Thank you for your interest in the Biggest Loser Club (the “Program”), a subscription-based online diet and fitness program provided by Digital Wellness LLC (“DW”, “us”, “our”, or “we”) (previously provided by NBCUniversal Media, LLC (“NBCUNIVERSAL”) and before that, Rodale Inc. in conjunction with NBCUNIVERSAL). The Biggest Loser Club takes the lifestyle modification and weight-loss approach of the NBC Network's hit unscripted show, The Biggest Loser, and adapts it for home use with a customizable diet and exercise regimen based on your weight loss goals.
The BiggestLoserClub.com website and related websites, services and applications (collectively, the “Sites”) are maintained by DW and made available to subscribers of the Biggest Loser Club (“Members”).
As described in greater detail below, to become a Member you will sign up for an initial membership period and will be charged the applicable subscription fee (if any) for that period. At the conclusion of the initial period, unless you cancel, your membership will automatically continue and renew on an ongoing basis (e.g., monthly, quarterly), depending on the subscription plan you have chosen, and you will be billed for those renewal periods based on the terms of your specific subscription plan. You can cancel at any time, in which case you won't be refunded the subscription charge for the current billing period, but you'll have Member access through the end of that billing period and won't be billed again. There is no minimum membership period. Our membership, billing, cancellation and refund policies are set forth in more detail in Section 2 below.
By signing up to become a Member of the Biggest Loser Club and/or using the Sites you agree to the terms of conditions of membership and use of the Sites provided below (the “Terms & Conditions”), so please take a moment to review them before you sign up and begin your life-changing weight loss transformation!
We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms & Conditions at any time. You should check these Terms & Conditions periodically for changes. You continued use or accessing of the Sites after we post any changes to these Terms & Conditions constitutes your acceptance of such changes, whether or not you have reviewed them. You agree to be notified of changes to the Terms & Conditions via posting of updates on the Sites. If you do not agree to these Terms & Conditions, you should not use the Sites or become a Member, and, if applicable, you should cancel your membership with us.
Although links to other websites may be available from the Sites, you acknowledge and agree that we are not responsible or liable under any circumstance for such external sites or resources, and do not endorse any content, advertising, products or other materials on or available from such websites or resources.
DW licenses all intellectual and proprietary rights (including but not limited to copyrights, trademarks, services marks and trade names) associated with the Sites, Services and Content herein from NBCUNIVERSAL. As between NBCUNIVERSAL and You, NBCUNIVERSAL owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the Sites, Services and Content. You acknowledge NBCUNIVERSAL’s valid intellectual and proprietary property rights in the Site, Services, and Content and that your use of the Sites and Services is limited to the access, viewing and downloading of Content, all solely as authorized by NBCUNIVERSAL. As a user of the Sites, you agree that you shall download and/or use Content solely for your personal, non-commercial use. You may not use the Content in any matter inconsistent with these Terms & Conditions or applicable law, and you may not copy, modify or alter the Content without NBCUNIVERSAL’s express prior written consent. Nothing in these Terms & Conditions shall be deemed to convey You any right, title or interest in or to the Sites or their content or to any portion thereof.
You may not either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone or other device (each a “device”) or other means remove, alter, bypass, avoid, interfere with, or circumvent (i) any copyright, trademark, or other proprietary notices marked on the online services or Content, (ii) any digital rights management mechanism, device, or other content protection or access control measure associated with the online services or Content, or (iii) any advertisement on the online services and/or within Content. You may not either directly or through the use of any device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit Content unless expressly permitted by NBCUniversal in writing. You may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links, or scrape or aggregate Content from the Site or online services. You may not build a business, in whole or in part, or create derivative works or materials utilizing any portion of the online services or Content, whether or not for profit.
To the extent that NBCUniversal makes Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another site, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism, device, or other content protection or access control measure associated with Content, or any advertisement delivered with Content.
You are also prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to allow users to view Content without: (i) displaying visibly both Content and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks); and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access and use the Sites and the material provided hereon for your personal, non-commercial use, provided that you comply fully with the provisions of these Terms & Conditions. The Sites (including any Products) are for the personal use by our users only and may not be used in connection with any commercial endeavors. Illegal and/or unauthorized use of the Sites, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Sites will be investigated, and may result in the termination or cancellation of your access to, or use of, the Sites. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from user profiles without notice and may result in termination of membership privileges. Legal action may be taken by us for any illegal or unauthorized use of the Website.
Please note that the BiggestLoserClub.com is not available or intended for use by residents outside of the United States.
