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© 2018 Andrea Marcellus. All rights reserved.

Website by Brand X Republic.

Effective Date: September 26, 2018

Please read this Terms of Use Agreement (the “Terms of Use”) carefully.  These Terms of Use govern your use of those websites owned or controlled by And/Life, Inc. (the “Company” or “we”), including the websites located at: http://andlife.com and http://andreamarcellus.com (each, a “Website” and collectively, the “Websites”)), the software application entitled “And/Life” (the “App”) and hosted services enabled or available via the Websites and App related to women’s health, fitness, fashion and similar issues (the “Services”) that are offered by the Company.   

BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, USING THE SERVICES, AND/OR DOWNLOADING THE APP, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE WEBSITE, APP OR SERVICES. 

IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU [OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR SUBSCRIPTION] IN ACCORDANCE WITH SECTION 7.4 BELOW. 

PLEASE BE AWARE THAT SECTION 14.5 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.  

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE, APP, SERVICES OR CONTENT AVAILABLE THEREIN WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT. 

Your use of, and participation in certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplement Service.  If these Terms of Use and inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service.  These Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms”.

PLEASE NOTE THAT The Terms are subject to change by THE Company in its sole discretion at any time.  When changes are made, the Company will make a new copy of the Terms of Use available at the Website and within the App.  We will also update the “Last Updated” date at the top of the Terms of Use.  If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below), we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS. 

1. Use of the Services.  The Website, App, and the Services provided by the Company via the Website and App (collectively, the “Company Properties”) are protected by copyright laws throughout the world.  Unless otherwise specified by the Company in a separate license, your right to use any Company Properties is subject to the Terms. 

 

1.1. Application License Subject to your compliance with the Terms, the Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the App on those mobile devices or computers that you own or control and to run such copy of the App solely for your own personal or internal business purposes.  Furthermore, with respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketing place (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s “Usage Rules”) (the “Usage Rules”). 

1.2. Updates.  You understand that the Company Properties are evolving.  As a result, the Company may require you to accept updates to the Company Properties that you have installed on your computer or mobile device.  You acknowledge and agree that the Company may update the Company Properties with or without notifying you.  You may need to update third-party software (e.g. your device’s operating system) from time to time in order to use the Company Properties.

1.3. Certain Restrictions The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Company Properties or any portion of the Company Properties,  (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of the Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access the Company Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Properties. For the purposes of clarity, the foregoing restrictions do not apply to any Third Party Content (as defined in Section 4) made available via the Company Properties. Any future release, update or other addition to the Company Properties shall be subject to the Terms.  The Company, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of the Company Properties terminates the licenses granted by the Company pursuant to the Terms.

1.4. Unauthorized Use.  You agree that you will not, under any circumstances: (a) interfere with or damage Company Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (b) modify or cause to be modified any files that are a part of the Company Properties; (c) disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Company Properties; or (ii) the enjoyment of the Company Properties by any other person; (d) attempt to gain unauthorized access to the Company Properties, accounts registered to others, or to the computers, servers or networks connected to the Company Properties by any means other than the User (as defined in Section 2.1) interface provided by Company, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Company Properties; (e) access, tamper with or use non-public areas of the Company Properties, the Company’s computer systems, or the technical delivery systems of the Company’s providers; (f) attempt to probe, scan, or test the vulnerability of any Company system or network, or breach any security or authentication measures; (g) disrupt or interfere with the security of, or otherwise cause harm to, the Company Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Company Properties or any affiliated or linked sites; or (h) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by the Company or any of the Company’s providers or any other third party to protect the Company Properties.

2. Registration

 

2.1. Registering Your Account.  In order to access certain features of the Company Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is a user of the Services (“User”) who has registered an account on the Website or App (“Account”), or has a valid account on the social networking service (“SNS”) through which the User has connected to the App (each such account, a “Third-Party Account”).

2.2. Access Through a SNS.  If you access the Services through a SNS, you may link your Account with Third-Party Accounts, by allowing the Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to disclose your Third-Party Account login information to the Company and/or grant the Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating the Company to pay any fees or making the Company subject to any usage limitations imposed by such third-party service providers.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the App.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. 

2.3. Registration Data.  In registering for use of the Services you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the App’s registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (x) at least thirteen (13) years old; (y) of legal age to form a binding contract; and (z) not a person barred from using the Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.   You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Company Properties by minors.  You may not share your Account or password with anyone, and you agree to (a) notify the Company immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Company Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account per platform or SNS at any given time.  You agree not to create an Account or use the Company Properties if you have been previously removed by the Company, or if you have been previously banned from any of the Company Properties.

2.4. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Company Properties, including but not limited to, a mobile device that is suitable to connect with and use the Company Properties, in the event you are using the App on a mobile device.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Company Properties.

