TERMS OF SERVICE
Last Updated: June 16, 2019
The website operated at jaybirdjaybird.com and such other locations as made available from time to time (collectively, the “Website”) and the services offered therefrom (collectively, the “Service”) are operated by Jaybird Studios Ltd. and its corporate affiliates (collectively, “us”, “we”, “our” or “Jaybird”).
By accessing or using the Service, you (“you” and, together with all persons accessing or using the Service, collectively, the “Users”) signify that you have read, understand and agree to be bound by this Agreement (this “Agreement”) in all respects with respect to the Website, our provision of the Service, and your use of them.
PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE, BUT ARE NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS, AND INDEMNITIES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST NOT USE THE SERVICE.
1. Changes To This Agreement. We reserve the right, at our sole discretion, to change, modify, add or delete portions of this Agreement from time to time without further notice. If we do this, we will date and post the most current version of this Agreement on the Website. Any changes will be effective upon posting the revised version of this Agreement (or such later effective date as may be indicated at the top of the revised Agreement). Notice of other changes may be provided via the Website. It is your responsibility to regularly check this page and the date of this Agreement whenever you visit the Website to see if this Agreement has been updated and to review such changes. Your continued access or use of any portion of the Service constitutes your acceptance of such changes, modifications, additions or deletions. If you do not agree to any of the changes, we are not obligated to keep providing the Service, and you must stop using the Service.
2. Your Account And Security. In consideration of your use of the Service, you hereby agree to: (a) provide true, accurate, current and complete information about yourself as requested by any registration forms on the Service (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. By providing Registration Data to us through the Service, you will provide personal account information (you “User Account”). You hereby agree to be fully responsible for: (w) all use of your User Account; (x) any action that takes place using your User Account by any person or automated process; (y) maintaining the confidentiality and security of your User Account and passwords; and (z) immediately notifying us upon any unauthorized use of your password or User Account. Jaybird will not be liable for any loss or damage arising from any unauthorized use of your accounts.
3. Consent To Electronic Communications And Solicitation. By using the Service or registering with Jaybird, you understand that we may send you communications or data regarding the Services, including but not limited to: (a) notices about your use of the Service, including any notices concerning violations of use; (b) updates; and (c) promotional information, newsletters and materials regarding Jaybird’s products and services, via electronic mail. We give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.
4. Content. In this Agreement, “Content” means all materials and content of any type, including, but not limited to, photos, graphics, images, designs, profiles, messages, information, notes, text, information (including Registration Data), music, sound, video, articles, and software.
5. User Content And Your License To Us. The Service permits you (or any person using your User Account) to submit, transmit, copy, make available and distribute Content (collectively, your “User Content”), and we do not claim ownership over any User Content. We may provide functions that allow you to control who may access your User Content. If we do and you enable the features that allow you to share your User Content with others, anyone you have shared User Content with (including the general public, in certain circumstances) may have access to your User Content. By providing any User Content, you:
acknowledge that Jaybird reserves the right to refuse to accept, display, or transmit any User Content in its sole discretion,
grant Jaybird the worldwide, royalty-free, non-exclusive right and license to use, distribute, reproduce, modify, adapt, perform and display such User Content as permitted by the functionality of the Service (the “User License”) on the following terms:
the User License is limited to the purpose of offering the Service,
the User License includes Jaybird’s right to sublicense to third party service providers for the sole purpose of offering the Service, at all times in accordance with this Agreement, and
the User License will end, and Jaybird will cease to use User Content, a commercially reasonable period after such User Content is removed from the Service,
represent and warrant to us that (1) you have all right, title and interest to grant the User License, (2) the User Content does not infringe on any other person’s copyright, trade-mark, proprietary interests, trade secrets, privacy or other intellectual property rights, and (3) no User Content contains any libellous, defamatory or otherwise unlawful material,
hereby agree to indemnify us and hold us harmless from any claims, losses, damages or expenses incurred by us in respect of any third party claims that your User Content infringes on any other person’s rights (including all of the rights set out in (b) above), and
hereby agree that you are solely responsible for your interactions with other Users and acknowledge that we reserve the right (but have no obligation) to monitor disputes between you and other Users and to take any action with respect to any User Account pertaining to such Users, in our sole discretion.
6. Service Content. All Content available or stored on the Service other than your User Content, including the Service itself, all other Users' Content, any Content made available by Jaybird or any third party, and the selection and arrangement of all such Content and User Content (collectively, the “Service Content”), is the proprietary property of us, the Users or our licensors with all rights reserved, and Jaybird (or, as applicable, our Users or licensors) retain and shall retain all right, interest and title in and to all Service Content.