1. Health and Medical Disclaimer
2. Offer, Payment and Billing Terms
3. Community Standards and Conduct Guidelines
4. General Terms and Conditions
1. HEALTH AND MEDICAL DISCLAIMER
THE WEIGHT LOSS INFORMATION AND OTHER CONTENT PRESENTED ON THE SITES ARE INTENDED ONLY FOR EDUCATIONAL PURPOSES AND TO ASSIST MEMBERS TO ACHIEVE THEIR PERSONAL WEIGHT LOSS GOALS. DW is not a medical organization and cannot give you medical advice or diagnosis. THE CONTENT AND SITE ARE NOT INTENDED AS A SUBSTITUTE FOR MEDICAL COUNSELING OR CONSULTATION. YOU SHOULD CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING THIS OR ANY OTHER DIET OR FITNESS PROGRAM OR IF YOU HAVE ANY QUESTIONS ABOUT YOUR HEALTH. DO NOT START ANY DIET OR FITNESS PROGRAM WITH US IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. THE BIGGESTLOSERCLUB.COM IS INTENDED FOR HEALTHY ADULTS. INDIVIDUALS WHO ARE PREGNANT OR WHO HAVE CERTAIN HEALTH CONDITIONS, INCLUDING, WITHOUT LIMITATION, PEOPLE SUFFERING FROM CANCER, LIVER DISEASE, KIDNEY DISEASE, RENAL FAILURE, EATING DISORDERS, TYPE 1 DIABETES OR WHO ARE ELDERLY OR WHO HAVE A LOW BODY MASS INDEX MAY NOT BE SUITABLE CANDIDATES FOR UNDERTAKING ANY FORM OF HEALTH OR FITNESS REGIMEN AND ARE SPECIFICALLY WARNED TO SEEK PROFESSIONAL MEDICAL ADVICE BEFORE USING THE SITES. DW RESERVES THE RIGHT TO REFUSE OR CANCEL YOUR MEMBERSHIP OR USE OF THE SITES IF WE DETERMINE THAT YOU HAVE OR IF YOU INFORM US THAT YOU HAVE CERTAIN MEDICAL CONDITIONS INCLUDING THOSE REFERENCED HEREIN. DW RESERVES THE RIGHT TO CANCEL YOUR MEMBERSHIP SHOULD YOU VIOLATE THESE TERMS AND CONDITIONS AND ANY OTHER POSTED POLICY ON THE SITES AS DETERMINED BY DW IN ITS SOLE DISCRETION.
In becoming a Member with the intent of using the Sites, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of the Sites.
And in becoming a Member with the intent of using the Sites, you further affirm that either (A) all of the following statements are true: (i) you are not allergic to nuts, eggs, dairy products or any other foods; (ii) you are not presently following a diet plan provided to you by a physician or other medical professional for health reasons; and (iii) you have not been medically diagnosed as suffering from diabetes, hypoglycemia, heart disease, high cholesterol or high blood pressure; or (B) your physician has specifically approved your use of the Sites.
And if you are a woman, in becoming a Member with the intent of using the Sites you further affirm that either (A) you are not pregnant, breastfeeding or lactating or (B) your physician has specifically approved your use of the Sites.
You are advised that health, diet & fitness advice is often subject to updating and refining due to medical research and developments. No assurance can be given that the Content will reflect the most recent findings or developments with respect to the particular material. You are encouraged to consult with your health care provider with any questions or concerns you may have regarding any health condition.
2. OFFER, PAYMENT AND BILLING TERMS AND CONDITIONS
A. CHARGES AND FEES FOR PRODUCTS:
By subscribing to or purchasing a Product, you agree as follows:
a. To pay, using a valid credit card (or other form of payment which we may accept from time to time), the fixed and periodic charges and fees set out on this Website, applicable taxes, and other charges, surcharges, costs and fees incurred in order to access or purchase our Products (“Fees”).
b. With regard to fee-based Products (for example, subscription based offerings) (“Fee-Based Products”) we:
i. reserve the right to increase the Fees, or to introduce new Fees at any time, upon reasonable advance notice communicated to you through a posting on the Sites or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail).
ii. will automatically charge your credit card or other account at the start of the relevant billing period (usually monthly or three-monthly in advance) unless you terminate or cancel your subscription before the start of the relevant billing period.
Each time you use or apply for our Fee-Based Products, you reaffirm your agreement that we may charge your credit card (or other form of payment, if applicable). In the event we cannot charge your account, we reserve the right to terminate your access to our Fee-Based Products. Unless you advise us otherwise in advance, your subscription to Fee-Based Products will automatically be renewed at our standard subscription rates and for our standard period (usually monthly or three-monthly) at the start of the relevant billing period. If you wish to purchase alternative Fee-Based Products at any time, your new Fee-Based Products will supersede your current Fee-Based Products at the start of the next billing period, unless we agree otherwise.
a. All Fees are quoted in United States Dollars and are exclusive of any applicable taxes, except where otherwise stated.
b. In addition to the Fees, you are responsible for all charges and fees associated with connecting to the Sites, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Products.
c. For the purposes of your use and purchase of our Products, including identification and billing, you agree to provide us with true, accurate, current and complete information, as required by us ("Subscription Data") including your complete legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date) as required. You agree to maintain and promptly update the Subscription Data to keep it accurate at all times.
