Platform Terms & Conditions
Working Against Gravity Terms & Conditions
PLATFORM TERMS AND CONDITIONS
Last updated: April 6th, 2023
YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS OR BY OTHERWISE ACCESSING OR USING THE PLATFORM, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR THROUGH THE PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.
You acknowledge and agree that you have the legal power and authority to enter into these Terms. If you are entering into these Terms on behalf of a company or other entity, such as a Business, you represent that you have the authority to bind such entity to the Terms, in which case the terms "you" or "your" refers to such entity. To the extent these Terms conflict with any other documentation related to the Platform, these terms shall govern.
WHERE APPLICABLE, THE SERVICES ARE MEANT FOR INFORMATIONAL PURPOSES ONLY. THE SERVICES ARE NOT INTENDED AS SPECIFIC MEDICAL, LEGAL, COMMERCIAL, FINANCIAL, TAX OR OTHER PROFESSIONAL ADVICE. USE OF THE INFORMATION FROM ANY OF THE SERVICES IS AT YOUR OWN RISK.
THE INFORMATION ON THIS PLATFORM AND COACHING SERVICES OFFERED ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO REPLACE A ONE-ON-ONE RELATIONSHIP WITH A QUALIFIED HEALTH CARE PROFESSIONAL SUCH AS A PHYSICIAN.
YOU ARE URGED AND ADVISED TO SEEK THE ADVICE OF A PHYSICIAN BEFORE BEGINNING ANY WEIGHT LOSS EFFORT OR EXERCISE REGIMEN.
IF YOU HAVE SPECIFIC QUESTIONS ABOUT ANY MEDICAL MATTER, YOU SHOULD CONSULT YOUR DOCTOR OR OTHER PROFESSIONAL HEALTHCARE PROVIDER.
YOU SHOULD NEVER DELAY IN SEEKING MEDICAL ADVICE, DISREGARD MEDICAL ADVICE, OR DISCONTINUE MEDICAL TREATMENT BECAUSE OF INFORMATION ON THIS PLATFORM.
COMPANY ENCOURAGES YOU TO MAKE YOUR OWN HEALTH CARE DECISIONS BASED UPON YOUR OWN RESEARCH AND IN PARTNERSHIP WITH A QUALIFIED HEALTH CARE PROFESSIONAL. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
THIS PLATFORM AND THE COACHING SERVICES OFFERED BY COMPANY ARE ONLY INTENDED FOR USE BY HEALTHY ADULT INDIVIDUALS.
Your Use of the Platform
The Platform is offered to entities and individuals who are 16 years of age or older. If you are between the ages of 16 years old and 18 years old you must have submitted to us a consent form, available here, signed by a parent or guardian, available here. If you do not qualify, do not use the Platform. By using the Platform, you represent and warrant that you are 18 years of age or older and otherwise meet all eligibility requirements herein.
Subject to your compliance with these Terms, you are granted a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right to access and use the Platform solely to receive or provide Services through the Platform. Such right is subject to these Terms, including but not limited to, the use limitations and restrictions in this Section 1 and Sections 3 and 6, below. Except for the limited right expressly granted to you in these Terms, Company and its licensors expressly reserve all other rights and licenses in and to the Platform. Company reserves the right to change, modify, or discontinue the Platform or any portion of the Platform, including any and all content, at any time, without notice to you.
By creating an account on the Platform, you agree to provide true, accurate, current, and complete information. You agree not to create an account using a false identity or if you have previously been removed or banned from the Platform. You are responsible for maintaining the confidentiality of your Platform account information, including your username and password. You are responsible for all activities that occur on or in connection with your Platform account and you agree to notify us immediately of any unauthorized access or use of your Platform account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Platform account.
