Last Updated: November 18th, 2016
1.Eligibility. You must be at least eighteen (18) years of age to register as a member of WEBercise or use the Service. Membership in the Service is restricted to natural persons. Membership in the Service is void where prohibited. By using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
5. Membership. When you register for an account on WEBercise, you become a Member of WEBercise. At the time of registration you may choose to become a Member as either a Client or as a Health Professional as defined below.
a. Client Membership. Members using the Service to receive training, instruction, and guidance provided by WEBercise’s registered Health Professionals, as described below, are “Clients”. Clients can use the Service to schedule instructional and training events and lessons (each a “Training Session”). Clients will be presented with the cost of each Training Session during the scheduling process. Payments for each Training Session will be processed at the time of scheduling the Training Session or shortly thereafter. Clients may also decide to purchase “Monthly Membership“ which entitle them to a pre-determined number of Training Sessions in a given period of time. The terms of these Membership Subscriptions are set forth on the site. Additional terms governing payment are found in Section 6. Once scheduled, your right to cancel a Training Session is governed by Section 8.
b. Health Professional Membership. Members using the service to offer training, instruction, or guidance Clients are “Health Professionals.” In the WEBercise Service, Health Professionals may be called “Fitness Professionals,” “Nutrition Professionals” or other terms depending on the training, instruction or guidance they offer through the Service.
▪ Registration. Upon registration for a Health Professional Membership, you are required to provide certain information about your certification, education and qualifications as a certified personal trainer. By providing this information, you authorize a background check to verify the accuracy of the information provided to be conducted by WEBercise, contractors or authorized third-parties. WEBercise will not approve Health Professional Memberships that are not verified. WEBercise reserves the right to reject your Health Professional Membership for any reason.
▪ Revenue Share. WEBercise shall pay to Health Professional the Revenue Share. As used herein, the “Revenue Share” shall mean an amount equal to the percentage of revenue actually received (in US dollars) for each Training Session transaction executed on the Service, less certain costs deducted in accordance with WEBercise’s then-current practices or policies as may be changed from time to time without notice, including without limitation, transaction fees, charge backs, bad debt, taxes, commissions, referral fees and technology fees related to the Service. The percentage of revenue paid to a particular Health Professional as the Revenue Share will be presented and agreed to by the Health Professional during the registration process. For each applicable month during the term of this Agreement, WEBercise shall disburse to the Health Professional Revenue Share payments within 30 days of the close of each calendar month. WEBercise may choose to disburse payments more frequently, such as making payments every 14 days, but is under no obligation to do so. To the extent any dispute arises regarding the Revenue Share amounts due to WEBercise, the Parties hereby agree that WEBercise’s records with respect to the amounts to be paid shall control.
▪ Insurance. WEBercise recommends that Health Professionals purchase appropriate general liability and professional liability insurance prior to using the WEBercise Service.
▪ Relationship between WEBercise and Health Professionals. THE HEALTH PROFESSIONALS REFERENCED IN THIS AGREEMENT AND THROUGH THE SERVICE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF WEBERCISE. WEBERCISE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF HEALTH PROFESSIONALS OR FROM ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.
a.General. WEBercise bills you through Stripe integration for use of the Service. You agree to pay WEBercise all charges at the prices then in effect for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize WEBercise to charge your chosen payment provider (your “Payment Method”), such as PayPal, for your use of the Service. You agree to make payment using your selected Payment Method. WEBercise reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
b.Current Information Required. YOU MUST PROMPTLY NOTIFY WEBERCISE IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY.
c. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If WEBercise does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your Billing Account upon demand, or WEBercise may suspend or terminate your access to the Service.
d. Recurring Billing for Clients A Membership Subscription for Clients, as described in Section 5 above, consists of recurring monthly charges as agreed to by you. By entering into this Agreement as a Client, you acknowledge that your Membership Subscription has a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WEBERCISE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (CONFIRMED IN WRITING UPON REQUEST BY WEBERCISE) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WEBERCISE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO THE CONTACT FORM.
e. Reaffirmation of Authorization. Your non-termination or continued use of the Service reaffirms that WEBercise is authorized to charge your Payment Method. WEBercise may submit those charges for payment and you will be responsible for such charges. This does not waive WEBercise’s right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described on the applicable payment screen.
f. Refunds. WEBercise does not provide refunds for Membership Fees outside of the 14-day trial period laid out in the following section. If you terminate your Membership, you may use your Membership until the end of your then-current term; your Membership will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the Membership Fee paid for the then- current period.
g. 14-Day Money Back Guarantee. If purchasing a monthly subscription program (Core and Stability, Lean and Toned, or Transformation), you can cancel for any reason within 14 days of purchase for a full refund, whereby Day 1 of your trial is the date of purchase. Submit cancellation to info@WEBercise.com or from the Contact Us page.