You agree to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account.
Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that this is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of the Sites (or any portion thereof) or any of our Products.
d. In the event of your failure to satisfy limitations we set based on demographic, geographic, health and/or other similar criteria, or if we otherwise properly terminate your subscription to one of our Fee-Based Products prior to the end of the applicable period in accordance with these Terms & Conditions, or if you cancel your subscription to one of our Fee-Based Products, you agree that the full Monthly Fees paid in advance by you for any month (or portion thereof) (regardless of whether you logged onto the Sites or used the Fee-Based Product during that month) are non-refundable..
e. Certain products or Services may be offered for sale on the Sites. In the event you wish to purchase or to subscribe for any of these products or Services, you will be asked by DW to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide DW with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchases. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes.
The availability and use of our Products may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to, purchasing, or accessing any of our Products at any time based on these criteria. For example, pregnant women, and individuals under the age of 18 may not be be able to subscribe to our Fee-Based Products. Further, we may limit access to certain Products only to individuals currently attending meetings organized or controlled by us.
f. If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to immediately and without notice, either suspend or terminate your access and account, thereby terminating all of DW’s obligations under this Agreement. You are required to pay any amounts still owed to us at the time your account is suspended or terminated.
To review the billing terms of your account, you may email [email protected]
B. CANCELLATION POLICY:
Either you or we may terminate or cancel your subscription or access to our free or Fee-Based Products at any time.
Cancellation will become effective at the end of the then-current billing period and will not be renewed at the conclusion of that billing period. Upon the date that cancellation or termination of your subscription to our Fee-Based Products takes effect, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, and/or the Sites (or part thereof).
You may cancel your subscription by emailing us at [email protected]; or by calling 1-888-987-3684. Our service center is open Monday – Friday 7am to 7pm Central Standard Time, Saturday 8am to 5pm Central Standard Time, and Sunday 10am to 5pm Central Standard Time. We will attempt to process all email cancellation requests within 72 hours after receipt of requests. We will confirm receipt of your cancellation request via email. We are under no obligation to cancel your account or provide any refund unless your cancellation request is actually received by it in accordance with this policy.
If you cancel your subscription during any billing period, you will not be entitled to a refund for any portion of such billing period. We reserve the right to charge and collect Fees incurred before your cancellation takes effect.
C. DIGITAL ITEMS, SUBSCRIPTIONS AND CREDITS
Purchases of usage subscriptions (including credits, points, and/or virtual currency) or any virtual items made available on the online services are nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use, even if such came with a durational term (e.g., a monthly subscription). Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your usage subscriptions or virtual items, which remain our Content. The right may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. We may modify usage subscriptions and virtual items at our sole discretion, and such modifications may make the usage subscriptions or virtual items more or less common, valuable, effective, or functional.
We do not recognize the transfer of usage subscriptions or virtual items (including for “real” money or any other consideration or items of value whether inside our outside of the online services). Accordingly, you may not purchase, sell, barter, or trade any usage subscriptions or virtual items, or offer to purchase, sell, or trade any usage subscriptions or virtual items. Any such attempted transfer will be null and void.
If we suspend or terminate any usage subscriptions or virtual items, then you will forfeit the suspended or terminated subscription or items, except as may be set forth in any Additional Terms (such as any refund policies that may apply to a subscription service). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any usage subscriptions or virtual item, or for loss or damage due to error, or any other reason.
