TERMS AND CONDITIONS OF USE
Thank you for visiting OutdoorBody Inc.’s online and mobile resources and for viewing these terms and conditions of use. We use these terms and conditions of use to tell you about the rights and obligations both you and OutdoorBody Inc. have when you visit and use the features of our online and mobile resources.
This is a contract.
These terms and conditions of use, which we refer to as the “Terms of Use” or “ToU”, as well as our [privacy statement][link to statement] (the “Privacy Statement”), are a legally enforceable contract between you and OutdoorBody. The products and services we promote through the online and mobile resources, as well as via certain off-line means, are governed by these Terms of Use.
THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, WHICH CAN BE FOUND HERE. PLEASE CAREFULLY REVIEW THIS LANGUAGE. BY VISITING OUR ONLINE AND MOBILE RESOURCES, YOU ARE SIGNIFYING TO US THAT YOU AGREE TO BIND YOURSELF TO THIS CONTRACT.
Some important vocabulary.
Since these Terms of Use are a binding legal contract, clarity is important. You’ll notice that we capitalize certain words in these ToU even when the rules of grammar don’t require capitalization. We do this because in the context of these Terms of Use, such capitalized words have specific meanings, which can be found where they are first used, as indicated by bold text (like “ToU” described above). Some additional words have special meanings whenever you see them in these Terms of Use as follows: the words “you” and “your” refer to each individual user accessing and using our online and mobile resources. The words “OutdoorBody”, “we”, “us” and “our” refer to OutdoorBody Inc., acting on behalf of itself and, where applicable, its third-party licensors. When we talk about our “online and mobile resources”, we mean the OutdoorBody website found at www.outdoorbody.com and such others as we may make available from time to time as well as the products or services offered thereon and any mobile or other apps we’ve created and distributed to let our customers and followers view our site or otherwise interact with our Content. The capitalized word “Content” means the text, images, graphics, logos, audio, video, and other information and materials we make available on or from our online and mobile resources, which may include information from third parties. When we use the word “including” we mean it in what is known as an “exemplary manner” such that it encompasses “including, without limitation” or “including, but not limited to.” When we use the word “will” or “shall”, we mean that performance of that particular condition is required. When we use the word “may”, we mean there is not an obligation to perform but rather a right to choose to perform.
Medical and Nutritional Disclaimer.
THE ONLINE AND MOBILE RESOURCES AND CONTENT (INCLUDING ANY HEALTH, FITNESS AND NUTRITIONAL INFORMATION PROVIDED IN THE PROGRAMS (DEFINED BELOW)) IS PROVIDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU ARE HEALTHY ENOUGH TO ENGAGE IN THE ACTIVITIES IN CONNECTION WITH WHICH YOU PLAN TO USE THE ONLINE AND MOBILE RESOURCES. NEITHER THE ONLINE AND MOBILE RESOURCES NOR ANY CONTENT, PROGRAM, OR OTHER OUTPUT THAT MAY RESULT FROM YOUR USE OF THE ONLINE AND MOBILE RESOURCES ARE INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT NOR SHOULD THEY BE CONSIDERED INDIVIDUALIZED NUTRITION COACHING OR COUNSELING. ALWAYS CONSULT A LICENSED PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL BEFORE STARTING ANY EXERCISE OR DIET PROGRAM AND IF STRAIN, INJURY, OR DISCOMFORT RESULT FROM YOUR ACTIVITIES. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON THE ONLINE AND MOBILE RESOURCES. RESULTS FROM YOUR USE OF THE ONLINE AND MOBILE RESOURCES, CONTENT, AND PROGRAMS, INCLUDING ANY NUTRITIONAL INFORMATION PROVIDED, WILL VARY. USE OF THE ONLINE AND MOBILE RESOURCES INCLUDING ITS CONTENT IS SOLELY AT YOUR OWN RISK.
Sometimes things change.
We may revise these Terms of Use at any time to reflect, among other things, changes in technology, our business model, or law or regulation. Although we ask that you check this page periodically for such revisions, we will try to post notice that a material revision has been made somewhere within the online and mobile resources. However, whether or not we provide, or you see, such notice, by continuing to access and use the online and mobile resources after the revisions are made, you will have accepted and agreed to the revised Terms of Use.
