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Terms of Use
TERMS OF USE
Effective Date: January 1, 2021
Please read this Terms of Use Agreement (the “Terms of Use”)
carefully. These Terms of Use govern your use of those
websites owned or controlled by And/Life, Inc. (the
“Company” or “we”), including the websites located at:{" "}
{" "}
and{" "}
{" "}
(each, a “Website” and collectively, the “Websites”)), the
software application entitled “And/Life” (the “App”) and
hosted services enabled or available via the Websites and
App related to women’s health, fitness, fashion and similar
issues (the “Services”) that are offered by the Company.
BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE
REGISTRATION PROCESS, BROWSING THE WEBSITE, USING THE
SERVICES, AND/OR DOWNLOADING THE APP, YOU REPRESENT THAT (1)
YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE
TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING
CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO
ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE
COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY
TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL
OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN
YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE
BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE
WEBSITE, APP OR SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL
TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR
ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM
AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU
[OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR
SUBSCRIPTION] IN ACCORDANCE WITH SECTION 7.4 BELOW. PLEASE
BE AWARE THAT SECTION 15.5 OF THIS AGREEMENT, BELOW,
CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE
HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT
LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO
THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT
CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED
EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO
BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE
ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO
PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL
BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR
REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING
YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A
JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE
SITE, APP, SERVICES OR CONTENT AVAILABLE THEREIN WILL BE
GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE
OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT,
WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE
OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in certain Services may be
subject to additional terms (“Supplemental Terms”) and such
Supplemental Terms will either be listed in these Terms or
will be presented to you for your acceptance when you sign
up to use the supplement Service. If these Terms of Use and
inconsistent with the Supplemental Terms, the Supplemental
Terms will control with respect to such Service. These Terms
of Use and any applicable Supplemental Terms are referred to
herein as the “Terms”.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE
COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are
made, the Company will make a new copy of the Terms of Use
available at the Website and within the App. We will also
update the “Last Updated” date at the top of the Terms of
Use. If we make any material changes, and you have
registered with us to create an Account (as defined in
Section 2.1 below), we may also send an e-mail to you at the
last e-mail address you provided to us pursuant to the
Terms. The Company may require you to provide consent to the
updated Terms in a specified manner before further use of
the Service is permitted. If you do not agree to any
change(s) after receiving a notice of such change(s), you
shall stop using the Services. Otherwise, your continued use
of the Services constitutes your acceptance of such
change(s).{" "}
PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT
TERMS.
1. Use of the Services.{" "}
The Website, App, and the Services provided by the Company
via the Website and App (collectively, the “Company
Properties”) are protected by copyright laws throughout the
world. Unless otherwise specified by the Company in a
separate license, your right to use any Company Properties
is subject to the Terms.
1.1 Application License.{" "}
Subject to your compliance with the Terms, the Company
grants you a limited non-exclusive, non-transferable,
non-sublicensable, revocable license to download, install
and use the App on those mobile devices or computers that
you own or control and to run such copy of the App solely
for your own personal or internal business purposes.
Furthermore, with respect to any App accessed through or
downloaded from the Apple App Store, Google Chrome Web
Store, Google Play marketplace or any similar store or
marketing place (each, an “App Store” and references to an
App Store include the corporate entity and its subsidiaries
making such App Store available to you), you agree to comply
with all applicable third party terms of the relevant App
Store (e.g. Apple App Store’s “Usage Rules”) (the “Usage
Rules”).
1.2 Updates. You
understand that the Company Properties are evolving. As a
result, the Company may require you to accept updates to the
Company Properties that you have installed on your computer
or mobile device. You acknowledge and agree that the Company
may update the Company Properties with or without notifying
you. You may need to update third-party software (e.g. your
device’s operating system) from time to time in order to use
the Company Properties.
1.3 Certain Restrictions.{" "}
The rights granted to you in the Terms are subject to the
following restrictions: (a) you shall not license, sell,
rent, lease, transfer, assign, reproduce, distribute, host
or otherwise commercially exploit the Company Properties or
any portion of the Company Properties, (b) you shall not
frame or utilize framing techniques to enclose any
trademark, logo, or other Company Properties (including
images, text, page layout or form) of the Company; (c) you
shall not use any metatags or other “hidden text” using
Company’s name or trademarks; (d) you shall not modify,
translate, adapt, merge, make derivative works of,
disassemble, decompile, reverse compile or reverse engineer
any part of the Company Properties except to the extent the
foregoing restrictions are expressly prohibited by
applicable law; (e) access the Company Properties in order
to build a similar or competitive website, application or
service; (f) except as expressly stated herein, no part of
the Company Properties may be copied, reproduced,
distributed, republished, downloaded, displayed, posted or
transmitted in any form or by any means; and (g) you shall
not remove or destroy any copyright notices or other
proprietary markings contained on or in the Company
Properties. For the purposes of clarity, the foregoing
restrictions do not apply to any Third Party Content (as
defined in Section 4) made available via the Company
Properties. Any future release, update or other addition to
the Company Properties shall be subject to the Terms. The
Company, its suppliers and service providers reserve all
rights not granted in the Terms. Any unauthorized use of the
Company Properties terminates the licenses granted by the
Company pursuant to the Terms.