3. COMMUNITY STANDARDS AND CONDUCT GUIDELINES
You acknowledge that all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted by third parties to, on or through the Sites, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the "Postings"), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to, on or through this Website. We do not control the Postings of others and, as such, you agree that we have no responsibility for the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of this Website (as described below), you understand that by using the Sites, you may be exposed to Postings that are (without limitation) inaccurate, offensive or objectionable. To the maximum extent permitted by applicable law under no circumstances will we be liable in any way for any Postings, including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the access to or use of any Postings posted, emailed or otherwise transmitted to, on or through the Sites
A. POSTING GUIDELINES: You agree to follow our Community Guidelines that includes these provisions:
You agree not to use the Sites (including any Forums) to do, or attempt to do, any of the following (as to which you agree to accept us as sole arbiter in our absolute discretion):
a. upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, bullying, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, defamatory, invasive of another's privacy, hateful, or racially, ethnically, religiously, sexually or otherwise inappropriate or objectionable;
b. harm, wrongly influence or threaten children in any way;
c. impersonate any person or entity, including, but not limited to, a director, officer, employee, shareholder, agent or representative of DW, our Affiliates or any other person or entity, or falsely state or otherwise misrepresent an affiliation with us, any of our Affiliates or any other person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to, on or through this Website;
e. upload, post, email or otherwise transmit any Postings or other materials that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment or other contractual relationships or under non-disclosure agreements);
f. upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trade mark, trade secret, moral right, copyright, right of privacy or publicity or other proprietary rights of any party;
g. upload, post, email or otherwise transmit any unsolicited or unauthorized advertising or promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of commercial solicitation or promotion, except in those areas, if any, that are specifically designated for such purpose;
h. upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy, limit, compromise, delay or divert the functionality of any computer software or hardware or telecommunications equipment;
i. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of a Forum (or other portion of the Sites) are able to type, or otherwise act in a manner that negatively affects other users' ability to use any Forum;
j. interfere with or disrupt the Sites or servers or networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites;
k. intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to, any law and/or regulations having the force of law;
l. "stalk" or otherwise harass another user of the Sites or employee of DW or of any of our Affiliates;
m. collect or store personal data or attempt to collect or store personal data about other users of the Sites; or
n. upload, post, email or otherwise transmit information which purport to be medical, health or weight-loss advice or advice of any other nature whatsoever.
Your privilege to use the Sites (including the Forums) and to contribute to discussions on the Forums depends on your compliance with the community standards and conduct guidelines set forth above. We may require, at any time, proof that you are following these rules. We may revoke your privileges to use all or a portion of the Sites and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, we may terminate, in our sole discretion and without providing any reasons, your use of, or participation in, any Forum.
All Forum communications, including, but not limited to, message board communications, are public and not private communications. We reserve the right to monitor any areas of the Sites (including any Forum) for adherence to the community standards and conduct guidelines set forth above or for any other purpose, but you agree we have no obligation or duty to do so and you release us from any such obligation or duty. You acknowledge that, by providing you with the ability to distribute Postings in the Forums, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any Postings or activities in any Forum. Although we reserve the right to remove, without notice, any Forum posting for any or no reason, we have no obligation to delete Postings that you may find objectionable, inappropriate or offensive. In addition, message board communications may be used by DW for any purpose without requiring permission of the originator.
Understand that Postings made by members do not necessarily reflect the views of DW and should not be taken as medical advice. Further, DW does not endorse any information posted in the Forums. Please consult a physician or other relevant expert (depending on the nature of the information) before practicing anything you read on the Forums or using any information from the Forums. DW is not responsible for the information posted on the Forums or for editing any factual errors or making any type of corrections to information presented on the Forums. Any action taken by a viewer of the Forums based on information presented in the Forums is at your own risk and could be dangerous or life-threatening.
While we may offer you the ability to post Postings anonymously, please be aware that your account information relating to your Posting is still stored by us.
B. EMAIL RULES: Some of our Members will make their email addresses available if they wish to converse with other users. If you use this information, you agree not to transmit "spam" or other unwanted solicitations, or any material that is harassing, threatening, racially offensive, obscene, abusive, harmful, defamatory, invasive of another's privacy, infringing of another's intellectual property rights, or illegal. Members found using email information in this manner may, at the sole discretion of DW, have their membership cancelled without notice. DW is not responsible for the content of email messages sent by a Member or from a third party.
C. THIRD PARTY CONTENT: Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties on the Sites or on Sites that are linked to the Sites, including information providers, are those of the respective third parties, and not DW. DW does not guarantee the accuracy, completeness, or usefulness of any third party content. Furthermore, DW neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on any of the Sites or on any site that might be linked to the Sites by anyone other than an authorized DW representatives acting in their official capacity.
4. GENERAL TERMS AND CONDITIONS
By using the Sites, you agree to be legally bound and to abide by these Terms & Conditions, just as if you had signed an agreement containing these Terms & Conditions. We may, at any time, in our sole discretion and without prior notice or liability, modify or alter any aspect of the Sites. In addition, we reserve the right, at any time and in our sole discretion, and without any notice or liability, to take any action with respect to the Sites, including without limitation, the ability to terminate your password, user account and its contents, refuse to permit you to post or remove any postings to the Website, restrict the time the Sites are available, or restrict the amount of use permitted and/or access to any part of the Sites. You agree that any termination or cancellation of your access to, or use of, the Sites may be effected without prior notice, and that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, the Sites or your user account.
We may supplement these Terms & Conditions with additional terms and conditions pertaining to specific content, activities or events ("Additional Terms"). Such Additional Terms may be placed on this Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such, and any Additional Terms will upon first being placed on this Website, or otherwise made public, be incorporated by reference into and form part of these Terms & Conditions.