Except for Your Content (as defined below), all materials contained on, in, or available through the Platform, including all information, data, text, photographs, images, graphics, logos, button icons, sound, music, audio clips, data, forms, graphs, videos, typefaces, software, the selection and arrangement thereof, all source code, software compilations, and other materials and any derivative works thereof (“Our Content”) are owned, controlled or licensed by or to Company and are protected by copyright, trademark, patent and other intellectual property laws. Our Content may not be copied, used or imitated, in whole or in part, by you, without our express written consent. Our Content includes the Company name and logo and other related names, design marks, product names, feature names and related logos (including, without limitation, trademarks). In addition, the look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, without the express prior written permission of Company. You agree to abide by all applicable copyright and other laws. We do not convey, through allowing access to the Platform, any ownership rights in Our Content. These Terms will govern any upgrades provided by us that replace and/or supplement the original Platform unless such upgrade is accompanied by separate terms, in which case such updated Terms will govern.
Rights Concerning Your Content
The Platform allow you to post, disseminate, submit, transmit, share, and/or publish various materials and information, including (without limitation) contact information, your fitness or nutrition experiences, fitness routines, plans or schedules, information about your height and weight, information about food consumption, photographs of yourself, and fitness and nutrition goals and habits (“Your Content” or “Client Content” or “Coach’s Content” as applicable). Your Content includes, but is not limited to, the information you provide or make available to the Company in connection with your use of the Platform. You represent and warrant that Your Content does not and will not include any nudity that may be considered pornographic.
You acknowledge and agree that you are solely responsible for Your Content and the consequences of posting, disseminating, submitting, transmitting, hosting, sharing and/or publishing and permitting others to download and use Your Content on and/or to the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all of Your Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to us the rights in Your Content as contemplated under these Terms; and (b) neither Your Content nor your posting, uploading, publication, submission or transmittal of Your Content or our use of Your Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. While the Company has no obligation to do so, you agree that the Company may proofread, summarize or otherwise edit and/or withdraw Your Content, and you understand it remains your sole responsibility to monitor Your Content and ensure that such edits to Your Content are accurate and consistent with your representations and warranties in these Terms.
You further acknowledge that Your Content will be shared with and is viewable by any Coach assigned to you, temporarily or otherwise, or any Platform administrator including from the Company or a Business if you are using the Platform through such Business. In the case where you are using the Platform through affiliation with a Business, you grant such Business and any Coach also affiliated with such Business a nonexclusive right and license to use Your Content solely as necessary for the Business or Coach (as applicable) to provide the Coaching Services through the Platform and for no other purpose. Any use of Client Content by Coaches and such Business for purposes other than as expressly permitted herein is strictly prohibited.
Unless otherwise agreed, you or your licensors own Your Content that you submit to us through the Platform. For the avoidance of doubt, Coach’s Content submitted by Coaches employed by the Company shall be owned by the Company.
The Company will cooperate with law enforcement or a court order requesting or directing Company to disclose the identity of anyone posting any information or material prohibited by these Terms. Company may also disclose such information if such disclosure is reasonably necessary to protect the rights, property or personal safety of Company, its clients or the public. You further acknowledge that Company has the right (but not the obligation), in our sole discretion, to prescreen, pre-approve, refuse, and/or remove from the Platform, without prior notice, any of Your Content that violates these Terms.
The Company is not liable or responsible for any errors in Your Content. For purposes of clarity, Your Content does not include any aggregated data about the use or operation of the Platform or its users. You are solely and exclusively responsible for ensuring that the collection and sharing of Your Content complies with all applicable privacy laws. If you choose to connect your third-party accounts to the Platform, then you agree that Company may share Your Content with such third-party services (such as MacrosFirst, etc.). Company shall not be responsible for any such third-party access to or use of Your Content.
All feedback, suggestions, ideas and other submissions disclosed to Company in connection with your use of the Platform (collectively, "Feedback") will be Company's property. Such disclosure of Feedback will constitute an assignment to Company of all worldwide rights, titles and interests in all copyrights and other intellectual property in the Feedback. Company will be under no obligation to maintain any Feedback in confidence, pay any compensation for any Feedback or respond to any Feedback.