1.4 Unauthorized Use. You agree that you will not, under any
circumstances: (a) interfere with or damage Company
Properties, including, without limitation, through the use
of viruses, cancel bots, Trojan horses, harmful code, flood
pings, denial-of-service attacks, packet or IP spoofing,
forged routing or electronic mail address information, or
similar methods or technology; (b) modify or cause to be
modified any files that are a part of the Company
Properties; (c) disrupt, overburden, or aid or assist in the
disruption or overburdening of: (i) any computer or server
used to offer or support the Company Properties; or (ii) the
enjoyment of the Company Properties by any other person; (d)
attempt to gain unauthorized access to the Company
Properties, accounts registered to others, or to the
computers, servers or networks connected to the Company
Properties by any means other than the User (as defined in
Section 2.1) interface provided by Company, including, but
not limited to, by circumventing or modifying, attempting to
circumvent or modify, or encouraging or assisting any other
person to circumvent or modify, any security, technology,
device or software that is part of the Company Properties;
(e) access, tamper with or use non-public areas of the
Company Properties, the Company’s computer systems, or the
technical delivery systems of the Company’s providers; (f)
attempt to probe, scan, or test the vulnerability of any
Company system or network, or breach any security or
authentication measures; (g) disrupt or interfere with the
security of, or otherwise cause harm to, the Company
Properties, systems, resources, accounts, passwords, servers
or networks connected to or accessible through the Company
Properties or any affiliated or linked sites; or (h) avoid,
bypass, remove, deactivate, impair, descramble, or otherwise
circumvent any technological measure implemented by the
Company or any of the Company’s providers or any other third
party to protect the Company Properties.
2. Registration
2.1 Registering Your Account.{" "}
In order to access certain features of the Company
Properties you may be required to become a Registered User.
For purposes of the Terms, a “Registered User” is a user of
the Services (“User”) who has registered an account on the
Website or App (“Account”), or has a valid account on the
social networking service (“SNS”) through which the User has
connected to the App (each such account, a “Third-Party
Account”).
2.2 Access Through a SNS.{" "}
If you access the Services through a SNS, you may link your
Account with Third-Party Accounts, by allowing the Company
to access your Third-Party Account, as is permitted under
the applicable terms and conditions that govern your use of
each Third-Party Account. You represent that you are
entitled to disclose your Third-Party Account login
information to the Company and/or grant the Company access
to your Third-Party Account (including, but not limited to,
for use for the purposes described herein) without breach by
you of any of the terms and conditions that govern your use
of the applicable Third-Party Account and without obligating
the Company to pay any fees or making the Company subject to
any usage limitations imposed by such third-party service
providers. You have the ability to disable the connection
between your Account and your Third-Party Accounts at any
time by accessing the “Settings” section of the App. PLEASE
NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE
PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS
GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY
SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR
PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO
IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE
PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY
ACCOUNTS.
2.3 Registration Data.{" "}
In registering for use of the Services you agree to (1)
provide true, accurate, current and complete information
about yourself as prompted by the App’s registration form
(the “Registration Data”); and (2) maintain and promptly
update the Registration Data to keep it true, accurate,
current and complete. You represent that you are (x) at
least thirteen (13) years old; (y) of legal age to form a
binding contract; and (z) not a person barred from using the
Company Properties under the laws of the United States, your
place of residence or any other applicable jurisdiction. You
are responsible for all activities that occur under your
Account. You agree that you shall monitor your Account to
restrict use by minors, and you will accept full
responsibility for any unauthorized use of the Company
Properties by minors. You may not share your Account or
password with anyone, and you agree to (a) notify the
Company immediately of any unauthorized use of your password
or any other breach of security; and (b) exit from your
Account at the end of each session. If you provide any
information that is untrue, inaccurate, not current or
incomplete, or the Company has reasonable grounds to suspect
that such information is untrue, inaccurate, not current or
incomplete, the Company has the right to suspend or
terminate your Account and refuse any and all current or
future use of the Company Properties (or any portion
thereof). You agree not to create an Account using a false
identity or information, or on behalf of someone other than
yourself. You agree that you shall not have more than one
Account per platform or SNS at any given time. You agree not
to create an Account or use the Company Properties if you
have been previously removed by the Company, or if you have
been previously banned from any of the Company Properties.
