. Your Use and Obligations. Use of the Site is subject to these Terms and is only permitted within normal access or use of the Site and in conformance with any Subscription Agreement you may have with us. Your access to or use of the Site grants you no right or license to reproduce, or otherwise use any BB or third-party trademarks except as expressly set forth herein. All goodwill generated from use of BB’s marks will inure to our exclusive benefit. Other company, product, and service names and logos used and displayed via the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to BB.
You may access and use the Site only in compliance with these Terms, your Subscription Agreement, and all applicable local, state, national, and international law, rules, and regulations. Absent breach by you of any of these Terms, and unless otherwise expressly permitted by BB, you are granted a limited, personal, non-transferable, non-sublicensable, revocable license to access our Site and, in connection with your Subscription Agreement, use the Site, and, as permitted, to electronically view, copy (except where prohibited without a license), and print to hard copy portions of the Site Materials.
However, in no case whatsoever shall you:
Further, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through our Site any of the following material or information:
Any use of the Site or Site Materials not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. If you wish to make any use of material on the Site other than as set out in this section, please address your request to: firstname.lastname@example.org, You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any Site Materials, except as follows:
Access to certain areas of our Site may be restricted. Any access to or use of the Site or the Site Materials other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms and any Subscription Agreement you have with us. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. We reserve the right to restrict access to areas of our Site, or indeed our whole Site, at our discretion. We reserve the right to revoke your authorization to access or use the Site if we believe in good faith that you have violated these Terms or any laws whatsoever. Unless explicitly stated herein, nothing in these Terms or any Subscription Agreement you have with us will be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. The license granted by these Terms is revocable at any time. You acknowledge and agree BB may conduct an audit of all your records that pertain to the Site within the scope of the license granted herein electronically remotely at any time with respect to information or records available to us based on your interaction with us, or in person, provided that we give you reasonable notice of said audit and conduct said audit during standard business hours between 8:00 a.m. to 5:00 p.m. or as otherwise agreed by you and us.
44. Commenting and Feedback BB may allow posting of comments on its Site, such as in its “feedback or user interface” section or discussion forums. Any user failing to comply with the Terms may be expelled from and refused continued access to, the ability to post comments or material in the future. BB or its designated agents may remove or alter any user-created material at any time for any reason. Information and material posted within these public forums may be provided by BB, our outside contributors, and/or by users not connected with us, some of whom may employ anonymous usernames. BB expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information, or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, or representatives be liable for any loss or damage caused by your reliance on information obtained through these posted comments. The opinions expressed by anyone other than BB itself are solely the opinions of those parties, and do not reflect the opinions of BB or any of its subsidiaries or affiliates. You also acknowledge and agree that any feedback, including, but not limited to, suggestions, comments, ideas, or other information, provided by you in the form of email or other submissions (collectively, “Feedback”) to us is non-confidential and you hereby grant BB, its affiliates, subsidiaries, successors, and assigns an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use such Feedback for any purpose without any compensation or attribution to you.