Use Limitations and Restrictions
You may not use the Platform in any manner not specifically authorized hereunder or in any way that is against any applicable laws or regulations. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to these Terms may cause Company and its licensors irreparable injury for which there may be no remedy at law, and you agree that Company and its licensors' remedies for breach of these Terms may be in equity by way of injunctive or other equitable relief.
In connection with your use of the Platform and with regard to Your Content, you will not: (i) promote or otherwise engage in illegal or unlawful activity, violence or hate speech; (ii) disparage or defame any person, entity, brand, or business; or (iii) otherwise discriminate against any person.
In addition, you acknowledge and agree that, except as otherwise authorized by Company in writing, you will not:
create, develop, license, install, use or deploy any third-party software or services to circumvent, enable, modify, or provide access, permissions or rights to work around any technical limitations in the Platform. Any attempt to do so is a violation of our rights. If you breach this restriction, you may be subject to prosecution and damages;
license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in or otherwise transfer any rights to, or commercially exploit, the Platform or Our Content;
copy, reproduce, republish, upload, post, transmit or distribute the Platform or Our Content;
modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or display, or create derivative works, compilations or collective works based on the Platform or Our Content;
knowingly or negligently permit other individuals or entities to use or copy the Platform or "frame" or "mirror" the Platform on any other server or wireless or Internet-based device;
access the Platform to (i) build a competitive product or service;(ii) build a product using similar ideas, features, functions or graphics of the Platform; (iii) copy any ideas, features, functions or graphics of the Platform; (iv) monitor its performance or functionality; or (v) for any other benchmarking or competitive purposes;
attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of Company or its customers or suppliers, or those of any other party;
breach the security of another user or system on the Platform or of the Company or attempt to circumvent the user authentication or security of any host, network or account on the Platform, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
attempt to probe, scan or test the vulnerability of a system, account or network of Company or its customers or suppliers, or any Company product or service;
interfere, or attempt to interfere, with service to any user, host or network including, without limitation, mailbombing, flooding and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, software included in the Platform;
forge any TCP-IP packet header or any part of any header information, and/or falsify, alter, remove, or modify address information or e-mail headers in circumvention of the security of the Platform;
collect responses from unsolicited bulk messages or falsify references to Company or the Platform, by name or other identifier, in messages;
impersonate any person or entity, engage in sender address falsification, forge anyone else's digital or manual signature, or perform any other similar fraudulent activity;
imply, suggest or state that the Company endorses any Coach (other than a Coach employed by the Company), Business, Coaching Services, or user of the Platform, without express written authorization from the Company;
restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Platform, including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others' ability to use, send or retrieve information;
restrict, inhibit, interfere with or otherwise disrupt or cause a performance degradation to the Platform or any Company (or Company supplier) host, server, backbone network, node or service;
create or use any program, tags, markers, bots, mousetraps, hijackers or other similar computer routines or sub-routines to automatically access or manipulate the Platform; or
knowingly: (i) send or transmit through the Platform spam or otherwise duplicative or unsolicited messages in violation of applicable laws; or (ii) send or store through the Platform infringing, obscene, threatening, libelous or otherwise unlawful or tortious material (including through Your Content), including material harmful to children or violative of third-party privacy rights.
The Platform is controlled and operated by Company in the United States and is not intended to subject Company or its affiliates to the laws or jurisdiction of any state, country or territory other than those of the United States. Company does not represent or warrant that the Platform or any part thereof is appropriate or available for use in any jurisdiction other than the United States.
Termination; Suspension of Platform
Company may terminate your use of the Platform if you breach or otherwise fail to comply with these Terms. In addition, Company may issue a warning regarding, temporarily suspend, indefinitely suspend or terminate your access to or right to use the Platform or any part of the Platform at any time in its sole discretion without notification. Upon termination or suspension, you will no longer have access to and may no longer use the Platform.