2.4 Necessary Equipment and Software.{" "}
You must provide all equipment and software necessary to
connect to the Company Properties, including but not limited
to, a mobile device that is suitable to connect with and use
the Company Properties, in the event you are using the App
on a mobile device. You are solely responsible for any fees,
including Internet connection or mobile fees, that you incur
when accessing the Company Properties.
3. Work Out Warning.
The Site and App may contain fitness programs and videos
featuring high intensity exercises and work out routines.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE
PROFESSIONAL BEFORE STARTING ANY FITNESS PROGRAM TO
DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. This is
particularly true if you (or your family) have a history of
high blood pressure or heart disease, or if you have ever
experienced chest pain when exercising or have experienced
chest pain in the past month when not engaged in physical
activity, smoke, have high cholesterol, are obese, or have a
bone or joint problem that could be made worse by a change
in physical activity. DO NOT START ANY FITNESS PROGRAM IF
YOUR PHYSICIAN OR HEALTH CARE PROVIDE ADVISES AGAINST IT. IF
YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF
BREATH AT ANY TIME WHILE EXERCISING YOU SHOULD STOP
IMMEDIATELY. It is extremely important that you listen to
your body, use common sense, take breaks, hydrate as needed,
and maintain a high level of responsibility and
self-awareness to ensure your safety and avoid injury. ONLY
YOU can know if you are in sufficient physical condition to
perform the activities in any fitness program available on
the Site or App. Please only proceed with any fitness
program available on the Site and App if you accept this
responsibility and feel that you are able to undertake the
physical fitness demands of such fitness programs.
The fitness programs available via the Site and App may
offer health, fitness and nutritional information. Such
information is designed for educational purposes only. You
should not rely on this information as a substitute for, nor
does it replace, professional medical advice, diagnosis or
treatment. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR
HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER
HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY
OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR
HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE
READ OR HEARD ON ANY FITNESS PROGRAM. The use of any
information provided on any program available on the Site
and App is solely at your own risk.
Developments in medical research may impact the health,
fitness and nutritional advice that appear here. No
assurance can be given that the advice contained in this
program will always include the most recent findings or
developments with respect to the particular material.
If you are in the United States and think that you are
having a health or medical emergency, call your health care
professional or 911, immediately.
4. Ownership
4.1 Company Properties.{" "}
You agree that the Company and its suppliers own all rights,
title and interest in the Company Properties. You will not
remove, alter or obscure any copyright, trademark, service
mark or other proprietary rights notices incorporated in or
accompanying the Company Properties. Company’s stylized name
and other related graphics, logos, service marks and trade
names used on or in connection with the Company Properties
are the trademarks of the Company and may not be used
without permission in connection with any third-party
products or services. Other trademarks, service marks and
trade names that may appear on or in the Company Properties
are the property of their respective owners.
4.2 Your Account.
Notwithstanding anything to the contrary herein, you
acknowledge and agree that you shall have no ownership or
other property interest in your Account, and you further
acknowledge and agree that all rights in and to your Account
are and shall forever be owned by and inure to the benefit
of the Company.
4.3 Feedback. You
agree that submission of any ideas, suggestions, documents,
and/or proposals to the Company through its suggestion,
feedback, wiki, forum or similar pages (“Feedback”) is at
your own risk and that the Company has no obligations
(including without limitation obligations of
confidentiality) with respect to such Feedback. You
represent and warrant that you have all rights necessary to
submit the Feedback. You hereby grant to the Company a fully
paid, royalty-free, perpetual, irrevocable, worldwide,
non-exclusive, and fully sublicensable right and license to
use, reproduce, perform, display, distribute, adapt, modify,
re-format, create derivative works of, and otherwise
commercially or non-commercially exploit in any manner, any
and all Feedback, and to sublicense the foregoing rights, in
connection with the operation and maintenance of the Company
Properties.
