Ouch!  VIRTUAL WORKOUTS TERMS OF USE AND WAIVER

These TERMS OF USE AND WAIVER (this “Agreement”) concerns all virtual workouts provided by Ouch!, including but not limited to, all workouts, fitness routines, training, camps, or any other form of exercise led remotely, by video, group chat, prior recording, or any other electronic means, provided by Ouch!, www.ouchrelief.com and hosted on any third party platform such as Facebook, Instagram, Typeform, or Zoom (“Workouts”). This Agreement is made and entered into by and between you and any person helping you visit, access, register with, and/or use the Workouts (collectively, “you” or “your”), on the one side, and Bread Butter and Whiskey, LLC dba Ouch! (“Company”), on the other side.  You and Company are sometimes referred to herein each as a “Party” and together as the “Parties.”

Please read this Agreement carefully before accessing or using the Workouts because it constitutes a legally binding agreement between you and Company.

When you access the Workouts you are automatically accepting and agreeing to the most-recent version of this Agreement.

Similarly, by visiting, accessing, or using the Workouts you are automatically accepting and agreeing to the most-recent version of this Agreement, and your continuing visit, access, or use of the Workouts reaffirms your acceptance and agreement in each instance.

Furthermore, by visiting, accessing, or using the Workouts you are automatically accepting and agreeing to the Terms of Use and Waiver for www.ouchtherapy.com and any Ouch! recommendations made by therapists through third party platforms.

If you do not accept and agree to this Agreement in its entirety, then you are strictly prohibited from visiting, accessing, and/or using the Workouts.

Company may supplement, amend, or otherwise modify this Agreement at any time.  Such modifications will be posted on this or a similar page of the Workouts, as applicable, and shall be deemed effective as of their stated effective or modification date.  It is your responsibility to carefully review this Agreement and your User Account (defined below) each time you visit, access, or use the Workouts.

1. Eligibility.  The Workouts are offered only to individuals eighteen (18) years of age or older who are located in the United States of America and who have accepted this Agreement.  By visiting, accessing, registering with, or using the Workouts, or by purchasing or using any of the Services (defined below), you represent and warrant to Company that you meet these eligibility requirements.  You agree to comply with all applicable laws for visiting, accessing, registering with, and using the Workouts and for purchasing and using the Services, and you may only use them for lawful purposes.

2. Privacy.  Company respects your privacy and the use and protection of your personal information.  Company’s policies concerning the collection and use of your personal information in connection with the Workouts are set forth in the Privacy Policy, which you should carefully review each time you visit, access, or use the Workouts.

3. Services.  The Workouts are intended to enable you to continue to partake in postural therapy and other fitness services offered by Company (collectively, the “Service(s)”).  Unless otherwise agreed to by you and Company in a separate written agreement, the Workouts, and the Services are made available to you solely for your personal, noncommercial use.

4. Your Devices.  Certain portions of the Workouts may be configured for, and Company may offer the Workouts through, computers, tablets, smart phones, and/or other electronic devices (“Device(s)”), and this Agreement shall apply with equal force and measure to your visit, access, and use of the Workouts through such Devices.  You are responsible for obtaining and updating the Device, software, operating system, carrier, and network access necessary to properly access and use the Workouts.  Company does not guarantee that the Workouts, or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network.  If you visit, access, or use the Workouts through a particular Device, then you hereby acknowledge and agree that information about your use of the Workouts through that Device or its carrier or network (such as, by way of example only, the identity of your Device or its carrier or network) may be communicated to Company and/or certain third parties.  The voice, message, and data fees, rates, charges, and taxes of your Device’s carrier or network, or another third party, may apply to your visit, access, and/or use of the Workouts.  Company is not responsible for, and you further accept full responsibility for, all Device, carrier, and network fees, rates, charges, and taxes which may apply, if any.

5. Ownership.  The Workouts, and all elements and derivatives thereof (including, without limitation, all information, content, source codes, object codes, data, instructions, documentation, and expressions), as well as all copyrights, trademarks, and other intellectual properties of the foregoing, are owned, licensed, or permissibly used by Company.  In no event shall you have or retain any rights, titles, or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement.  No rights or permissions granted to you under this Agreement are coupled with an interest.  Nothing contained in this Agreement shall be construed as a waiver or limitation of Company’s or its licensors’ respective rights and remedies under applicable law.