3. Work Out Warning. The Site and App may contain fitness programs and videos featuring high intensity exercises and work out routines. You should consult your physician or other health care professional before starting any fitness 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, or if you have ever experienced chest pain when exercising or have experienced chest pain in the past month when not engaged in physical activity, smoke, have high cholesterol, are obese, or have a bone or joint problem that could be made worse by a change in physical activity. Do not start any fitness program if your physician or health care provide advises against it. If you experience faintness, dizziness, pain or shortness of breath at any time while exercising you should stop immediately. It is extremely important that you listen to your body, use common sense, take breaks, hydrate as needed, and maintain a high level of responsibility and self-awareness to ensure your safety and avoid injury.  ONLY YOU can know if you are in sufficient physical condition to perform the activities in any fitness program available on the Site or App. Please only proceed with any fitness program available on the Site and App if you accept this responsibility and feel that you are able to undertake the physical fitness demands of such fitness programs.

The fitness programs available via the Site and App may offer health, fitness and nutritional information. Such information is designed for educational purposes only. You should not rely on this information 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 with a physician or other health-care professional. Do not disregard, avoid or delay obtaining medical or health related advice from your health-care professional because of something you may have read or heard on any fitness program.  The use of any information provided on any program available on the Site and App is solely at your own risk.

Developments in medical research may impact the health, fitness and nutritional advice that appear here. No assurance can be given that the advice contained in this program will always include the most recent findings or developments with respect to the particular material.

If you are in the United States and think that you are having a health or medical emergency, call your health care professional or 911, immediately.

4. Ownership

 

4.1. Company Properties You agree that the Company and its suppliers own all rights, title and interest in the Company Properties.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company Properties. Company’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Company Properties are the trademarks of the Company and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in the Company Properties are the property of their respective owners.

4.2. Your Account.  Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Company. 

4.3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Company Properties.

5. No Obligation to Pre-Screen Content.  You acknowledge that the Company has no obligation to pre-screen information, data, text, music, sound, photographs, videos and other materials available on and through the Company Properties by third parties (“Third Party Content”), although the Company reserves the right in its sole discretion to pre-screen, refuse or remove any Third Party Content.  In the event that the Third Party Company pre-screens, refuses or removes any Third Party Content, you acknowledge that the Company will do so for the Company’s benefit, not yours.  Without limiting the foregoing, the Company shall have the right to remove any Third Party Content that violates the Terms or is otherwise objectionable.

6. App Stores.  You acknowledge and agree that the availability of the App is dependent on the App Store from which you received the App license.  You acknowledge that the Terms are between you and the Company and not with the App Store.  The Company, not the App Store, is solely responsible for the Company Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with the Company Properties, including the App.  You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Company Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.

 

7. Fees and Purchase Terms.

7.1. PaymentYou agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to signing up for the Services.  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Company with your credit card number and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required.  You agree to immediately notify Company of any change in your billing address or the credit card used for payment hereunder.  Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to you. 

7.2. Service Subscription Fees You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”).  Except as set forth in the Terms, all fees for the Services are non-refundable.  No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

 

7.3 Taxes.  

(a) Services.  Company’s fees to its Services are net of any applicable Sales Tax.  If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense we may incur in connection with such Sales Taxes.  Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

(b) Products.  Company’s prices for merchandise and products sold via the Websites will include any applicable Sales Tax.  When you order products for overseas delivery, you may be subject to import duties and taxes, which are levied when the package with the products arrives at the destination that you specified.  Any charges for customs clearance have to be borne by you, as Company has no control over such charges and cannot foresee the amount charged (if any).  Since customs policies vary from country to country, you should contact the customs office in the country where you have us ship your products to get more information.  Please also be aware that you are considered the importer of record and must comply with all laws and regulations of such count.

7.4. Automatic Renewal.  Your subscription will continue indefinitely until terminated in accordance with the Terms.  After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Company’s then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least 24 hours prior to the Renewal Commencement Date by logging into and going to the "Manage App Subscriptions” page in the Apple App Store or the “My Apps” page in the Google Play Store app. The same page will permit you to change your Account settings if you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize Company to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if Company does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Company may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment,  your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

 

7.5. Free Trials and Other Promotions Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact Company to have the charges reversed.

7.6. Order Acceptance; Returns Your receipt of an electronic or other form of order confirmation does not signify Company’s acceptance of your order, nor does it constitute confirmation of our offer to sell.  Company reserves the right at any time after receipt of your order to accept or decline your order for any reason.  Company further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item.  Your order will be deemed accepted by Company upon our delivery of the products that you have ordered.  We may require additional verifications or information before accepting any order.  All sales of products are subject to Company’s then-current return policies, as posted on Company Properties.

7.7. Title and Risk of Loss.  All sales of products are made Ex Works (Incoterms 2010) Company’s designated point of shipment, and title and risk of loss to each shipment of products shall pass to you when Company makes such shipment available to the carrier.

7.8. Product Descriptions.  Descriptions, images, references, features, content, specifications, products, price and availability of any products and services are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on any Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.