5. No Obligation to Pre-Screen Content.{" "}
You acknowledge that the Company has no obligation to
pre-screen information, data, text, music, sound,
photographs, videos and other materials available on and
through the Company Properties by third parties (“Third
Party Content”), although the Company reserves the right in
its sole discretion to pre-screen, refuse or remove any
Third Party Content. In the event that the Third Party
Company pre-screens, refuses or removes any Third Party
Content, you acknowledge that the Company will do so for the
Company’s benefit, not yours. Without limiting the
foregoing, the Company shall have the right to remove any
Third Party Content that violates the Terms or is otherwise
objectionable.
6. App Stores. You
acknowledge and agree that the availability of the App is
dependent on the App Store from which you received the App
license. You acknowledge that the Terms are between you and
the Company and not with the App Store. The Company, not the
App Store, is solely responsible for the Company Properties,
including the App, the content thereof, maintenance, support
services, and warranty therefor, and addressing any claims
relating thereto (e.g., product liability, legal compliance
or intellectual property infringement). In order to use the
App, you must have access to a wireless network, and you
agree to pay all fees associated with such access. You also
agree to pay all fees (if any) charged by the App Store in
connection with the Company Properties, including the App.
You agree to comply with, and your license to use the App is
conditioned upon your compliance with, all applicable
third-party terms of agreement (e.g., the App Store’s terms
and policies) when using the Company Properties, including
the App. You acknowledge that the App Store (and its
subsidiaries) are third-party beneficiaries of the Terms and
will have the right to enforce them.
7. Fees and Purchase Terms.
7.1 Payment. You agree
to pay all fees or charges to your Account in accordance
with the fees, charges and billing terms in effect at the
time a fee or charge is due and payable. You must provide
Company with a valid credit card (Visa, MasterCard, or any
other issuer accepted by us) (“Payment Provider”), or
purchase order information as a condition to signing up for
the Services. Your Payment Provider agreement governs your
use of the designated credit card, and you must refer to
that agreement and not the Terms to determine your rights
and liabilities. By providing Company with your credit card
number and associated payment information, you agree that
Company is authorized to immediately invoice your Account
for all fees and charges due and payable to Company
hereunder and that no additional notice or consent is
required. You agree to immediately notify Company of any
change in your billing address or the credit card used for
payment hereunder. Company reserves the right at any time to
change its prices and billing methods, either immediately
upon posting on Company Properties or by e-mail delivery to
you.
7.2 Service Subscription Fees. Y
ou will be responsible for payment of the applicable fee for
any Services (each, a “Service Subscription Fee”) at the
time you create are non-refundable. No contract will exist
between you and Company for the Services until Company
accepts your order by a confirmatory e-mail, SMS/MMS
message, or other appropriate means of communication.
7.3 Taxes.
(a) Services.{" "}
Company’s fees to its Services are net of any applicable
Sales Tax. If any Services, or payments for any Services,
under the Terms are subject to Sales Tax in any jurisdiction
and you have not remitted the applicable Sales Tax to
Company, you will be responsible for the payment of such
Sales Tax and any related penalties or interest to the
relevant tax authority, and you will indemnify Company for
any liability or expense we may incur in connection with
such Sales Taxes. Upon our request, you will provide us with
official receipts issued by the appropriate taxing
authority, or other such evidence that you have paid all
applicable taxes. For purposes of this section, “Sales Tax”
shall mean any sales or use tax, and any other tax measured
by sales proceeds, that Company is permitted to pass to its
customers, that is the functional equivalent of a sales tax
where the applicable taxing jurisdiction does not otherwise
impose a sales or use tax.
(b) Products.{" "}
Company’s prices for merchandise and products sold via the
Websites will include any applicable Sales Tax. When you
order products for overseas delivery, you may be subject to
import duties and taxes, which are levied when the package
with the products arrives at the destination that you
specified. Any charges for customs clearance have to be
borne by you, as Company has no control over such charges
and cannot foresee the amount charged (if any). Since
customs policies vary from country to country, you should
contact the customs office in the country where you have us
ship your products to get more information. Please also be
aware that you are considered the importer of record and
must comply with all laws and regulations of such count.