6. Rights, Permissions, and Consents.

a.  License of the Workouts.  Subject to the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, personal, freely-revocable, non-transferable, and non-sub-licensable license to access and view the various publicly displayed pages of the Workouts, and to view the information and content found thereon; and if you have a User Account (defined below) in good standing, then said license shall extend to the registered-user-only pages of the Workouts.  Your unauthorized use of the Workouts, or any breach by you of this Agreement, automatically terminates this license.

b. License of User Materials.  All names, photographs, information, communications, and any other content that you submit to or publish on an online social media account (e.g., Facebook, Instagram) that you own and link or otherwise associate with the Workouts, or your User Account, if any and as applicable, is hereinafter defined as the “User Materials.”  You hereby grant Company an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual, and universe-wide license for Company to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive, and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium, or form, whether now known or hereinafter devised, as Company sees fit in its sole discretion.

c. Company Recordings.  By participating in the Workouts you will see and hear and can elect to be heard and seen by the other Users participating in the Workouts. By electing to display your image and or audio during participating in the Workouts, you consent to the video and/or oral recording of You and anyone around you during the Workouts. Further, You hereby consent to the photographing, filming, taping, recording, interviewing, and/or referencing of you by Company (itself and/or by or through its agents, employees, designees, and/or contractors) during your participation in all or any part of the Workouts.  In addition, you hereby acknowledge and agree that Company is, and that you have always known Company to be, the exclusive owner of all past, present, and future rights, titles, and interests in and to all of your contributions to the resulting products of those photographing, filming, taping, recording, interviewing, and/or referencing activities (including, without limitation, all copyrights, results, and proceeds, as well as all allied, ancillary, and subsidiary rights in the foregoing, and all moral rights of the author or droit moral in the foregoing) (collectively, the “Recorded Works”), if any, as “works made for hire;” but if any of the foregoing is not a “work made for hire,” then you forever irrevocably transfer the same to Company.

d. License of Name and Likeness.  You hereby grant Company the non-exclusive, irrevocable, transferable, sub-licensable, royalty-free, fully-paid, perpetual, and universe-wide right to use all or any part of your names, likenesses, images, voices, statements, and performances, whether in original or modified form, for any purposes (e.g., archival, commercial, or non-commercial), in any languages, and in any and all manners, mediums, and forms.

e. No Further Compensation.  You are not entitled to any payments, credits, or other benefits related to the rights, permissions, consents, or activities which are licensed, transferred, conveyed, or undertaken by you under or in relation to this section 6. 

f. Reservation of Rights.  Nothing in this Agreement shall restrict or limit Company’s rights, titles, or interests in or to the Workouts, the User Materials, the Recorded Works, or any elements or derivatives of the foregoing.

g. Warnings; Disclaimers.  Please note that the User Materials might become the subject of public disclosure.  Thus, Company is not responsible for, and expressly disclaims any liability arising from or in connection with, its use of any User Materials in accordance with the terms and conditions of this Agreement.

7. User Account.

a. Registration. As explained further above, to secure the right to access and use the registered-user-only pages of the Workouts, and the Services, you must register with and create a personal user account with Company through the Workouts (“User Account”), as well as further acknowledge your acceptance of and agreement to this Agreement and those additional terms, conditions, and policies referenced herein, as Company may require from time-to-time.  As part of the registration process, you may be required to satisfy certain conditions precedent imposed by Company (including, for example, providing additional information to Company, and entering into additional agreements with Company).  Unless otherwise permitted by Company in writing, you may only have only one (1) non-transferable User Account. 

b. Suspension or Termination of User Account. Company may suspend or terminate your access and use of all or any part of your User Account at any time, and without notice or recourse, as Company deems advisable in its sole discretion.  Company shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service, or loss of content).

c. User Account Activity and Information. You are responsible for all activity that occurs under your User Account and prohibited from authorizing or allowing any third party to access or use your User Account.  Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password).  You should also maintain accurate, complete, and up-to-date information in your User Account (including, without limitation, maintaining a valid and current payment method and e-mail address) because your failure to do so may result in your inability to access, use, and/or receive all or any part of the Workouts, and/or the Services, and/or Company’s termination of this Agreement.  For security purposes, you shall immediately notify Company if you suspect a third party has gained access to or is using your User Account without authorization.  For the avoidance of doubt, Company has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors, and vendors to access and use, the information in your User Account in order to facilitate the exercise and performance of Company’s rights and obligations under this Agreement, the operation of the Workouts, and/or any other the rights, obligations, and services related to the subject matter of this Agreement (including, without limitation, payments, and communications).

d. Indemnification.  If you fail to comply with any terms or conditions of section 7(c) above (whether intentionally or unintentionally), then you accept full responsibility for the consequences thereof (including, without limitation, any unauthorized charges and payments, any unauthorized changes to your User Account information and settings, and any unauthorized access or use of your User Account), and agree to indemnify, release, and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorney fees) incurred by such indemnities, or asserted against such indemnities by third parties, arising out of or in connection with your failure to comply with such terms or conditions.