A. MINIMUM AGE REQUIREMENTS: You must be 18 years of age or older to sign up for this program and access the Sites.
B. COMMUNICATIONS: You agree that as part of the service provided on the Sites, you shall receive periodic email communications from DW. You affirmatively consent to receive those emails. If you use the opt-out mechanism provided by DW , DW shall have the right, but not the obligation, to terminate your account and, notwithstanding any other provision of this Agreement, the right to give you a pro-rata refund.
By making any Submissions, you give up any claim that any use of a Submission, or any part or derivative element of a Submission, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, publicity rights, rights to credit for material or ideas, or any other right, including the right to approve the way DW or any Affiliate uses such material. DW and/or any Affiliate is free to use, without any compensation to you, any Submission you send to us or this Website for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such Submission, and you agree that there is no industry or other custom or practice that will vary these Terms & Conditions. However, you agree and understand that neither DW nor any Affiliate is obligated to use any Submissions and you have no rights to compel such use.
i. Use of Name and Likeness: By making any Submissions, you consent to the recording, use and reuse by DW, its Affiliates, licensees, successors and assigns, of your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, including, without limitation, any information contained in your User Content (collectively, “Personal Elements”), as used, edited, altered, fictionalized or modified by DW, in its sole discretion, in any and all media now known or hereafter devised, throughout the world, in perpetuity, including, without limitation, in and in connection with DW, or related Sites or online services, in and in connection with any television programs and other productions, and in and in connection with advertising, promotion and publicity.
2. Ownership: Except as expressly set forth in these Terms of Service, you shall continue to own all rights in and to the Submissions. To the extent your Submission contains other materials or elements owned by DW, NBCUNIVERSAL, or any other affiliated company, such as characters or other elements protected by copyright, trademark or other laws, your rights to make any other use of the Submission will continue to be governed by and may be limited by other applicable laws, the rights of third parties, DW, and NBCUniversal.
3. Idea Submissions Prohibited: DW does not accept unsolicited submissions for motion pictures, television programs, websites, articles, streaming video, e-books, or other products or services. Therefore, please do not make any such unsolicited submissions to DW through the online services, including posts on our Site or any third party social network or website, by e-mail, text message or otherwise. However, if you decide to make any such unsolicited submission, you hereby grant to DW and its Affiliates the right and license to the submission as if it were User Content as specifically set forth above. In addition, DW retains all of the rights held by members of the general public with regard to your unsolicited ideas and materials. DW’s receipt of your unsolicited ideas and materials is not an admission by DW of their novelty, priority, or originality, and it does not impair DW’s right to contest existing or future intellectual property rights relating to your unsolicited ideas and materials.
You warrant to DW and its Affiliates that:
a. you own or otherwise control all of the rights in or to your Submissions including, without limitation, all the rights necessary for you to send, email, post or otherwise transmit to us the Submissions;
b. any third party holder of any Rights, including moral rights in such Submissions, has validly and irrevocably granted to you the right to grant the Rights and give the consent stated above; and
c. each person depicted in any images, photos and/or videos contained in your Submissions (if any) has consented to the use of such images, photos and/or videos in accordance with the above licence; and
d. each of DW and the Affiliates and their successors and assigns shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without being obliged or required to give or pay any compensation to the provider of the Submissions or any third party holder of any Rights.
e. your Submission(s) is being sent voluntarily by you, and not in confidence, and that no confidential relationship is intended or created between DW and/or any other person or entity, on the one hand, and you, on the other hand, by your Submission(s).
D. ACCOUNTS, PASSWORDS and SECURITY: If any of the Sites require you to open an account, you must complete the registration process by providing DW with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to DW that is untrue, inaccurate, not current or incomplete, DW reserves the right to terminate this Agreement and your continued access and use of the Sites.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT, INCLUDING LOSS, THEFT, OR UNAUTHORIZED DISCLOSURE OF YOUR OR ANYONE ELSE’S PASSWORD OR CREDIT CARD INFORMATION. You agree to notify DW immediately of any known or suspected unauthorized use of your account or any other known or suspected breach of security. DW will not be liable for any loss or damages of any kind that may arise as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by DW or another party due to someone else using your account or password, and you may be responsible for paying any amounts billed to your credit card by a third party which were not authorized by you.
You understand and agree that the Sites may include a social network and your activities (e.g., video viewing, interactions with members and/or advertisers) may be shared with others both on and off the Sites.
E. WIRELESS AND LOCATION-BASED FEATURES
a. Wireless Features. The Sites may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the online service’s features and upload content to the online services, receive messages from the online services, and download applications to your wireless device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
b. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the online services for Wireless Features, then you agree to notify DW of any changes to your wireless contact information (including phone number) and update your accounts on the online services to reflect the changes.
In addition, where any DW Mobile App collects precise information about the location of your devices, it will be used to provide requested location services, and, depending on the particular Mobile App it may be used, amongst other uses, to allow tagging or to check-in.