You have both rights and obligations.
You may access and view our Content and use the features of our online and mobile resources on your computer or mobile device solely for your personal, non-commercial use. You also may print out and make copies of the Content in connection with that personal, non-commercial use. You may not make use of the online and mobile resources or any Content for any commercial purpose whatsoever unless you have received our express written permission in advance nor may you make use of the online and mobile resources or any Content at the locations identified on the online and mobile resources. You acknowledge that if you make any such prohibited use, it will be a breach of these ToU allowing us to pursue certain remedies under the laws governing contracts. Breach of certain obligations under these Terms of Use also may be a violation of other applicable laws such as intellectual property laws. We will not be responsible or liable for any loss or damage you might suffer from failure to comply with these Terms of Use.
Among your other obligations, you are required to make sure you don’t use the online and mobile resources, Content, and the various features and functions offered on or through the online and mobile resources, for, or in connection with:
reverse engineering, making machine code human readable, or creating derivative works or improvements;
scraping, crawling, downloading, screen-grabbing, or otherwise copying and/or transmitting them in any way we haven’t specifically permitted;
commercially exploiting or providing them to third parties;
introducing, transmitting, or storing viruses or other malicious code;
interfering with their security or operation;
framing or mirroring them;
creating, benchmarking, or gathering intelligence for a competitive offering;
removing, modifying, or obscuring proprietary rights notices on them;
defaming or harassing anyone;
infringing another party’s intellectual property rights, including failing to obtain permission to upload/transfer/display works of authorship;
intercepting or expropriating data; and/or
spamming, spoofing, or otherwise misrepresenting transmission sources.
We think globally, but speak and act locally: so U.S. law controls.
We control and operate the online and mobile resources from within the United States of America (the “U.S.”). Although we do not actively block or monitor visitors from other countries, the online and mobile resources are directed only at visitors from the U.S. who are age 18 or older. As such, your use of the online and mobile resources and Content, and the enforcement of these ToU, are governed and construed exclusively in accordance with the laws of the State of Colorado and the federal laws of the U.S. enforced within that state, without regard to principles of conflicts of laws.
The English language version of these Terms of Use is the controlling version regardless of any translation you may attempt. We can’t promise that the online and mobile resources or any Content are appropriate or lawful for use in other locations outside of the U.S. or that our operation (including our processing and handling of submissions you may make) will comply with non-U.S. law. Users who choose to access the online and mobile resources or any Content from outside the U.S. or, per Section 12, submit materials from outside the U.S. and/or as non-U.S. citizens, do so of their own initiative, and are responsible for compliance with all applicable local, state, national, and international laws and treaties.
No matter where you use the online and mobile resources or Content from, you also must comply with all laws applicable to such use, including U.S. export control laws that prohibit access from certain embargoed, prohibited, or restricted countries or access by prohibited, denied, and specially designated persons.
If the U.S. government (including the Department of Defense) wants to access the online or mobile resources, your Account (defined in Section 8 below), or our Content through you, all online and mobile resources and Content will be considered “commercial computer software”, “commercial computer software documentation” and “restricted data” under “Limited Rights” and “Restricted Rights” and only as commercial end items under the same rights granted to other general users.
The origins and uses of Content.
Content may have a variety of origins, including information generated and provided by us and third parties. We cannot promise that the Content is or will be:
accurate or complete;
current (or that it will be updated);
error free (either technically or with respect to typographical errors); and/or
free from interruptions, computer viruses, or other harmful components.
We have obtained and are in possession of all necessary permits and licenses required to produce the OutdoorBody-created Content at the locations identified on the mobile and online resources and we have complied with all applicable terms and conditions related to such permits and locations in creation of such Content.
You may make use of the Content under the rights described in Section 5, but under no circumstances will we be liable for any loss or damage caused by such use and/or your reliance on the Content. It is, therefore, your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, or other elements of the Content.
Account registration.