8. Electronic Communications.

a. Express Consent.  By submitting any information through the Workouts contact forms and pages, by subscribing to Company’s regular or promotional e-mail lists or newsletters, or by registering with the Workouts, you agree that Company may send you e-mails and other electronic messages directly and/or through the Workouts (such as, for example, regular or promotional e-mails, and push notifications, provided that you have approved the regular or mobile version of the Workouts to send push notifications).  Further, you hereby expressly consent to Company sending or otherwise communicating with you via any electronic means that Company deems appropriate in its sole discretion (including, without limitation, telephone, e-mail, electronic message through the Workouts, social media, or other electronic media formats), whether by personal communication (i.e., human-to-human), by e-mail, by automatic telephone dialing system, by an artificial or prerecorded voice, or by text message (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS); and that, by giving such consent, you agree that no such communication shall violate the Telephone Consumer Protection Act, the CAN-SPAM Act, or any other applicable laws, rules, or regulations.  Voice, message, and data fees, rates, charges, and taxes may apply to you, and you are responsible for payment of the same.  You are not required to grant the foregoing consent as a condition for purchase of Company’s products or services.

b. E-mail Opt-Out. You may opt-out of receiving any e-mails as described in section 8(a) above any time by following the instructions in the communication you’ve received and would like to opt-out of. You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Workouts, and/or the Services.

c. Text Message Opt-Out.  You may opt-out of receiving any text messages (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) as described in section 8(a) above at any time by following the instructions in the text message received.  You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Workouts, and/or the Services.

9. Refusal. Company has the right, but not the obligation, to refuse the Workouts, and the Services in the event you are found to be disruptive, disorderly, loud, harassing, abusive, or a safety risk to any of Company’s agents, employees, representatives, or customers, or if you are found to be negligently or recklessly using and/or abusing any equipment, property, or Services of Company.  Further, Company may contact your payment method issuer, law enforcement, or others and share information relating to your payments if Company believes doing so will prevent a violation of the law or financial loss.

10. Suspension or Termination of Workouts.  Company may suspend or terminate the function or existence of all or any part of the Workouts at any time, and without notice or recourse, as Company deems advisable in its sole discretion.  Company shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service, or loss of content).

11. Take Down.  Company reserves the right, but not the obligation, to take down or otherwise exclude from the Workouts, without notice or recourse any communications, names, photographs, information, and/or content made or submitted by you or others on or through any platform upon which the Workouts are hosted, which Company believes at any time and in its sole discretion to be infringing or otherwise in violation of the proprietary, privacy, or publicity rights of any person or entity; plagiarizing; defamatory, disparaging, embarrassing towards any person or entity; disclosing of confidential, private, or personal information about or belonging to any person or entity; profane; indecent; obscene; racist, sexist, or otherwise derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation, or otherwise; threatening; abusive; illegal; false; misleading; deceptive; inciting violence; hate speech; and/or a political attack on a group or individual.

12.  Payments.

a. Online Payment Processing. You understand and acknowledge that for any Services you register for, schedule, or purchase through the Workouts Company will charge you a fee for the provision of those Services (“Transaction Fee(s)”).  The amount of each Transaction Fee will be set by Company in its sole discretion and provided to you prior to the time of your registration, scheduling, or purchase of the particular Service.  When you intend to purchase any Services, you must immediately pay the applicable Transaction Fee using the credit card or debit card identified in your User Account; the payment transaction will be facilitated through an online payment processing application that is provided by a third-party vendor(s), and accessible through the Workouts and/or an App; and you will receive a receipt by e-mail or through your User Account. 

b. No Relationship.  Company’s relationship with its third-party payment processing vendor(s), if any, is merely contractual in nature, as said vendor(s) is nothing more than a third-party vendor to Company and is in no way subject Company’s direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers, contractors, or the like.