7. Our License To You. Provided that you are eligible for use of the Service, and that you agree to this Agreement, we hereby grant you a limited, personal, non-transferable, revocable (at any time with or without notice or cause) and non-exclusive right and license to access and use the Service and to download or print a copy of any portion of the Service Content solely for your personal, non-commercial use for the sole purpose of making class reservations, purchases, or other personal use, subject to this Agreement and provided that you keep all copyright or other proprietary notices intact.
8. User Conduct (Things You Must Not Do). You acknowledge and agree that the Service is available for your personal, non-commercial use only. Without restricting anything else in this Agreement, you agree not to:
alter, modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, or sell in any form or by any means, in whole or in part, Service Content,
except to the extent required to be permitted by the law of your jurisdiction, reverse engineer, decompile, or disassemble, translate or otherwise attempt to extract the source code from the Service, the Service Content, or any part thereof,
make the Service or Service Content available to anyone, or permit anyone to access same, nor license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit the Service in any way except in furtherance of your permitted use in accordance with this Agreement,
republish any Service Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, without our prior written permission or the permission of the particular Content owner, as the case may be,
use any data mining, robot or similar data gathering or extraction methods with respect to any Service or any Service Content,
register for more than one User Account, register for a User Account on behalf of an individual other than yourself (except if you are the parent or legal guardian to such individual), or register for a User Account on behalf of any group or non-individual entity (except if you are duly authorized to do so by such group or entity),
impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity, in your Registration Data, User Account or otherwise;
upload, post, transmit, share or otherwise make available on the Service any User Content that
contains any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Insurance Numbers, US Social Security numbers, credit card numbers, financial information and other personally identifying or private information, unless that third party has consented to such use of its private information,
in our sole discretion, is harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable,
contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or
would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law,
disable or circumvent any access control or related process or procedure established with respect to the Service, or attempt to gain unauthorized access to the Service or Service Content,
remove any copyright or other proprietary notices on or in the Service, Service Content or any part thereof,
solicit personal information from anyone under 18 or solicit passwords or personally identifying information from any person for commercial or unlawful purposes,
use the Service or any Service Content to “stalk”, intimidate, harm or otherwise harass another User or another person,
intentionally or unintentionally violate any applicable local, state, national or international law, including any regulations thereto, or any court order or lawful order of any governmental authority,
access the Service in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Service or Service Content,
utilize the Service in any way except as expressly permitted by this Agreement, including by developing or using any software tool or other application that interfaces with the Service or the Website except for standard web browsers,
interfere with or disrupt the Service or Service Content (including the servers, networks or technology connected to the Service), or
use or attempt to use another's User Account or the Service without express authorization from us or the applicable User.
10. Other Uses. Any use of the Service or the Service Content other than as specifically authorized in this Agreement, without our prior written permission, is strictly prohibited and will automatically terminate all licenses granted by us herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright, privacy, trade-secrets and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any other license to intellectual property rights, whether by estoppel, implication or otherwise.
11. Trademarks. Notwithstanding anything else in this Agreement, “Jaybird”, the Jaybird logo and design, and all other trade-marks, trade dress, graphics, logos, designs, page headers, button icons, scripts and service names used by the Jaybird Companies on or in connection with the Service (collectively, the “Marks”) are registered trademarks, trademarks or trade dress of the Jaybird Companies or our licensors and all right, title and interest in and to the Marks, whether registered or not, are and shall remain vested in us or in our licensors, as applicable. The Marks may not be used, including as part of trademarks, trade names, trade dress or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
12. Updates To The Service. Jaybird reserves the right at any time and from time to time, in its sole discretion and without notice, to make unscheduled deployments of changes, modifications, maintenance, updates, upgrades, and enhancements to the Service and to add or remove functionalities or features, or suspend or stop the Service altogether. NOTWITHSTANDING ANY PROVISION HEREIN, YOU AGREE THAT WE SHALL NOT BE LIABLE IN ANY WAY TO YOU OR ANY THIRD PARTY FOR SUCH CHANGE, MODIFICATION, MAINTENANCE, ADDITION, REMOVAL, UPDATE, UPGRADE, ENHANCEMENT, SUSPENSION OR TERMINATION.
13. Third Party Sites And Content. The Service contains (or you may be presented with through the Service) links to other websites (“Third Party Sites”), specifically, for example, you will be directed to mindbodyonline.com to register for and purchase classes, as well as Content belonging to or originating from parties other than us or our Users (“Third Party Content”). You acknowledge and agree that we do not investigate, check, or monitor nor are we responsible in any way for such Third Party Sites or Third Party Content accessed through or available on the Service, including, without limitation, the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites or the Third Party Content. The inclusion of or linking to a Third Party Site or Third Party Content does not imply (a) our approval, investigation, sponsorship, recommendation or endorsement thereof; nor (b) any affiliation with Jaybird. If you decide to leave the Service you agree that you do so at your own risk and you acknowledge that our terms and policies do not govern or apply. Please review the applicable terms and policies including privacy and data gathering policies of any Third Party Site to which you may navigate through the Service. We are not responsible for any Third Party Content you access through the Service, and you irrevocably waive any claim against us with respect to such Third Party Sites and Third Party Content.