Some Mobile App(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate device location tracking by us by uninstalling any Mobile App(s) or feature(s). The location-based services offered in connection with our Mobile App(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use – other non-DW products exist today that may be used specifically for these purposes.
d. Social media plug-ins. Social media plug-ins of social networks such as Facebook, Twitter and Google plus (amongst others) are integrated on our Sites and other online services. Where our contain a plug-in to a social network, these are clearly marked (e.g. with a Facebook button). If you chose to click on one of these buttons or links, your browser connects directly to the servers of the relevant social network. The social network directly transmits the content of the plugin to your browser. If you are registered on the relevant social network and logged into your respective account the social network receives the information that the web page was used by you. If you interact with a social network plug-in (e.g. you press the Facebook “Like” –feature, the Twitter “Tweet this” feature and Google plus “1+” button or equivalent) or drop a comment on the appropriate web page, the corresponding information is directly transmitted to the relevant social network from your browser. If you are not registered with the social network or you are logged out before you visit our online services, there is the possibility that at least your IP address will be submitted to and stored by the social network. If you interact with us through a social media platform, plug-in etc., then you may be permitting us to have on-going access to some limited information from your social network profile (such as name, social networking id page, email address, photo, gender, location, the people/sites you follow etc.).
F. PROMOTIONS, CONTESTS AND SURVEYS: DW occasionally provides contests, sweepstakes, games and third party promotions on the Sites, or may provide surveys that request you to send in to us or post on the Sites material or information about yourself. The rules, regulations and procedures governing any of the foregoing promotions or surveys shall be accessible through a hyperlink displayed on the web page where the applicable promotion or survey is located. Participation in these promotions or surveys is completely voluntary and the user therefore has a choice whether or not to disclose any information that may be requested in connection with such promotions or surveys. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures. Please remember to read the rules carefully before participating.
G. LIMITED LICENSE: Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access and use the Sites and the material provided hereon for your personal, non-commercial use, provided that you comply fully with the provisions of these Terms & Conditions. The Sites (including any Products) are for the personal use by our users only and may not be used in connection with any commercial endeavors. Illegal and/or unauthorized use of the Sites, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Sites will be investigated, and may result in the termination or cancellation of your access to, or use of, the Sites. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from user profiles without notice and may result in termination of membership privileges. Legal action may be taken by us for any illegal or unauthorized use of the Sites.
H. PROHIBITED ACTIVITIES: In connection with your use of the Sites, you acknowledge and agree that you will not:
i. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Sites;
ii. access the Sites by any means other than through the standard industry-accepted or DW-provided or authorized interfaces;
iii. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
iv. use any of the Sites' communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
v. delete or revise any material posted by any other person or entity;
vi. manipulate or otherwise display the Sites by using framing or similar navigational technology;
vii. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any DW product or service if you are not expressly authorized by such party to do so;
viii. violate any of the Community Standards and Conduct Guidelines set forth in Section 3 of these Terms & Conditions; or
ix. use the Sites for any purpose that is unlawful or prohibited by these Terms & Conditions. You may not use the Sites in any manner that could damage, disable, overburden or impair DW’s servers or networks, or interfere with any other user's use and enjoyment of the Sites. Furthermore, you may not attempt to gain unauthorized access to any of the Sites, services, accounts, computer systems or networks connected to DW through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Sites.
J. Infringement Policy:
DW respects the intellectual property of others, and we ask our users to do the same. DW, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right, but not the obligation, to terminate your license to use the Site or Services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. DW accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, in compliance with the Act, if you believe that any such third party materials infringe your intellectual property; please send a written notice to the agent identified below to request a review of the alleged infringement:
By mail: Digital Wellness LLC, 11611 San Vicente Blvd, Suite 800, Los Angeles, CA 90049
By e-mail: [email protected]
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Sites or Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.
- Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit DW to locate the material.
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or email address.
- 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 or other proprietary right owner, its agent, or the law.
- A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
K. CHILDREN’S ONLINE PRIVACY PROTECTION ACT NOTIFICATION:
The BiggestLoserClub.com and the Sites are not designed or intended for use by children under the age of 18.
L. DISCLAIMER OF WARRANTIES: THE SITES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITES AND SERVICES, INCLUDING BUT NOT LIMITED TO THE BIGGESTLOSERCLUB.COM, ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, OR ACCURACY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DW AND ITS AFFILIATES, SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, (iv) THAT THE SITES SHALL BE AVAILABLE WITHOUT DELAY, FAILURE, INTERUPTION OR CORRUPTION DUE TO LOCAL EXCHANGES, INTER-EXCHANGES, CARRIER LINES, ROUTES, SWITCHES AND OTHER EQUIPMENT OWNED BY THIRD-PARTIES or (v) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES IS ENTIRELY AT YOUR OWN RISK.