c. Payment Authorization.  If you provide Company with your payment information, then you authorize Company to do the following as Company deems necessary, although Company has no obligation to do so: (a) share your payment information with its third-party payment processing vendor(s); and (b) obtain your updated payment information from your payment issuer, Company’s third-party payment processing vendor(s), and/or applicable third-party providers.

d. Payment Obligations.  You agree that you are responsible for all amounts that accrue under your account(s) with Company, Company’s third-party payment processing vendor(s), and/or any applicable third-party providers on or through the Workouts.  You also agree to be responsible for all payments, fines, penalties, and other liabilities incurred by any such person or entity that arises out of or relates to payments that you authorize or accept on or through the Workouts, including, without limitation, all fees, penalties, taxes, and duties; and to be responsible for all expenses (including costs and reasonable outside attorney fees) and interest incurred by any such person or entity to collect any overdue amounts.

e. Waiver of Claims; Unauthorized Payments. To the fullest extent permitted by law, you agree to waive all claims against Company related to any unauthorized payments made on or through your account(s) with Company, Company’s third-party payment processing vendor(s), any applicable third-party providers, and/or any other person or entity, regardless of whether they are authorized or unauthorized.  However, you may submit a claim of the unauthorized payment to Company, and Company will undertake a reasonable investigation as it sees fit under the circumstances of and, if Company deems appropriate, assist in correcting the alleged unauthorized payment, provided that such claim (“Unauthorized Payment Claim”) is received by Company within fifteen (15) days of the subject charge or payment.  Each Unauthorized Payment Claim must be submitted to the following:

 

By e-mail:       ifeelbetter@ouchrelief.com, with a subject line of “Claim Concerning Unauthorized Payment.”

For each Unauthorized Payment Claim, please state “Claim Concerning Unauthorized Payment” in the e-mail or letter subject line, and clearly state the following in the body:

i.          the date and approximate time of the subject transaction;

ii.         the services tendered or to be tendered under the subject transaction;

iii.        the total monetary amount of the subject transaction;

iv.        whether the subject transaction was made on or through the Workouts;

vi.        the parties to the subject transaction, including buyer and seller;

vii.       a detailed explanation for why you believe the charge or payment made under the subject transaction is unauthorized;

viii.      the monetary amount of the subject transaction you believe is subject to a refund;

ix.        your name, street address, city, state, zip code, and e-mail address; and

x.         whether you prefer to receive a response to your request by mail or e-mail.

If you send an Unauthorized Payment Claim by mail, then please do so by U.S. Certified Mail, Return Receipt Requested to allow for confirmation of mailing, delivery, and tracking.  Company will not accept an Unauthorized Payment Claim via telephone or facsimile.  Company is not responsible for any Unauthorized Payment Claim that is incomplete, incorrectly labeled, incorrectly sent, or untimely.

f. Accurate Payment Information.  You represent and warrant to Company that any payment information you provide on or through the Workouts is current, complete, and accurate; and that you will promptly notify Company if your payment information has changed (such as a change in address or expiration date), if your payment method has been cancelled, or if you become aware of a breach of security.

g. No Refunds. All sales and payments made regarding the Workouts, and/or the Services, and all payments made on or for the Workouts, are final, irrevocable, and not subject to or eligible for refund or return, unless otherwise expressly stated in this Agreement.

13. Prohibited Activities.  You shall not engage in any of the following activities at any time with respect to the Workouts:  (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy, or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Company with respect to the Workouts); (c) the reproduction of the Workouts or content found therein, in whole or in part, or the creation of any derivatives works of the foregoing (unless expressly authorized by Company herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening, or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer, or randomly generated content; (g) supplying or publishing any information or statements to or through the Workouts that is false, misleading, deceptive, or incorrect; (h) any act that constitutes a commercial activity; (i) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers, or applications; (j) the systematic retrieval or copying of any information or content found on or through the Workouts, or any servers which may host the Workouts to directly or indirectly create or compile, in whole or in part, a collection, compilation, database, or directory; (k) the use of any software, program, process, device, application, or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) to monitor, copy, disrupt, damage, injure, interfere with, or impermissibly access, in whole or in part, the Workouts, any servers which may host the Workouts, or any data or content found thereon or therein; (l) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying, or the like in relation to the Workouts, or any servers which may host the Workouts; (m) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Workouts, or any servers which may host the Workouts; (n) any act that gains or attempt to gain unauthorized access to computer systems, networks, information, or materials through the Workouts, or any servers which may host the Workouts; or (o) any other act that Company becomes aware of and believes in good faith is improper, illegal, or harmful to the Workouts, any servers which may host the Workouts, any person or entity, or the property of any person or entity.