14. No Responsibility For Others’ Content. We are not responsible or liable in any manner for any User Content or Third Party Content available on the Service, whether made available or caused to be made available by Users or by any of the technology associated with or utilized in the Service. Although we provide this Agreement and other policies and rules for User conduct, we do not control and are not responsible for our Users’ actions and are not responsible for any Content you may encounter on the Service, be it User Content or Third Party Content. Notwithstanding anything else in this Agreement, Jaybird has no responsibility to monitor any User Content or Third Party Content.
16. No Warranty. Jaybird PROVIDES THE SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Jaybird MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. VITAL SOFTWARE DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY THIRD PARTY CONTENT OR THIRD PARTY SITES.
17. Availability. The Service may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User Content. We are not responsible for any problems or technical malfunction, including, without limitation, any problem or malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or persons, traffic congestion on the Internet or at any web site (including the those in the Service) or combination thereof.
18. Indemnification. Without limiting anything in the Release of Liability and Assumption of Risk you have or will enter into prior to participating in your first class, you agree you will defend Jaybird and its directors, officers, agents, contractors, partners, employees and affiliates harmless from and against any cost, loss, damage, demand, liability, or other expense, including reasonable attorney’s fees arising out of or in connection with any User Content, any Third Party Content, your use of the Service, your conduct in connection with the Service or with other Users of the Service, or any violation of: (a) this Agreement, (b) any law or regulation, or (c) any right of any third party.
19. Limitation Of Liability. WITHOUT LIMITING ANYTHING IN THE RELEASE OF LIABILITY AND ASSUMPTION OF RISK AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL Jaybird, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE, DATA OR CONTENT) HOWEVER CAUSED, ARISING FROM YOUR USE OF THE SERVICE, THE SERVICE CONTENT, OR CONTENT ACCESSED THROUGH THE SERVICE, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF Jaybird IS AWARE OR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF Jaybird AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR LICENSORS, RELATING TO THE SERVICE WILL BE LIMITED TO THE AMOUNT PAID, IF ANY BY YOU TO Jaybird FOR THE SERVICE DURING THE YEAR IN WHICH THE UNDERLYING CAUSE AROSE, BUT IN NO CASE WILL JAYBIRD’S LIABILITY EXCEED THE LESSER OF THE COST OF YOUR CLASS OR MEMBERSHIP PACKAGE FOR THE PERIOD IN WHICH THE CLAIM AROSE (FOR EXAMPLE, IF THE CLAIM AROSE WHILE USING OR PURCHASING A 10-CLASS PACKAGE, NO MORE THAN THE COST THAT 10-CLASS PACKAGE WAS PURCHASED FOR), AND $100. YOU ACKNOWLEDGE THAT IF NO SUCH FEES ARE PAID BY YOU TO JAYBIRD FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENITITLED TO DAMAGES OF ANY KIND FROM JAYBIRD, REGARDLESS OF THE CAUSE OF ACTION. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
20. Governing Law; Venue And Jurisdiction. You agree that the laws of the Province of British Columbia, Canada, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. You hereby irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of British Columbia with respect to any dispute hereunder.
21. Notices. We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. You consent to receive communications from us electronically. We will communicate with you by e-mail to the email address attached to your User Account through your Registration Data or by posting notices on (a) the Service at-large, or (b) into your personal message centre available on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
22. Intellectual Property Notices. Jaybird and the Jaybird logo are including without limitation, either trademarks, service marks or registered trademarks of Jaybird Fitness Ltd., and may not be copied, imitated, or used, in whole or in part, without Jaybird's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. Jaybird may have trademarks, trademark applications, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in this Agreement, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
24. Other. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service. This Agreement constitute the entire agreement between you and us regarding the use of the Service, superseding any prior agreements between you and us relating to your use of the Site or the Service, except as related to your participation in a class where the Release of Liability and Assumption of Risk will apply. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, unlawful, void or unenforceable for any reason, that provision shall be deemed severable and the remainder of this Agreement shall continue in full force and effect. Jaybird and you are not legal partners or agents; instead, our relationship is that of independent contractors. This Agreement shall enure to the benefit of, and be binding upon, parties hereto and their respective heirs, executors, administrators, successors, and assigns.
26. Interpretation. Headings are for convenience only and shall not be used to interpret, or as a guide for interpretation of, this Agreement. The word “or” is not exclusive and the word “including” is not limiting (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto). A word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa and “person” will mean an individual, partnership, corporation (including a business trust), joint stock company, trust unincorporated association, joint venture, or other entity or a government or any agency, department or instrumentality thereof and vice versa.
27. English Language. The parties agree that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soinet rédigés en anglais.
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