h. Session Expiration. All sessions expire one calendar month after they are purchased. IT IS YOUR RESPONSIBILITY, NOT THE HEALTH PROFESSIONAL’S, TO MONITOR YOUR SESSION TOTAL FOR DISCREPANCIES AND ERRORS, AS WELL AS ENSURE THAT ALL OF YOUR SESSIONS GET TRAINED BEFORE THE CONCLUSION OF THAT MONTH’S BILLING. CREDITING BACK SESSIONS FOR EXTENUATING CIRCUMSTANCES IS SOLELY AT THE DISCRETION OF WEBERCISE.
i. Free Trials and Other Promotions. Any free trial or other promotion must be used within the specified time of the trial. You must choose to terminate your access to the feature or service before the end of the trial period in order to avoid being charged the applicable fee. If you terminate access prior to the end of the trial period and are inadvertently charged a fee, please contact WEBercise to have the charges reversed.
7. Pricing. WEBercise attempts to make all prices published through the Service accurate. However, in the event that we have provided an inaccurate price or incorrect information due to error either by us or by a Health Professional, we reserve the right to refuse or cancel purchases made through the system. When a purchase is cancelled due to pricing error, we will provide a refund of the purchase price. Price quotations listed on the Site or elsewhere in the Service are subject to change without notice prior to purchase. Prices listed on the site are per person, unless otherwise noted.
8. Cancellation of Training Sessions. Clients and Health Professionals may cancel Training Sessions between the time the Client schedules a Training Session and 24 hours prior to the scheduled commencement of the Training Session (the “Cancellation Period”).
a. If a Client or Health Professional cancels a Training Session during the Cancellation Period, the Client will not have a session deducted from their account, and the Health Professional will not receive the Revenue Share for the Training Session.
b. If the Client cancels a Training Session outside of the Cancellation Period, the Client will not receive a refund and the session will be deducted. The Health Professional will receive the Revenue Share for the Training Session.
c. If the Health Professional cancels a Training Session outside of the Cancellation Period, the Client will not have the session deducted from their account. The Health Professional will not receive the Revenue Share for the Training Session.
9. Your Interactions with Other Members.
a. Interactions with Other Members. You are solely responsible for your interactions with other Members. WEBercise makes no representations or warranties as to the conduct of Members and shall not be in any way liable for any conduct of any Member. You agree to take reasonable precautions in all interactions with other Members of the Service, particularly if Clients and Health Professionals decide to meet offline or in person. You should not provide your financial information (for example, your credit card or bank account information) to other Members.
b. Release. You hereby release WEBercise from any and all claims, demands, damages (actual, consequential, nominal, punitive, or otherwise), equitable relief, and any other legal, equitable, and administrative remedy, of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, past, present, or future, arising out of or in any way connected with your interaction with other users on the Service. FURTHER, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
10. Term and Termination. This Agreement will remain in full force and effect while you use the Service and/or are a Member. You may terminate your membership, subject to the terms related to cancellation of membership contained in this Agreement, at any time, for any reason, by emailing us a written notice at: info@WEBercise.com, or by filling out the form on the contact page. If you terminate your membership to the WEBercise.com site, to help WEBercise analyze and improve the Service, you may be asked to provide a reason for your termination. WEBercise may, in its sole discretion and for any or no reason, terminate your membership by sending notice to you at the email address you provide in your application for membership, or such other email address as you may later provide to WEBercise. If WEBercise terminates your membership in the Service because you have breached this Agreement, you will not be entitled to any refund. All decisions regarding the termination of accounts shall be made in the sole discretion of WEBercise. WEBercise is not required to provide you notice prior to terminating your membership. WEBercise is not required to disclose, and may be prohibited from disclosing, a reason for the termination of your account.
11. Account Security. You are responsible for maintaining your standing of the Service. You agree to immediately notify WEBercise of any unauthorized use of your account sessions or other breach of security. WEBercise will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
12. Content on WEBercise.
a. Proprietary Rights. WEBercise, and its licensors, own and retain all proprietary rights in the Service. The Service contains content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services and other elements of the Service (the “WEBercise Materials”) that are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and other relevant intellectual property and proprietary rights, and applicable laws. Except for that information which is in the public domain or for which you have been given express written permission, you may not copy, modify, publish, transmit, distribute, license, perform, display, or sell any WEBercise Materials. WEBercise Materials do not include User Content (as defined below) or other content submitted by users. WEBercise retains all rights not expressly granted in this Agreement. You shall not acquire any right, title or interest to the Service or WEBercise Materials, except for the limited rights set forth in this Agreement.
b. Reliance on Content. Advice, opinions, statements, offers, or other information or content, including without limitation User Content (as defined below), made available through the Service, but not directly by WEBercise, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. WEBercise does not: (i) guarantee the accuracy, integrity, quality, legality, safety, completeness, or usefulness of any information on the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Service. Under no circumstances will WEBercise or its affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Service or transmitted to or by any users or Members.