14. Links to Other Sites, Networks, Platforms, Servers, and Apps.

a. Linked Technologies.  The Workouts may contain links to third-party websites, networks, platforms, servers, and/or applications (“Linked Technologies”).  The Linked Technologies are not under the control of Company.  The Workouts contain these links only as a convenience to you.

b. Disclaimer About Linked Technologies.  Company is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information, and illegal content).  Company does not make, nor has Company made, any representations or warranties (express, implied, or otherwise) concerning the terms of use or service, privacy policies, agreements, information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Technologies; nor shall the fact that the Workouts links to any Linked Technologies constitute an affiliation with, association with, or endorsement of such Linked Technologies any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from such Linked Technologies.  If you decide to access any Linked Technologies, then you do so at your own risk.

c. Use of Zoom Video Communications, Inc. By accessing, participating in and using the Workouts hosted on Zoom you are agreeing to accept the terms and conditions of Zoom. The Zoom terms and conditions can be found at https://www.zoom.us/terms. If you do not agree to the Zoom terms and conditions you may not access, participate in or use the Workouts or Services provided under this Agreement.  

15. User Representations, Warranties, and Covenants.  You represent, warrant, and covenant to Company that:  (a) you are a natural person and of eighteen (18) years of age or older; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that by accepting this Agreement you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state, or local laws, which may concern the Workouts, the Services, any servers which may host the Workouts, or any information, communications, or content found on or through them; (g) you are the exclusive owner of all rights, titles, and interests in and to the User Materials and the Recorded Works (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity, and rights of privacy), and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials and the Recorded Works to allow for your performance and grant of rights hereunder; (h) the User Materials and the Recorded Works are wholly original to you; (i) the User Materials and the Recorded Works do not and will not infringe upon or otherwise violate the proprietary, publicity, or privacy rights of any person or entity; (j) the User Materials and the Recorded Works do not and will not defame, disparage, embarrass, or disclose confidential, private, or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials and the Recorded Works is or will be, or contains or will contain, links to material that is, profane, indecent, obscene, threatening, abusive, illegal, false, misleading, or any form of spam, malware, virus, bug, bot, spyware, or other malicious or tracking technology; (l) Company is not required to seek the permission of or compensate any third party(s) to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement, or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to Company in connection with your access or use of the Workouts, and the Services is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties.

16. Disclaimers and Limitations.

a. General Disclaimer.  Your visit, access, or use of the Workouts, and/or the Services in any way is done at your own risk.  The Workouts, the Services, the success or performance of the Workouts, or the Services, and all information, communications, content, features, products, and services offered, sold, and/or licensed on or through the Workouts, and/or the Services are provided to you on an “as is,” “where is,” “as available,” and “with all faults” basis.  Company does not make, nor has Company made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written, or express or implied) to you with respect to the Workouts, the Services, the success, performance, functionality, reliability, or safety of the Workouts or the Services, or any such information, communications, content, features, products, or services.  Company expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, quality, accuracy, reliability, and performance), and warranties arising from conduct, course of dealing, custom, and usage in trade with respect to the Workouts, the Services, the success, performance, functionality, reliability, or safety of the Workouts, or the Services, and any such information, communications, content, features, products, and services.  Company does not make, nor has Company made, any affirmation of fact or promise relating to the Workouts, the Services, the success, performance, functionality, reliability, or safety of the Workouts, or the Services, or any such information, communications, content, features, products or services that has become any basis of this bargain.  There are no warranties (express, implied or otherwise) concerning the Workouts, the Services, the success, performance, functionality, reliability, or safety of the Workouts or the Services, or any such information, communications, content, features, products, or services that extend beyond the face of this Agreement.