7.9. Disputes.  You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: PO Box 56569 Sherman Oaks, CA 91413.

7.10. Return Policy.  If you received a damaged or defective product, please contact us within 30 days of delivery at: support @andlife.com.  Please be prepared to supply the order number and product number from your original confirmation email, as well as your email and phone number. We will make every reasonable effort to assist you with your return.  If you wish to return a product, please follow the instructions provided by our customer support personnel.

8. Indemnification.  You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a)  your use of, or inability to use, the Company Properties; (b) your violation of the Terms; or (c) your violation of any applicable laws, rules or regulations.  The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Company Properties.

9. Disclaimer of Warranties.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE COMPANY PROPERTIES WILL BE CORRECTED.  THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

10. Limitation of Liability

10.1. Disclaimer of Certain Damages YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE COMPANY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

 

10.2. Cap on Liability UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Company by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION

 

10.3. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. 

 

10.4. EXCLUSION OF DAMAGES.  THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW

 

11. Term and Termination 

 

 

11.1. Term.  The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Company Properties, unless terminated earlier in accordance with the Terms.

11.2. Termination of Services by Company You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Company will refund your Service Subscription Fee, if already paid pursuant to Section 7.1 or 7.2, for the applicable Service.  Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable.  If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Company is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.

 

11.3. Termination of Services by You If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Company's address set forth below.  THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.4.  

 

11.4. Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination  of  all Services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof).  Upon termination of any Service, your right to use such Service will automatically terminate immediately. All provisions of the Terms, which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

12. Remedies

 

12.1. Violations.  If the Company becomes aware of any possible violations by you of the Terms, the Company reserves the right to investigate such violations.  If, as a result of the investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  The Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Company Properties in the Company’s possession in connection with your use of the Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of the Company, its Users or the public, and all enforcement or other government officials, as the Company in its sole discretion believes to be necessary or appropriate.

12.2. No Subsequent Registration.  If your registration(s) with or ability to access the Company Properties is discontinued by the Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, the Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

13. International Users The Company Properties can be accessed from countries around the world and may contain references to services and content that are not available in your country.  These references do not imply that the Company intends to announce such services or content in your country.  The Company Properties are controlled and offered by the Company from its facilities in the United States of America. The Company makes no representations that the Company Properties are appropriate or available for use in other locations.  Those who access or use the Company Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.

 

14. General Provisions

14.1. Electronic Communications.  The communications between you and the Company use electronic means, whether you visit the Company Properties or send the Company e-mails, or whether the Company posts notices on the Company Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

14.2. Assignment The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

14.3. Force Majeure The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.4. Questions, Complaints, Claims If you have any questions, complaints or claims with respect to the Company Properties, please contact us at: support@andlife.com  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

14.5. Dispute Resolution.  Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.  

(a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, the App, Services, workout content or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.  

(b) Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our us at and/life, Inc. PO Box 56569 Sherman Oaks, CA 9141.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you.  In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

 

 

(c) Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Company.   The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.  

(d) Waiver of Jury Trial YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.5(a) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.   However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  

(e) Waiver of Class or Other Non-Individualized Relief.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in Los Angeles, California.  All other claims shall be arbitrated.  

(e) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: PO Box 56569 Sherman Oaks, CA 91413, or: support@andlife.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

(g) Severability.  Except as provided in subsection 14.5(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.

(i) Modification.  Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Company at the following address: PO Box 56569 Sherman Oaks, CA 91413.

14.6. Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

14.7 Notice Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address.  In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to the Company at the following address: PO Box 56569 Sherman Oaks, CA 91413.  Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

14.8. Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.9. Severability If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

14.10. Export Control.  You may not use, export, import, or transfer the Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Company Properties, and any other applicable laws.  In particular, but without limitation, the Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

14.11. Accessing and Download the Application from an App Store.  The following applies to any App accessed through or downloaded from an App Store: 

 

(a) You acknowledge and agree that (i) the Terms are concluded between you and the Company only, and not Apple, Google or Microsoft, and (ii) the Company, not Apple, Google or Microsoft, is solely responsible for the App and content thereof. Your use of the App must comply with the applicable App Store’s terms of service or usage rules. 

(b) You acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App. 

(c) In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store, and the App Store will refund the purchase price for the App to you and to the maximum extent permitted by applicable law, neither Apple, Google or Microsoft will have any other warranty obligation whatsoever with respect to the App. As between the Company and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company. 

(d) You and the Company acknowledge that, as between the Company and the App Store, the App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and the Company acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, as between the Company and App Store, the Company, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms. 

(f) You and the Company acknowledge and agree that (i) Apple and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App from the Apple App Store, (ii) Google and Google’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App from the Android market or Google Play App Stores, and (iii) Microsoft and its subsidiaries are third-parties beneficiaries of the Terms as related to your license of the App from the Windows Phone Apps + Games Store; and that, upon your acceptance of the terms and conditions of the Terms, Apple, Google, or Microsoft, as applicable, will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App against you as a third-party beneficiary thereof. 

(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App.

14.2. Entire Agreement The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.