Copyright Infringement and the Digital Millennium Copyright Act
We respect the valid intellectual property rights of others. We will respond to allegations of copyright infringement with respect to content or materials on our Platform in accordance with the Digital Millennium Copyright Act, 17 U.S.C. §512(c)(2) (the “DMCA”).
If you have reason to believe that material on this Platform infringes your copyright or the copyright of someone on whose behalf you are authorized to act, please send a notice by mail or email to the DMCA Designated Agent, whose contact information is listed below, requesting that the infringing material be removed. The notice must contain the following information:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright;
b. A description of the work claimed to have been infringed, or a representative list of such works if the notice is intended to cover multiple works on the Platform;
c. Identification of the allegedly infringing material and where the material is located on the Platform;
d. Your contact information, including your name, address, telephone number, and email address;
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 notice is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
Pursuant to the Digital Millennium Copyright Act, our DMCA Designated Agent to receive notices and counter notices of claimed infringement is:
Please send this written notice to our designated agent as follows:
Harry and Lloyd’s, LLC
Attn: DMCA Agent – Legal Department
P.O. Box #374, Oak Creek, WI 53154
We reserve the right to remove any infringing material that we believe in good faith to be copyrighted material that is used without authorization by a user of the Platform. We also reserve the right to suspend or delete the account of any repeat offender.
By using the Platform, you agree to defend, indemnify and hold us, our affiliates, partners, licensors, officers, members, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from (a) your use of the Platform; (b) your violation of the Terms; (c) Your Content; (d) your interaction with any other user of the Platform, including any Coach, Business, or Client; or (e) the request or receipt or offer or provision of Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) (collectively, “Indemnified Matters”). We shall control the defense of any Indemnified Matters through counsel of our choice.
It may be necessary for Company to perform scheduled or unscheduled repairs, maintenance or upgrades and such activities may temporarily degrade the quality of the Platform or result in a partial or complete outage of the Platform. Company provides no assurance that you will receive advance notification of such activities or that the Platform will be uninterrupted or error-free. Any degradation or interruption of the Platform will not give rise to a refund or credit of any fees paid by you.
Disputes Between or Among Clients, Coaches, and Businesses
In the event a dispute regarding an interaction related to the Platform and/or Coaching Services, a Coach or a Business, you acknowledge and agree that the Company is under no obligation to become involved in or impose resolution in any dispute between or among users or any third party. You agree that Company has no responsibility for any liability, damages or harm resulting from any such dispute.
BY USING THE PLATFORM, YOU UNDERSTAND AND AGREE THAT ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF OTHER CLIENTS OF THE PLATFORM, COACHES, OR OTHER THIRD PARTIES, INCLUDING BUSINESSES WILL BE LIMITED TO CLAIMS AGAINST THOSE PARTICULAR THIRD PARTIES. YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM COMPANY WITH RESPECT TO SUCH ACTIONS OR OMISSIONS.
IN EXCHANGE FOR THE PLATFORM PROVIDED BY THE COMPANY AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS ACKNOWLEDGED, YOU EXPRESSLY AGREE TO RELEASE THE COMPANY, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, PARTNERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE, EXCEPT THAT THIS RELEASE DOES NOT APPLY TO CLAIMS BY YOU DIRECTLY ARISING OUT OF THE COMPANY’S MATERIAL BREACH OF THIS AGREEMENT, OR TO THE EXTENT THE FOREGOING RELEASE IS PROHIBITED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Payment for the Services
a. Fees for Services. Client agrees to pay all amounts user owes when due as required by the Services, including payments due to the Company or due to a Business. In some cases, the Platform facilitates payments between Businesses and Clients and Clients and the Company (“Platform Payments”) through our payment processing partner Stripe. When a Platform Payment is made between a Client and Business, the Company is not a party to any such transactions and does not handle funds on behalf of the Client or Business.