b. Disclaimer About Third Parties.  Your dealings and interactions with any other users of the Workouts, and/or the Services, and/or with any of Company’s vendors or contractors who may operate or provide certain services in relation to the Workouts, and/or the Services, in any way is done at your own risk; and Company expressly disclaims any and all liability arising from or in connection with, and shall not be responsible for, any acts, errors, or omissions of any such persons and entities.  Company does not control, has not investigated, and does not make any assurances to you or any other person or entity about your skills, abilities, authorizations, reliability, or safety; your experiences with any other users of the Workouts, and/or the Services; or your experiences with any of Company’s vendors or contractors who may operate or provide certain services in relation to the Workouts, and/or the Services.  Accordingly, you acknowledge and agree that Company has no responsibility or liability to you related to any information, communications, content made by, or any interactions you may have with, any such persons or entities, except as expressly stated in this Agreement; that any such persons or entities may not be skilled, abled, authorized, reliable, or safe individuals; and that, despite such knowledge, you are willing to voluntarily visit, access, and use the Workouts, and the Services.  There are no warranties (express, implied or otherwise) concerning any such persons or entities which extend beyond the face of this Agreement.

c. Disclaimer About System Delays.  You understand and acknowledge that the Workouts, and/or the Services may be subject to limitations, delays, and other problems inherent in the use of third-party communication networks and facilities that are outside of Company’s control.  Accordingly, Company shall not be responsible for any delays, failures, losses, injuries, liabilities, or damages associated with the Workouts, and/or the Services which result from any system delays, downtimes, interruptions, or other failures of or problems with the Workouts, and/or the Services which are outside of Company’s control (including, without limitation, scheduled maintenance, or network failure).

d. Disclaimer About Certain Information, Communications, and Content.  Any opinions, advice, reviews, statements, offers, or other information, communications, or content found on, through, or in relation to the Workouts, or the Services, in any marketing or promotional materials concerning Company, the Workouts, the Services, or any third-party providers (including, without limitation, advertisements, and social media pages), or made or provided during the course of the Services are those of their respective authors, and not necessarily those of Company, and, thus, should not necessarily be relied upon.  Such authors are solely responsible for the accuracy of such information, communications, or content.  Company does not guarantee, adopt, or endorse the accuracy, completeness, reliability, or usefulness of any such information, communications, or content, even if Company is the author.  Company is not responsible for the accuracy, completeness, reliability, or usefulness of any such information, communications, or content.  Under no circumstances shall Company be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information, communications, or content.

e. Disclaimer About Health- and Fitness-Related Statements.  For the avoidance of doubt, no opinions, advice, reviews, statements, offers, or other information, communications, or content found on, through, or in relation to the Workouts, or the Services, in any marketing or promotional materials concerning Company, the Workouts, the Services, or any third-party providers (including, without limitation, advertisements, and social media pages), or made or provided during the course of the Services, should be construed or relied upon in any manner as health, fitness, exercise, medical, nutritional, or dietary advice, diagnoses, prescriptions, opinions, or facts, and are not a substitute for the advice or services of a licensed, competent, and reputable medical professional who is operating in his/her field of expertise and familiar with you and your medical history and condition.  If you have any questions about any of the health, fitness, exercise, medical, nutritional, or dietary issues addressed or referenced in or through any of the foregoing channels, then you should consult with independent, licensed, competent, and reputable medical professional who is operating in his/her field of expertise and familiar with you and your medical history and condition.

f. Limitation of Liability.  In no event shall Company or any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive, or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs, or repair costs) caused by or arising from or in connection with:  (a) your access, inability to access, use, or inability to use the Workouts, or the Services; (b) the unauthorized access to or alteration of your information; (c) any statements, content, or conduct of any third party on, through, or in relation to the Workouts, or the Services or made or provided during the course of the Services; (d) any hacking, denial of service attacks, data security breaches, or other third-party conduct that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), network(s), or User Account; (e) any transmission, download, or infection of any software, system, program, file, process, device, application, or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), network(s), or User Account; (f) the fact that you have relied on any information or content found on, through, or in relation to the Workouts, or the Services or made or provided during the course of the Services; or (g) any acts, errors, or omissions of any or all third-party providers, if any.  If you are dissatisfied with the Workouts, or the Services, then your sole and exclusive remedy against Company and/or Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees is to discontinue your access and use of the Workouts, and the Services.

g. No Injunctive Relief.  If Company breaches or otherwise violates this Agreement, then you shall not be entitled to seek or obtain, and you do hereby waive, any type of injunctive relief against the Workouts, and/or the Services as a result of such breach or other violation.  For the avoidance of doubt, the foregoing limitation on injunctive relief does not limit your ability to seek or recover any monetary remedies authorized by law in the event of any such breach or other violation (except for those which are otherwise expressly precluded by this Agreement).