13. Prohibited Activities. WEBercise reserves the right to investigate and terminate your membership if you have misused the Service, or behaved in a way which could be regarded as inappropriate or whose conduct is unlawful or illegal. The following is a partial list of the type of actions that you may not engage in with respect to the Service:
a. You will not use the Service for any purpose that is unlawful or prohibited by this Agreement.
b. You will not impersonate any person or entity.
c. You will not “stalk” or otherwise harass any person.
d. You will not express or imply that any statements you make are endorsed by WEBercise without our specific prior written consent.
e. You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
f. You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.
g. You will not remove any copyright, trademark or other proprietary rights notices contained in the Service.
h. You will not interfere with or disrupt the Service or the site or the servers or networks connected to the Service or the site.
i. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
j. You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service.
k. You will not “frame” or “mirror” any part of the Service or the Service, without WEBercise’s prior written authorization. You also shall not use meta tags or code or other devices containing any reference to WEBercise or the Service or the site in order to direct any person to any other web site for any purpose.
l. You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or any software used on or for the Service or cause others to do so.
14. Modifications to Service. WEBercise reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that WEBercise shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. Blocking of IP Addresses. In order to protect the integrity of the Service, WEBercise reserves the right at any time in its sole discretion to block Members from certain IP addresses from accessing the Service.
16. Copyright Policy.
a. DMCA Notice. It is WEBercise’s policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. In addition, we will promptly terminate without notice the accounts of those determined by us to be “repeat infringers”. If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing WEBercise’s Designated Copyright Agent with the following information in writing (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
▪ A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
▪ Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works at that site.
▪ Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit WEBercise to locate the material.
▪ Information reasonably sufficient to permit WEBercise to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
▪ 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.
▪ A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
b. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please also note that WEBercise may, at our sole discretion, send a copy of such notices to a third-party for publication. For example, your letter (with personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication.
c. Counter Notice. If you elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
▪ Your physical or electronic signature.
▪ Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
▪ A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
▪ Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which WEBercise may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
d. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
e. Designated Copyright Agent. WEBercise’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:Attn: Copyright Agent
f. 147-50 77th Road, Flushing, NY 11367. For clarity, only DMCA notices should go to the WEBercise Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to WEBercise customer service through I info@WEBercise.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
g. Repeat Infringer. Please note that WEBercise will promptly terminate without notice any user’s or Member’s access to the Service if that user or Member is determined by WEBercise to be a “repeat infringer.” A “repeat infringer” is a user or Member who has been notified by WEBercise of infringing activity violations more than twice and/or who has had their User Content or any other user- submitted content removed from the Service more than twice. In addition, WEBercise accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
a. Results Not Guaranteed. WEBERCISE DOES NOT GUARANTEE ANY RESULTS FROM USE OF THE SERVICE. WEBERCISE DOES NOT ENDORSE ANY FITNESS OR NUTRITION PROGRAM OFFERED THROUGH THE SERVICE. ANY STATEMENTS, GUARANTEES, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY HEALTH PROFESSIONALS OR OTHER USERS OF THE SERVICE ARE SOLELY ATTRIBUTABLE TO THE HEALTH PROFESSIONAL OR USER. WEBERCISE IS NOT LIABLE FOR ANY STATEMENTS OR GUARANTEES MADE BY HEALTH PROFESSIONALS OR OTHER USERS.
b. No Warranties; “As Is,” “As Available,” and “With All Faults”. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WEBERCISE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT ANY ADVICE THAT MAY BE POSTED ON THE SERVICE IS FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY AND WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE SERVICE, USER CONTENT AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
c. Operation and Content. WEBERCISE IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF THE SERVICE, MEMBERS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. WEBERCISE ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER OR MEMBER COMMUNICATIONS. WEBERCISE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS AND/OR MEMBERS OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICE.
d. User and Member Conduct. WEBERCISE IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR MEMBER OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL WEBERCISE OR ANY OF ITS AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SERVICE, ANY CONTENT POSTED ON THE SERVICE OR TRANSMITTED TO MEMBERS, OR ANY INTERACTIONS BETWEEN USERS OF THE SERVICE, WHETHER ONLINE OR OFFLINE. WEBERCISE IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANY EVENTS OR ACTIONS OCCURING AT VENUES OR ANY INTERACTION BETWEEN A USER OF THE SERVICE AND ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION EMPLOYEES OF A VENUE OR OTHER PATRONS OF A VENUE. WEBERCISE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE.