Communications through the Platform and with Other Platform Clients and Coaches
You understand that all communications you send to a Coach as a Client, or sent to a Client as a Coach, will be processed through the Platform, and you give your consent to the Company to pass through such communications to their intended recipient. All communications by and between Clients and Coaches shall be considered Your Content or Coach’s Content, as applicable, and are subject to the restrictions on such content as stated in these Terms.
Disclaimer Related to Other Platform Clients, Coaches, Coaching Services, or Businesses
The Company does not endorse any Coach (other than a Coach employed by the Company), Coaching Services, Business, or Client. The Company is not a party to any agreements between or among Coaches or Businesses. No agency, partnership, joint venture, or employment is created as a result of the Terms or any Client’s, Coach’s, or Business’s use of any part of the Platform, including but not limited to any Coaching Services, or other services. Neither Company nor any Clients, Coaches or Business using the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. All users of the Services, including Coaches and Businesses, are required by these Terms to provide accurate information, and although Company may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations or warranties about, confirm, or endorse any Coaching Services or any user, Coach or Business or their purported identity or background, regardless of the specific Coaching Services or other services they are using or providing or any involvement by Company personnel in providing or scheduling those services.
Any reference on the Platform to a user being licensed or credentialed in some manner, or “certified eligible” (or similar language) designations indicates only that the user has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Company and is not verification of their identity and whether they or their Coaching Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other user. The Company has no responsibility for any liability, damages or harm resulting from your interactions with other users of the Platform, including Coaches or Businesses.
Disclaimer of Warranties
THE PLATFORM ISPROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, WE SPECIFICALLY DISCLAIM, FOR THE AVOIDANCE OF DOUBT (ON OUR, OUR SUBSIDIARIES’, LICENSORS’ AND/OR OUR AFFILIATES’ BEHALF), ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES: (i) CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, SECURITY, TIMELINESS, QUALITY, USEFULNESS, INTEROPERABILITY OR CONTENT OF THE SERVICES; (ii) OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PLATFORMOR OUR CONTENT; AND (iii) REGARDING THE PROVISION OF THE PLATFORM. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE PLATFORM, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. WE DO NOT WARRANT OR GUARANTEE THAT THE PLATFORMWILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT DEFECTS IN THE PLATFORMWILL BE CORRECTED. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PLATORM.
COMPANY DOES NOT WARRANT ANY COACH’S OR BUSINESS’S PERFORMANCE, COACHING SERVICES, OR THE QUALITY OF GOODS, MATERIALS, EQUIPMENT OR SERVICES FURNISHED BY THE COACH OR BUSINESS OR OTHERWISE USED TO PERFORM THE SERVICES. THE COMPANY DOES NOT CONTRACT FOR OR PERFORM, AND IS NOT RESPONSIBLE FOR, ANY OF THE COACHING SERVICES REQUESTED BY A CLIENT. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS EXPLICITLY STATED HEREIN, WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY CLIENT, COACH OR BUSINESS OR THEIR ABILITY TO PROVIDE SERVICES COMPLIANT WITH A CLIENT’S REQUEST. YOU EXPRESSLY ACKNOWLEDGE THAT WE MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY OF SERVICES RENDERED BY THE PLATFORM OR ANY COACH OR BUSINESS.
Limitation of Liability
IN NO EVENT WILL COMPANY OR ITS OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF INFORMATION, LOSS OF PROFITS AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, RELIANCE ON, OR INABILITY TO USE THE PLATFORM OR OUR CONTENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE PLATFORM. GIVEN THAT SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY (INCLUDING OUR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, PARENTS, AND AFFILIATES) SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY (INCLUDING OUR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, PARENTS, AND AFFILIATES) WITH RESPECT TO THE USE OF THE PLATFORM EXCEED THE AMOUNT OF $100.00 U.S. DOLLARS. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE PLATFORM OR OUR CONTENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY WILL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A FEE FOR THE PLATFORM AND ACCESS PROVIDED HEREUNDER.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
BINDING ARBITRATION AND CLASS ACTION WAIVER
YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND COMPANY ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF COACHING SERVICES OR OTHER SERVICES FROM THE PLATFORM WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 20 (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Terms are void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
The Company will be responsible for paying any individual consumer’s arbitration/arbitrator fees. If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR THE COMPANY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT, IN ARBITRATION, OR OTHERWISE TO PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal shall not consolidate more than one (1) person's claims and shall not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction identified in the Section titled “Governing Law,” below.