h. Limitation of Remedies.  If Company breaches or otherwise violates this Agreement, then in no event shall you be entitled to recover any special, incidental, consequential, speculative, or punitive damages arising out of or in relation to such breach or other violation, even if Company has been notified of the possibility of such damages; and in no event shall Company’s liability under this Agreement exceed the amount of Transaction Fees actually paid and/or payable by you under this Agreement within the six (6) month period immediately preceding the date of such breach or other violation of this Agreement.

i. Disclaimer of Promotional Items. There may or may not be promotions and/or challenges going on during the period of your access to Ouch! Workouts. If for any reason a promotion is not capable of running as planned, including without limitation, lack of significant participation, infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes which corrupt or affect the administration, security, fairness, integrity or proper conduct of such promotion, Ouch! reserves the right, at its sole discretion, to cancel, modify or terminate such promotion. Ouch! reserves the right, in its sole and absolute discretion, to disqualify any individual deemed to be (a) tampering or attempting to tamper with the entry process or the operation of a promotion; (b) violating these Terms; or (c) acting in an unsportsmanlike or disruptive manner, or with intent to annoy, abuse, threaten or harass any other person. 

If a Force Majeure Event occurs, Ouch! will be excused from offering promotional items under this contest. For purposes of this agreement, “Force Majeure Event” means, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents Ouch! from holding these promotions. Such events may include but are not limited to: act of God, war, hostilities, invasion, act of foreign enemies, mobilization, rebellion, revolution, military or usurped power, civil war, pandemics, contamination, riot, strikes, lock outs, acts or threats of terrorism.

If you qualify for a promotional item, you must follow steps provided to redeem and receive this item. Third-party issues that may interrupt your receipt of these promotional items such as but not limited to supply-chain issues, shipping/freight issues, etc. As such, promotional items could take weeks to receive once you have completed all steps to receive them.

j. Consumer Protections.  The disclaimers and limitations set forth in this section 16 are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.

17. General Release of Claims.  You hereby release and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, and licensees from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, property damage, negligence, and/or any other legal theory arising from or in connection with the Workouts, the Services, and/or the rights and privileges granted or conveyed by you under this Agreement (including, without limitation, those rights and privileges relating to the User Materials, the Recorded Works, and/or any elements, derivatives, or marketing of the foregoing).  Further, you waive your right to, and in no event shall you seek to, enjoin Company, any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees, or any exercise of the rights or privileges granted or conveyed by you under this Agreement (including, without limitation, the User Materials, and the Recorded Works).

18. Indemnification.  You hereby agree to indemnify, release, and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorneys’ fees) incurred by such indemnities, or asserted against such indemnities by third parties, arising out of or in connection with (a) your acts, errors, or omissions, (b) your use of the Workouts, or the Services in any manner contrary to the terms and conditions of this Agreement, (c) your violation of the rights of or other injury to any third party, and/or (d) your breach of all or any part of this Agreement.

 

19. Waivers, Consents, and Certifications.  You understand, acknowledge, and agree that, by accepting this Agreement, you hereby voluntarily give your full informed consent to use and participate in the Workouts and Services, and accept any and all risks associated therewith (whether known or unknown now or in the future).  You also understand, acknowledge, and agree that you have been warned about all of the risks and requirements associated with the Services (whether known or unknown now or in the future), including, without limitation, the fact that that your use of or participation in a fitness, exercise, nutritional, dietary, and weight management program may positively or negatively affect or change your health and wellness (including, for example only, degrees of risk associated with your metabolism, your muscular, skeletal, cardio, and/or respiratory systems, degrees of risk associated with your mental or emotional health, abnormal blood pressure, excessive sweating, dizziness, rapid heartbeats, fainting, exhaustion, overheating, heart attack, stroke, and even death).  You also understand, acknowledge, and agree that the Services may involve physically demanding and/or strenuous activities, and that you should periodically stop exercising and otherwise participating in any of the Services (or when your body tells to stop) in order to take a break, drink water or other fluids, slow down your level of activity, et cetera.  Finally, you represent, warrant, and covenant to Company that:  (a) you have conducted a thorough investigation of the Services; (b) you are in proper health and physical condition to use and participate in the Services (e.g., you do not have a medical support or implant device, such as, for example only, you do not have a medical condition that may exacerbated by your use of or participation in the Services, such as, for example only, a heart condition); (c) you have consulted with an independent, licensed, competent, and reputable medical professional who is operating in his/her field of expertise and familiar with you and your medical history and condition about your ability to use, and the risks associated with your use of and participation in the Services (with such use being by you alone, as well as with the assistance of Company and/or Company’s agent, employee, vendor, or contractor); and (d) you will not use or participate in the Services in any manner that may injure or otherwise affect the safety of yourself or others.  Accordingly, you further acknowledge and agree to waive any and all claims against Company which relate to any physical or emotional injury which may result from your use or participation in the Services.  If you do not, cannot, or will not provide all of the foregoing informed consents, provide all of the foregoing waivers, or adhere to all of the foregoing representations, warranties, and covenants, then you are prohibited from using and participating in the Services in any manner.