YOU ARE SOLELY RESPONSIBLE FOR ANY INJURY TO YOU OR YOUR PERSONAL COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION IN THE SITES OR FROM DOWNLOADING ANY MATERIALS OR CONTENT FROM THE SITES.
WE MAKE NO WARRANTIES OR ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, SERVICES, CONTENT AND MATERIALS IN THE SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR MEMBER OF THE WEBSITE.
You acknowledge that, by undertaking any nutritional or fitness regime on the Sites or using any of our products, you are doing so voluntarily and you are aware that there may be dangers in participating in doing so. You agree to use the Sites and our Products in a manner that is not reckless or dangerous to yourself or other people.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
M. RELEASE: YOU UNDERSTAND AND AGREE THAT NEITHER DW, NBCUNIVERSAL, SHINE US HOLDINGS, INC. NOR THEIR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, CONTENT PROVIDERS, PARTNERS OR SUPPLIERS ("RELEASED PARTIES"), SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITES OR ITS SERVICES. YOU FURTHER AGREE TO HEREBY AND FOREVER RELEASE AND WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ANY RELEASED PARTIES FOR ANY AND ALL CLAIMS, CAUSES, DAMAGES OR LOSSES UNDER ANY THEORY OF LIABILITY (INCLUDING ATTORNEYS' FEES AND ASSOCIATED COSTS AND EXPENSES) ARISING FROM YOUR USE OF THE SITES. NOTWITHSTANDING THE FOREGOING, OUR TOTAL LIABILITY TO YOU BY ANY RELEASE PARTY SHALL NOT EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING).
N. LIMITATION OF LIABILITY: YOU EXPRESSLY AGREE AS A CONDITION OF USING THE SITES THAT NEITHER DW, NBCUNIVERSAL AND IT SUBSIDIARIES, SHINE US HOLDINGS, INC. AND ITS SUBSIDIARIES (collectively “SHINE”), NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITES; (ii) ANY CONTENT CONTAINED ON THE SITES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITES; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITES, or (vii) ANY OTHER MATTER RELATING TO THE SITES. THIS LIMITATION APPLIES EVEN IF DW, NBCUNIVERSAL OR SHINE AS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL DW’S, NBCUNIVERSAL'S OR SHINE’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING). IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, NEITHER DW, NBCUNIVERSAL NOR SHINE SHALL BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH PARAGRAPH 4.D (REGISTRATION, PASSWORDS, UNAUTHORIZED USE OF YOUR ACCOUNT, SHARING OF SOCIAL FEATURES) OR (2) CONTENT POSTED TO THE SITE OR SERVICES BY YOU OR ANY THIRD PARTY.
O. NOTICES: DW may deliver notice to you under this Agreement or any other published policy on the Sites by email, a general notice published on the Sites or by first class U.S. Mail to the street address provided by you at the time you become a member. DW will never request any personally identifiable information from you via electronic or postal mail. If you receive an email or postal mail that purports to be from us that requests personally identifiable information from you, and specifically, your credit card number, please do not reply to that email or request. You may give notice to us via email, by certified U.S. Mail postage prepaid or by nationally recognized overnight courier to the following address:
Digital Wellness, LLC
11611 San Vicente Blvd
Los Angeles, CA 90049
P. GEOGRAPHIC LIMITS OF SERVICE: DW makes no representation or warranty that the content and materials on the Sites are appropriate or available for use in locations outside the United States, its territories and possessions. Those who choose to access the Sites from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. DW reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Sites to any person, geographic area, or jurisdiction we so desire. Software from the Sites are further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported (A) 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 (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Sites, 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.
Q. TERMINATION: This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that DW, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites, and remove and discard any content within the Sites, at any time and for any reason. You agree that any actions taken under this Paragraph may be effective without prior notice to you. In the event of termination, however, those portions of this Agreement that provide for continuing obligations on your part shall survive indefinitely.
R. INDEMNIFICATION: You agree to defend, indemnify and hold harmless DW, NBCUNIVERSAL, SHINE and their parent and subsidiary companies and divisions, affiliates and respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or accruing from (a) any material posted or otherwise provided by you (including without limitation Submission Materials), or any other user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy, (b) any misrepresentation made by you in connection with your use of the Sites; and (c) any breach of any of the representation, warranties or other terms or conditions relating to use of your Submission Materials.
S. ASSIGNMENT: You may not assign or transfer your rights or the license granted to you under this Agreement without DW’s express, prior written consent. Any attempt to assign or transfer your rights or license shall immediately terminate this Agreement and, notwithstanding anything to the contrary herein, you shall forfeit any amounts paid, without a right to a refund.
DW may assign its rights and interest in this Agreement or otherwise at any time and without notice to you or your consent.