Some features of the online and mobile resources require that you register and create an account (an “Account”). If you choose to create an Account, for any reason, you agree to submit complete, accurate, and current information and data about you as required during the registration process and maintain and promptly update it as necessary. If you submit any information that is inaccurate or incomplete, or if we have a reasonable belief that such is the case, we may immediately suspend or terminate the Account and your use of our online and mobile resources and/or the Content. As part of the registration process, you may be issued credentials, usually in the form of a unique user identification and password (the “Account Credentials”). Your commitment to maintaining the strict confidentiality of your Account Credentials is a material condition of your access and use of the applicable online and mobile resources and Content. You must not allow others to use your Account Credentials and you agree to notify us immediately if you have reason to believe that someone is using your Account Credentials without your permission or if any other breach of security related to your Account occurs. Except to the extent required by law, we will not be liable for any losses arising out of the unauthorized use of your Account Credentials, either with or without your knowledge.
Ordering and Subscription Terms.
In order to enjoy full access to OutdoorBody’s online and mobile resources, including videos that are part of the Content provided thereon, you must enter into a subscription plan with us (a “Subscription”) subject to the pricing set forth at the time of purchase and the terms and conditions of this Section 9 and these ToU generally. Videos you rent or purchase under a Subscription can be viewed via your web browser or other method we may make available from time to time. Any materially different terms from those described in these Terms of Use will be disclosed at the time of purchase or in other communications made available to you. We reserve the right to adjust pricing for our online and mobile resources in any manner and at any time as we may determine in our sole discretion.
Payment Method.
In order to enter into a Subscription and use the features and functions of the online and mobile resources accessible thereunder, you must provide us with a current, valid, accepted method of payment (as such may be updated from time to time, a “Payment Method”) at the time of purchase or under your Account, as applicable. You agree to provide an updated Payment Method upon request and any time the Payment Method information you previously provided is no longer valid. You may edit your Payment Method by accessing your Account on the online and mobile resources. You represent and warrant that you have the legal right to use all Payment Method(s) that you provide to us and the information you supply to us is true, correct and complete.
If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your Subscription in accordance with the terms below, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Please check with your Payment Method service provider for details.
You must immediately notify us if your Payment Method is cancelled (e.g., for loss or theft), or as stated in Section 8, if you become aware of a breach of security related to your Account.
Subscription Details.
By entering into a Subscription at the then current fee set forth at the time of purchase, plus any applicable taxes and other charges (collectively, the “Subscription Fee”) you will receive a curated “Basecamp” homepage on the online and mobile resources which displays your purchases and a designated set of monthly rotating videos based on your Subscription plan.
Additionally, a Subscription entitles you to:
unlimited access to the OutdoorBody “Learn” video library including beginner workouts, pre and post videos and testing videos along with access to deals, subscriber monthly newsletters and private groups located on our External Social Media Presence (defined below);
curated lifestyle and fitness programs (“Programs”). Programs include private access to other Program members via our External Social Media Presence, exclusive workouts, access to resources and downloadable files, nutrition information including supplement recommendations (supplements sold separately) and daily tip videos; and
rent or purchase any video in the OutdoorBody video library that is not offered for free on the online and mobile resources. Prices for video rentals and purchases may vary and will be set at the time of purchase. You will have access to rented videos for 48 hours from the time of purchase and to your a la carte purchased videos until your Subscription is cancelled or terminated. PAYMENTS FOR RENTALS AND PURCHASES OF INDIVIDUAL VIDEOS ARE NONREFUNDABLE, INCLUDING ANY UNWATCHED VIDEOS.
We reserve the right to modify or terminate our Subscription plans, including any Programs, at any time.
Subscription Billing.
By purchasing a Subscription, we will bill the Subscription Fee to your Payment Method at the time of purchase and regularly thereafter based on your Subscription plan. You must cancel your Subscription before it renews each month in order to avoid billing of the next month’s Subscription Fees to your Payment Method. Your failure to terminate and/or continued use of your Subscription reaffirms that we are authorized to charge you for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. By purchasing a Subscription and providing a Payment Method under your Account, you authorize us to charge you a Subscription Fee on a recurring monthly basis and accept responsibility for all recurring payment obligations prior to cancellation or termination of your Subscription by you or OutdoorBody.
Cancelling or Terminating a Subscription.
You may cancel your Subscription at any time. To cancel, go to your Account on the online and mobile resources and follow the instructions for cancellation or contact us using the contact information below. If you cancel your Subscription, you may use your Subscription until the end of the then-current period and your Subscription will not be renewed after that period 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. WE DO NOT PROVIDE REFUNDS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS OR UNWATCHED VIDEOS.