18. Links and Third Party Services. The Service may provide, or third parties may provide, links or functionality in the Service to other websites or third party resources (“Third Party Services”). Because WEBercise has no control over Third Party Services, you acknowledge and agree that WEBercise is not responsible for the availability of the Third Party Service, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from the Third Party Services. You further acknowledge and agree that WEBercise shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such Content, goods or services available on or through Third Party Services. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SERVICES OR AVAILABLE THROUGH THIRD PARTY SERVICES, IS SOLELY AT YOUR OWN RISK. When you leave the Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Service.
19. Release of Liability for Injury or Death; Limitation on Liability; Damages.
a. Release of Liability for Injury or Death. YOUR PARTICIPATION IN TRAINING SESSIONS OR OTHER PROGRAMS THROUGH THE WEBERCISE SERVICE IS AT YOUR OWN RISK. Exercise Programs of any Kind represent an Inherent danger to participants. NEITHER WEBERCISE NOR HEALTH PROFESSIONALS ARE LIABLE FOR ANY PERSONAL INJURY OR DEATH THAT RESULTS FROM USE OF THE SERVICE INCLUDING PARTICIPATION IN TRAINING SESSIONS. YOU RELEASE WEBERCISE AND HEALTH PROFESSIONALS FROM ALL LIABILITY FOR INJURY OR DEATH THAT RESULTS FROM YOUR PARTICIPATION IN A TRAINING SESSION OR USE OF THE WEBERCISE SERVICE. WEBERCISE WILL NOT BE LIABLE TO HEALTH PROFESSIONALS FOR ANY INJURY OR DEATH THAT RESULTS FROM HEALTH PROFESSIONALS USE OF THE SERVICE AND IF YOU ARE A HEALTH PROFESSIONAL, YOU RELEASE WEBERCISE FROM ANY SUCH LIABILITY. Members should consult a physician before beginning use of the service or any exercise program or training session. not all exercise programs OR training sessions are appropriate for all members. PLEASE CHECK ALL EQUIPMENT AND THE AREA IN WHICH YOU ARE USING THE SERVICE FOR ANY DANGEROUS CONDITIONS. IN CASES WHERE APPLICABLE LAW DOES NOT ALLOW THE ABOVE RELEASE OF LIABILITY, WEBERCISE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
b. Limitation of Liability. Except in jurisdictions where such provisions are restricted, in no event, and under no legal theory, including without limitation negligence, will WEBercise or its affiliates, contractors, employees, agents or third party partners or suppliers be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including without limitation lost profits, data or use or cost of cover, even if WEBercise has been advised of the possibility of such damages. In cases where applicable law does not allow the above limitation of liability, WEBercise’s liability will be limited to the extent permitted by law.
c. Limitation of Damages. In no event shall WEBercise or its affiliates, contractors, employees, agents, or third party partners, licensors or suppliers’ total liability to you for any cause whatsoever (whether in contract, tort (including negligence), warranty, or otherwise), and regardless of the form of the action, exceed the greater of: (i) one hundred dollars or (ii) the amount paid by you to WEBercise for the Service in the 12 months prior to the action giving rise to the liability.
20. Indemnity by You. You agree to indemnify and hold WEBercise, its parent, subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from any loss, liability, claim, damages, obligations, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of (i) your use of the Service, (ii) your violation or breach of this Agreement, (iii) your User Content, or (iv) any breach of your representations and warranties set forth above. WEBercise reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of WEBercise. WEBercise will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
a. Notice. WEBercise may provide you with notices, including those regarding changes to this Agreement, by email or postings on the Service. Notice will be deemed given 24 hours after the email is sent, unless WEBercise is notified that the email address is invalid. Alternatively, we may give you notice through a mechanism made available through the Service, such as through the use of a pop-up on the Service.
b. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
c. U.S. Export Controls. Software from this Service (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
d. Jurisdiction and Choice of Law. In the event of any dispute arising out of the Service, by using the Service, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, in Queens County, for the resolution of any such dispute.
e. Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of WEBercise to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
f. Survival. Sections 4, 6, 9(b), 10, 11, 12(c), 15, and 18-22 will survive any termination of this Agreement. Subject to the foregoing, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
g. Entire Agreement. This is the entire agreement between you and WEBercise relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in writing, signed by both parties, or by a change to the Agreement or Guidelines made by WEBercise as set forth in Section 4 above.
h. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
i. Assignment. The Agreement, and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WEBercise without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
j. Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
k. Claims. YOU AND WEBERCISE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
l. Disclosure. The Service is offered by WEBercise Inc., located at 147-50 77th Road, Flushing, NY 11367, email: info@WEBercise.com. If you are a New York resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.