T. BINDING ARBITRATION OF ALL DISPUTES:
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms & Conditions, if you have any dispute or disagreement with us, including NBCUNIVERSAL or SHINE regarding (i) your use of or interaction with the Sites, (ii) any purchases or other transactions or relationships with DW, or (iii) any Submission Materials or other data or information you may provide to DW or that DW may gather in connection with such use, interaction or transaction (collectively, “DW Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Sites, or engaging in any other DW Transactions or Relationships with us, you agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our the Sites, you agree that any complaint, dispute, or disagreement you may have against DW, NBCUNIVERSAL or SHINE, and any claim that DW, NBCUNIVERSAL or SHINE may have against you, arising out of, relating to, or connected in any way with these Terms & Conditions, our respective privacy policies, or any DW Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, DW, NBCUNIVERSAL or SHINE agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Paragraph Q, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 4.T shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that:
a) the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and DW, NBCUNIVERSAL or SHINE (the “Arbitrator”);
b) the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms & Conditions and/or these arbitration provisions in Section 4.Q hereof, including but not limited to any claim that all or any part of these Terms & Conditions is void or voidable;
c) the Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and DW, NBCUNIVERSAL or SHINE; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
d) the Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
e) the Arbitration can resolve only your and/or DW, NBCUNIVERSAL or SHINE’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
f) the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
g) in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, DW, NBCUNIVERSAL or SHINE will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
h) in the event you recover an Award greater than DW’s, NBCUNIVERSAL’s or SHINE’s last written settlement offer, the Arbitrator shall also have the right to include in the Award DW’s, NBCUNIVERSAL’s or SHINE’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but DW, NBCUNIVERSAL and SHINE shall in all events bear their own respective attorneys’ fees; and
i) with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor DW, NBCUNIVERSAL or SHINE shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
j) DW may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after DW has given notice of such modifications and only on a prospective basis for claims arising from DW Transactions and Relationships occurring after the effective date of such notification.
k) Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against DW, NBCUNIVERSAL or SHINE in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
U. Member Disputes:
You are solely responsible for any interaction with other Members or visitors to the Sites, and DW reserves the right, but shall have no obligation, to monitor disputes between you and any other Member or visitor of the Sites.
V. Notice for California Users:
Under California Civil Code Section 1789.3, California users of the Sites are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210 Updated on Feb 28, 2011
W. Terms Applicable For Apple iOS:
If you are accessing or using the Sites through an Apple device, the following additional terms and conditions are applicable to you and are incorporated into the Terms & Conditions by this reference:
(a) To the extent that you are accessing the Sites through an Apple device, you acknowledge that these Terms & Conditions are entered into between you and DW and, that Apple, Inc. (“Apple”) is not a party to these Terms & Conditions other than as third-party beneficiary as contemplated below.
(b) The license granted to you in these Terms & Conditions is subject to the permitted Usage Rules set forth in the App Store Terms (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Sites.
(c) You acknowledge that DW, and not Apple, is responsible for providing the Sites and Content thereof.
(d) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the online services.
(e) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the online services.
(f) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms & Conditions, you acknowledge that, solely as between Apple and DW, DW, and not Apple is responsible for addressing any claims you may have relating to the Sites, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Sites fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. As set forth under these Terms & Conditions, DW’s liability to you for use of the online services is greatly limited.
(g) Further, you agree that if the Sites, or your possession and use of the Sites, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(h) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms & Conditions, and that, upon your acceptance of the terms and conditions of these Terms & Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions against you as a third-party beneficiary thereof.
(i) When using the Sites, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the online services.
W. MISCELLANEOUS TERMS AND CONDITIONS:
i. Entire Agreement: These Terms & Conditions constitute the entire agreement and understanding between you and DW and governs your use of the Sites, superseding any prior agreements between you and DW.
ii. Applicable Law: These Terms & Conditions and the relationship between you and DW shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions.
iii. Venue: Any court action arising from, relating to or in connection with these Terms & Conditions will be brought exclusively in the federal or state courts located in Los Angeles, California, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
iv. No Waiver: The failure of DW to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Further, no waiver by DW of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.
v. Severability: If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from this agreement and shall not affect the validity and enforceability of any remaining provisions.
vii. Connectivity: You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Sites and you will be responsible for all charges related to them.
v. Updates to Terms & Conditions: These Terms & Conditions may be modified only by our posting of changes to these Terms & Conditions on this Website, or by written agreement between you and DW. Each time you access the Sites, you will be deemed to have accepted any such changes. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms & Conditions and any applicable Additional Terms each time you use the Sites (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms & Conditions (and any applicable Additional Terms) that applied when you previously used the online service will continue to apply to such prior use (i.e., changes and additions are prospective only) except as mutually agreed. In the event any notice to you of new, revised or Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, your message account and the e-mail you associated with your account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or additional Terms of Service by discontinuing use of the Sites and related online services.