In addition to any breach of your obligations set forth in Section 5 above, we may immediately terminate or suspend your Account and/or your Subscription without notice if:
your payment is overdue (subject to our reasonable efforts to notify you of such overdue payment);
you provide false or inaccurate information on your Account; and/or
you violate these ToU or applicable law.
Trademarks and other intellectual property rights.
The logos, names, and other similar marks (collectively, the “Trademarks“) displayed on the online and mobile resources and/or Content are registered and unregistered Trademarks of OutdoorBody and our licensors and may not be used unless authorized by the applicable Trademark owner. The print-outs and copies you are permitted to make under Section 5 may have Trademarks on them and you may make incidental, non-commercial use of them to the same extent as those print-outs and copies. Except for such incidental use, nothing contained on the online and mobile resources or in these Terms of Use or the Privacy Statement should be construed as granting you any license or other right to use any Trademark displayed. As between you and us, we are the exclusive owners of all right, title, and interest, including intellectual property rights (including copyrights, patents and trademarks), proprietary rights (including trade secrets and data base rights), and moral rights (including rights of attribution and authorship) throughout the world in and to the online and mobile resources, its Content, and its and their look and feel, design, and organization and compilation, as well as all Trademarks. If you believe any Content appearing on the online and mobile resources violates your intellectual property rights, please give us notice so we can consider appropriate take down procedures.
Social media.
This section applies to everyone who interacts with our social media presence. You are therefore viewing this page because you either linked from the social media features on our online and mobile resources (“Internal Social Media Features”) or from comment sections, feeds, and other elements of social media presence viewable on Facebook, Twitter, YouTube, Google+, LinkedIn, or any of the many other available external third party social media platforms we may utilize (“External Social Media Presence”).
Social media platforms are places of public information exchange, and you should have no expectation of privacy when using them. Specifically, neither these ToU nor our Privacy Statement apply to our External Social Media Presence. The sites and platforms that host our External Social Media Presence are not controlled by us and therefore have their own privacy policies and terms of use. The comments and opinions expressed by users on social media are theirs alone and do not reflect the opinions of OutdoorBody. Comments that some would consider inappropriate or offensive may appear on our Internal Social Media Features as well as our External Social Media Presence and may remain there until they have been identified by us or called to our attention and we are able to work through the necessary procedures and technical processes to have them removed. If you see an offensive or inappropriate post or comment on our External Social Media Presence, you should report it to the operator of the applicable site or platform using the procedures they have established for that purpose. If you see such a post on Internal Social Media Features it should be reported directly to us via the contact information below.
Submitted materials; User generated content.
All information, ideas, suggestions, concepts, or other materials submitted by you voluntarily or at our request, such as questions sent to us via the “Contact Us” link or user generated content on our Internal Social Media Features or External Social Media Presence (collectively, “Submitted Materials”) may be used by us in any lawful manner, provided that personal information portions of Submitted Materials will only be used as described in our Privacy Statement. By providing Submitted Materials you: (a) represent and warrant that you own or otherwise have all necessary rights to do so and that the Submitted Materials comply with all applicable laws; and (b) grant to us a royalty-free, worldwide, perpetual, irrevocable, non-exclusive, and fully transferable, assignable, and sublicensable right and license to copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, make, sell, export, and otherwise use such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed. We cannot be responsible for maintaining any Submitted Materials that you provide to us; therefore, you should retain copies of all such data and information in your own records.
Third party websites and content.
Links from our online and mobile resources.
You may see on the online and mobile resources hyperlinks or pointers to other websites maintained by third parties and we also may provide third party content on the online and mobile resources by framing or other methods (collectively, “Links”). Links are provided for your convenience and information only. The fact that we provide a Link does not mean that we endorse, authorize, or sponsor that website or offering or that we are affiliated with the third party owners or sponsors. Except for the links to our brands and products and services within the online and mobile resources, neither the websites nor parties to which a Link will bring you to are under our control and as such we are not responsible in any way for their availability, content, advertising, products, or materials, including any further links their sites may contain. This means that once you follow an external Link, you are no longer subject to our Privacy Statement. You should, therefore, carefully review the privacy policies and other terms and conditions of use and sale related to any Links. We reserve the right to terminate a Link at any time without notice.