If any provision of this “Binding Arbitration and Class Action Waiver” Section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Company may give notice by means of a general notice via the Platform, electronic mail to your e-mail address on record in Company’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Company’s account information. Such notice will be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Company (such notice will be deemed given when received by Company) at any time by the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Harry and Lloyd’s, LLC, Attn: DMCA Agent – Legal Department, P.O. Box #374, Oak Creek, WI 53154.
Modification to Terms
Company reserves the right to modify the Terms or its policies relating to the Platform at any time, effective upon posting of an updated version of the Terms on www.getseismic.com and www.workingagaisntgravity.com. All changes will be effective immediately upon their posting on such websites. If we make a material change to these Terms, we will endeavor to notify you of that change via email, if we have your email address on file. By accessing the Platform after any changes to these Terms, you agree to all such changes, regardless of whether you receive an email.
These Terms shall be governed and construed in accordance with the laws of the State of Wisconsin, without regard to its conflict of law provisions. You consent to the exclusive jurisdiction and venue of the federal and state courts located in the State of Wisconsin, Milwaukee County for any action arising out of or relating to these Terms.
Company shall not be liable to you for any failure to perform any of its obligations under these Terms during any period in which such performance is delayed by circumstances beyond Company’s reasonable control including, but not limited to, fire, flood, war, embargo, strike, pandemic or wide-spread public health crisis, riot, unavailability of the internet or the intervention of any governmental authority.
You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under these Terms. We may transfer, assign, sublicense or pledge, in any manner whatsoever, any of our rights and obligations under these Terms to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent.
Entire Agreement; Additional Terms
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. In the event that any provision of these Terms is inoperative or unenforceable for any reason, such provision shall be enforced to the maximum extent permitted by law and the invalidity of such provision shall not affect the enforceability and validity of remaining provisions of the Terms. No independent contractor, partnership, joint venture or employer-employee relationship is intended or created.
If you have any questions regarding these Terms or the Platform, please contact us at firstname.lastname@example.org.
In addition to the terms in Sections 1 through 27 of these Terms, a Client is subject to the following additional terms.
Cancellations, Refunds and Payment Terms
To the extent you are using the Platform through affiliation with the Company, by subscribing to the Platform, you are agreeing to an initial 3-month commitment (“Initial Commitment”) and to pay all subscription fees due and owing for such Initial Commitment. Once the Initial Commitment has expired, your membership is on a month-to-month basis, and you can cancel at any time provided that your membership will continue until the end of the current month, unless you request an immediate cancellation in which case you will receive a pro-rated refund of any fees for the remainder of the month you cancelled in. To cancel your membership, you must send an email to email@example.com simply stating that you wish to cancel. All sales are final, and no refunds are available. The effectiveness of our program is largely determined by you and your commitment.
To the extent you are using the Platform through affiliation with the Business, the Business shall determine any subscription fees and you are subject to the Business’ cancellation and refund policies.
As a Client making a Platform Payment, you authorize Stripe to charge your preferred payment method for amounts you owe when they are due, whether they are recurring or one-time payments. You must keep all payment information you provide us up-to-date, accurate and complete. Do not share your payment card, bank account or other financial information with any other user. We take steps to secure all payment methods and other personal financial information, but we expressly disclaim any liability to you, and you agree to hold us harmless for any damages you may suffer as a result of the disclosure of your personal financial information to any unintended recipients.