20. Term; Termination; Survival.  This Agreement shall be and remain in effect in perpetuity, unless earlier terminated by Company.  Company may terminate this Agreement and/or your access and use of the Workouts, and/or the Services at any time, for any or no reason, and without notice to you (including, without limitation, if Company believes that you have violated or acted inconsistently with this Agreement).  If this Agreement is terminated for any reason, then all rights granted to you under this Agreement shall automatically revert back to Company, and the following shall survive in perpetuity:  (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to and/or accrued in favor of Company and/or any of Company’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees as of the date of this Agreement’s termination; (c) all payments which accrued as of the date of termination; (d) all disclaimers, limitations of liability, and limitations of remedies; and (e) all representations, warranties, covenants, certifications, releases, indemnifications, and promises made by you under this Agreement.

21. Governing Law.  This Agreement, the additional terms, conditions, and policies referenced herein (including, without limitation, the www.ouchrelief.com and Privacy Policy), and all disputes, controversies, and claims arising from or in connection with any of the foregoing, your access or use of the Workouts, and/or the Services, and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity), shall be governed, interpreted, construed, and enforced in accordance with the laws of the State of California in the United States of America and applicable federal law of the United States of America, regardless of its place of execution, its place of performance, and any conflicts of law analysis.

22. Forum.  Each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts in San Diego County, California, United States of America, and the federal courts in California, United States of America, for the resolution of all disputes, controversies, and claims arising from or in connection with this Agreement, the Workouts, the Services, and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity), and agree that neither is an inconvenient venue or forum.

23. Notice.  Unless otherwise expressly stated in this Agreement, Company may give or deliver all other notices to you by means of a general notice posted on this or a similar page of the Workouts, as applicable, and shall be deemed effective as of their stated effective dates.

24. Relationship.  In no event shall this Agreement, the performance of a Party’s rights or obligations under this Agreement, the Workouts, the Services, or a Party’s visit to, access of, or use of the Workouts, and/or the Services create any type of fiduciary, franchise, agency, employment, independent contractor, partnership, or joint venture relationship between you or Company.

25. Miscellaneous.

a. Excused Performance.  Company is hereby excused for any failure to perform under this Agreement to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.

b. Assignment and Delegation.  You shall not assign, delegate, or otherwise transfer any of your rights or obligations under this Agreement without Company’s prior written consent in each instance.

c. Construction and Interpretation.  This Agreement shall be construed to have been drafted by all of the Parties, so that any rule of construction or interpretation that construes or interprets ambiguities against the drafter shall have no force or effect.

d. Headings.  Section headings are inserted in this Agreement for reference and convenience only and shall not interpret, define, limit, or describe the scope, intent, terms or conditions of this Agreement.

e. Severability.  If any term or condition of this Agreement is deemed invalid or unenforceable by a court of law with binding authority, then the remaining terms and conditions shall not be affected, and said court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the intent of this Agreement.

f. Entire Agreement.  This Agreement, together with those additional terms, conditions, and policies referenced herein and/or made available herein by hyperlink (including, without limitation, www.ouchrelief.com and Privacy Policy), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof; supersedes any prior agreements and understandings, if any, between the Parties with respect to such subject matter; and shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.

26. Contact Us.  Please direct any questions you may have about the Workouts, or this Agreement to the following during posted standard operating hours:

email : ifeelbetter@ouchrelief.com

The foregoing contact information may change from time-to-time by supplementation, amendment, or modification of this Agreement.

27. Last Modified.  This Agreement was last modified on September 1st, 2020.