Links to our online and mobile resources.
In general, we do not object to links to our online and mobile resources from third-party sites including social media. If you link to our online and mobile resources, we: (a) reserve the right to object to and delete (or require deletion of) such link at any time, for any reason; and (b) require that you abide by the following rules:
you may not present the link to our online and mobile resources in any manner that suggests we have any relationship or affiliation with your site or endorse, sponsor, or recommend the information, products, services, or content on your site unless we expressly agree to your doing so in writing;
we reserve the right to object to any link which uses Trademarks; and
your link to our online and mobile resources may not in-line, frame, or otherwise incorporate Content unless we grant its express permission in writing.
Links from obscene, scandalous, profane, defamatory, or unlawful sources, or any site that may adversely affect the name, reputation, or goodwill of OutdoorBody and its products and services are prohibited. In addition, the use of Trademarks or other words or codes identifying OutdoorBody or its products and services in any “metatag” or other information used by search engines or other information location tools is strictly prohibited unless we grant express permission in writing.
Warranty disclaimer; Liability and indemnity.
THE ONLINE AND MOBILE RESOURCES, THEIR CONTENT AND PROGRAMS, YOUR ACCOUNT, RENTALS AND PURCHASES AND ANY OTHER INFORMATION, FEATURES AND FUNCTIONS, OR SERVICES ON THEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUTDOORBODY, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS, SHAREHOLDERS, AND REPRESENTATIVES (THE “OUTDOORBODY PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY. IF YOU ARE DISSATISFIED, YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE ONLINE AND MOBILE RESOURCES, THE CONTENT, AND YOUR ACCOUNT.
THE OUTDOORBODY PARTIES HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, (INCLUDING CLAIMS OF DEFAMATION, ERRORS, LOSS OF DATA, OR INTERRUPTION IN AVAILABILITY OF DATA), OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO YOUR USE OF, OR THE INABILITY TO USE, THE ONLINE AND MOBILE RESOURCES, THEIR CONTENT, FEATURES AND FUNCTIONS, YOUR ACCOUNT, RENTALS OR PURCHASES, OR ANY SERVICES THAT YOU ACCESS THROUGH THEM. THESE LIMITATIONS SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE OUTDOORBODY PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE OUTDOORBODY PARTIES IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUTDOORBODY’S TOTAL LIABILITY TO YOU, IN THE AGGREGATE, FOR ALL DAMAGES, LOSSES, AND/OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE ONLINE AND MOBILE RESOURCES, THE CONTENT, OR THESE TERMS OF USE EXCEED (I) FIFTY DOLLARS (U.S. $50),OR (II) THE AMOUNT ACTUALLY PAID BY YOU TO OUTDOORBODY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR FIRST CLAIM IF YOU HAVE RENTED OR PURCHASED CONTENT IN ACCORDANCE WITH SECTION 9 ABOVE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify, and hold the OutdoorBody Parties harmless from any and all claims, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising in any way from your use of the online and mobile resources, the Content, your Account, rentals or purchases, or your breach or violation of applicable laws or of these Terms of Use. OutdoorBody reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with OutdoorBody’s defense of such claim.
Disputes.
IF EITHER YOU OR OUTDOORBODY WANT TO BRING A CLAIM OR CAUSE OF ACTION AGAINST THE OTHER UNDER THESE TOU, OR IF ANY DISPUTE ARISES BETWEEN THE PARTIES AS A RESULT OF THESE TOU OR YOUR USE OF OUR ONLINE AND MOBILE RESOURCES, THE CONTENT, YOUR ACCOUNT OR YOUR RENTALS AND PURCHASES, EACH PARTY AGREES TO USE ARBITRATION AS THE SOLE AND EXCLUSIVE MEANS TO BRING SUCH A CLAIM OR CAUSE OF ACTION OR TO RESOLVE SUCH A DISPUTE. YOU UNDERSTAND THAT BY AGREEING TO THE FOREGOING AND THE MORE SPECIFIC TERMS BELOW, EACH OF YOU AND OUTDOORBODY ARE GIVING UP THEIR RIGHT TO FORM OR BE A PART OF A CLASS ACTION OR OTHER REPRESENTATIVE LAWSUIT. YOU ARE NOT, HOWEVER, WAIVING YOUR ABILITY TO RECOVER DAMAGES. ALTHOUGH ARBITRATION PROCEDURES ARE DIFFERENT FROM COURT PROCEDURES, AN ARBITRATOR CAN AWARD YOU INDIVIDUALLY THE SAME DAMAGES AND RELIEF AS A COURT, AND JUDGMENT ON THAT AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.