Use of Coach’s Content
You represent and warrant that you will use Coach’s Content for your own personal use and solely as necessary to receive Coaching Services through the Platform and for no other purpose.
Disputes Between or Among Clients, Coaches, and Businesses
To the extent you are a Client using the Platform or a Coach through any type of affiliation with a Business, Company is solely providing the Platform for your use and convenience. You acknowledge and agree that the Company does not oversee, benefit from or have any relationship with any person providing Coaching Services for you through the Platform or otherwise. The Company disclaims all liabilities related in any way to and you acknowledge you are solely responsible for your use of Coaches or a Business to receive the Coaching Services or any other services related to or through the Platform. You hereby agree to indemnify, defend, and hold harmless the Company from any claims, losses, or liabilities arising from or in connection with claims filed by a Business through which you are using the Platform or by a Coach affiliated with such Business related in any way to your use of the Platform or Coaching Services, including any Coach’s Content or other content therein.
In addition to the terms in Sections 1 through 27 of these Terms, a Coach is subject to the following additional terms. To the extent the Terms in this Agreement, including in Sections 31 and 32, conflict with any employment agreement with Company, such terms in the employment agreement shall govern.
Access to and Use of Client Content
You represent and warrant that you will use Client Content solely as necessary to provide Coaching Services through the Platform and for no other purpose.
Disputes Between or Among Clients, Coaches, and Businesses
To the extent you are Coach employed by, an agent or independent contractors of, or in any affiliated or using the Platform through a Business, you acknowledge and agree that the Company does not oversee, benefit from or have any relationship with you through the Platform or otherwise. You further agree and acknowledge that Company is not a joint employer and is in no way responsible for the payment of wages or taxes, or any other obligations owed to you from a Business or any third party for performance of Coaching Services and other services through the Platform. The Company disclaims all liabilities related in any way to, and you acknowledge you or the Business you are affiliated with are responsible for, your providing Coaching Services or any other services related to the Platform. You hereby agree to indemnify, defend, and hold harmless the Company from any claims, losses, or liabilities arising from or in connection with claims filed by (i) any Clients using the Platform through affiliation with a Business through which you are employed by, an agent or independent contractors of, or are in any affiliated with or using the Platform through, or (ii) such Business.
In addition to the terms in Sections 1 through 27 of these Terms, a Business is subject to the following additional terms.
The Business agrees to make all payments due and owing to the Company.
Businesses who receive Platform Payments from Clients must agree to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these terms or continuing to operate as a Business on the Platform, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as those agreements may be modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, you agree to provide Company with accurate and complete information about you and your business, and you authorize Company to share this information and transaction information related to your use of the payment processing services provided by Stripe.
Access to and Use of a Client or Coach’s Content
You represent and warrant that the Business will not use Client or Coach’s Content for any purpose other than as necessary to facilitate the use of the Platform by a Client or Coach affiliated with the Business and in accordance with these Terms.
Affiliation with Company and Disputes With Clients or Coaches
Company is solely providing the Platform for your use and convenience. You acknowledge and agree that the Company does not have any legal affiliation with you, and does not oversee, benefit from or have any relationship with any person providing Coaching Services for you through the Platform or otherwise. You further agree and acknowledge that Company is not a joint employer and is in no way responsible for the payment of wages or taxes, or any other obligations owed by you to any employees, independent contractors, subcontractors agents or any other person or entity performing Coaching Services for you. You are further solely responsible for acts or omissions of Coaches that are employed by agents or independent contractors or are in any affiliated with or are using the Platform through you. The Company disclaims all liabilities related in any way to and you acknowledge you are solely responsible for your use of Coaches to provide the Coaching Services or any other services related to the Platform. You hereby agree to indemnify, defend, and hold harmless the Company from any claims, losses, or liabilities arising from or in connection with claims filed by any Coaches or any Clients using the Platform through affiliation with you.