As such, both you and OutdoorBody specifically agree that:
Arbitration.
Except for small claims court cases or a claim by us related to intellectual property infringement, all claims, causes of actions and disputes (collectively, “Disputes”) that cannot be resolved by the parties after a good faith effort at negotiation shall be submitted for arbitration administered by the American Arbitration Association (“AAA“). The AAA will apply the Commercial Arbitration Rules to the arbitration of any Dispute pursuant to these Terms, unless you are an individual and use the products and services for personal or household use, in which case the AAA will apply the Consumer Arbitration Rules (excluding any rules or procedures governing or permitting class actions). You can get procedures (including the process for beginning an arbitration), rules, and fee information from the AAA website (www.adr.org).
The party seeking to commence arbitration must first notify the other party in writing at least 30 days in advance of initiating the arbitration. Notice to OutdoorBody should be sent to OutdoorBody Inc., Attn: Legal Department, 307 Segovia Drive, Punta Gorda, FL 33950. We will provide notice to your email address(es) and street address(es), if any, associated with your Account at the time the notice is sent. The notice must describe the nature of the claim and the relief being sought.
All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed unless required by legal, audit, or regulatory requirements. The amount of any settlement offer made by either of us prior to arbitration cannot be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. The arbitration proceedings are subject to the U.S. Federal Arbitration Act and hereby declared to be self executing, and it shall not be necessary to petition a court to compel arbitration. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction.
Unless you and OutdoorBody agree otherwise, the arbitration will occur in U.S. English and take place in Punta Gorda, Florida. Unless the parties agree otherwise, payment of any fees will be decided by the applicable AAA rules.
Notwithstanding the foregoing, nothing in these Terms of Use shall require OutdoorBody to arbitrate a Dispute if it is pursuing a claim related to intellectual property infringement and you agree that venue is proper and personal jurisdiction exists over you in the state or federal court located in Punta Gorda, Florida for this and any related claim.
Class Action Waiver.
YOU AND OUTDOORBODY AGREE THAT EACH MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (COLLECTIVELY, THE “CLASS ACTION WAIVER”). Further, unless both you and OutdoorBody agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If for any reason the Class Action Waiver set forth above cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable Class Action Waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. For the avoidance of doubt, the parties do not agree to class arbitration or to the arbitration of any claims brought on behalf of others.
Term and termination.
These Terms of Use apply to all users of the online and mobile resources at all times until we supersede and replace them. We may at any time terminate, change, suspend, add to, or discontinue any aspect of the online and mobile resources itself, or your right to use it, including your Account, and any Content, without notice or liability to you.
Miscellaneous provisions.
These Terms of Use and the Privacy Statement are the entire and exclusive agreement between us and all visitors and users of the online and mobile resources. Neither any course of conduct between the parties nor trade practice will modify these Terms of Use. We may assign our rights and duties under these Terms of Use to any party at any time without notice to you. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the online and mobile resources, these Terms of Use or the Privacy Statement must be filed by you within one year after such claim or cause of action arose or be forever barred. Should any provision of these Terms of Use be held to be unenforceable, that provision will be limited to the minimum extent necessary and the remaining provisions hereof shall remain in full force and effect. The waiver of any breach of these Terms of Use will not constitute a waiver of any other or future breach and will not act to amend or negate the rights of the waiving party. You many not assign your rights or obligations hereunder. The provisions of these Terms of Use pertaining to disclaimers, exclusion of damages, limitation of liability, and indemnification shall survive termination.
Contact us.
If you have questions, please contact us at OutdoorBody Inc., by email at gowild@outdoorbody.com.