7.4 Automatic Renewal.{" "}
Your subscription will continue indefinitely until
terminated in accordance with the Terms. After your initial
subscription period, and again after any subsequent
subscription period, your subscription will automatically
commence on the first day following the end of such period
(each a “Renewal Commencement Date”) and continue for an
additional equivalent period, at Company’s then-current
price for such subscription. You agree that your Account
will be subject to this automatic renewal feature unless you
cancel your subscription at least 24 hours prior to the
Renewal Commencement Date by logging into and going to the
"Manage App Subscriptions” page in the Apple App Store or
the “My Apps” page in the Google Play Store app. The same
page will permit you to change your Account settings if you
do not wish your subscription to renew automatically, or if
you want to change or terminate your subscription. If you
cancel your subscription, you may use your subscription
until the end of your then-current subscription term; your
subscription will not be renewed after your then-current
term expires. However, you will not be eligible for a
prorated refund of any portion of the subscription fee paid
for the then-current subscription period. By subscribing,
you authorize Company to charge your Payment Provider now,
and again at the beginning of any subsequent subscription
period. Upon renewal of your subscription, if Company does
not receive payment from your Payment Provider, (i) you
agree to pay all amounts due on your Account upon demand,
and/or (ii) you agree that Company may either terminate or
suspend your subscription and continue to attempt to charge
your Payment Provider until payment is received (upon
receipt of payment, your Account will be activated and for
purposes of automatic renewal, your new subscription
commitment period will begin as of the day payment was
received).
7.5 Free Trials and Other Promotions.{" "}
Any free trial or other promotion that provides Registered
User level access to the Services must be used within the
specified time of the trial. At the end of the trial period,
your use of that Service will expire and any further use of
the Service is prohibited unless you pay the applicable
subscription fee. If you are inadvertently charged for a
subscription, please contact Company to have the charges
reversed.
7.6 Order Acceptance; Returns.{" "}
Your receipt of an electronic or other form of order
confirmation does not signify Company’s acceptance of your
order, nor does it constitute confirmation of our offer to
sell. Company reserves the right at any time after receipt
of your order to accept or decline your orderyour Account
and select your annual package (each, a “Service
Commencement Date”). Except as set forth in the Terms, all
fees for the Services for any reason. Company further
reserves the right any time after receipt of your order,
without prior notice to you, to supply less than the
quantity you ordered of any item. Your order will be deemed
accepted by Company upon our delivery of the products that
you have ordered. We may require additional verifications or
information before accepting any order. All sales of
products are subject to Company’s then-current return
policies, as posted on Company Properties.
7.7 Title and Risk of Loss.
{" "}
All sales of products are made Ex Works (Incoterms 2010)
Company’s designated point of shipment, and title and risk
of loss to each shipment of products shall pass to you when
Company makes such shipment available to the carrier.
7.8 Product Descriptions.{" "}
Descriptions, images, references, features, content,
specifications, products, price and availability of any
products and services are subject to change without notice,
and our current prices can be found on the Website. We make
reasonable efforts to accurately display the attributes of
our products, including the applicable colors; however, the
actual color you see will depend on your computer system,
and we cannot guarantee that your computer will accurately
display such colors. The inclusion of any products or
services on any Website at a particular time does not imply
or warrant that these products or services will be available
at any time. It is your responsibility to ascertain and obey
all applicable local, state, federal and international laws
(including minimum age requirements) in regard to the
possession, use and sale of any item purchased through the
Website. By placing an order, you represent that the
products ordered will be used only in a lawful manner. We
reserve the right, with or without prior notice, to limit
the available quantity of or discontinue any product or
service; to honor, or impose conditions on the honoring of,
any coupon, coupon code, promotional code or other similar
promotions; to bar any user from making any or all
purchase(s); and/or to refuse to provide any user with any
product or service.
7.9 Disputes. You must
notify us in writing within seven (7) days after receiving
your credit card statement, if you dispute any of our
charges on that statement or such dispute will be deemed
waived. Billing disputes should be notified to the following
address: PO Box 56569 Sherman Oaks, CA 91413.
7.10 Return Policy. If
you received a damaged or defective product, please contact
us within 30 days of delivery at: support @andlife.com.
Please be prepared to supply the order number and product
number from your original confirmation email, as well as
your email and phone number. We will make every reasonable
effort to assist you with your return. If you wish to return
a product, please follow the instructions provided by our
customer support personnel.
8. User Conduct.
8.1 General. In
connection with your use of Company Properties, you shall
not:
(a) Make available any text, images, video, audio or other
content (“Content”) that, in Company’s sole discretion, (i)
is unlawful, tortious, defamatory, vulgar, obscene,
libelous, or racially, ethnically or otherwise
objectionable; (ii) violates, or encourages any conduct that
would violate, any applicable law or regulation or would
give rise to civil liability; (iii) promotes discrimination,
bigotry, racism, hatred, harassment or harm against any
individual or group; (iv) is violent or threatening, or
promotes violence or actions that are threatening to any
other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not
limited to, Company personnel, or falsely state or otherwise
misrepresent your affiliation with a person or entity;
(d) Make available any Content that you do not have a right
to make available under any law or under contractual or
fiduciary relationships (such as inside information,
proprietary and confidential information learned or
disclosed as part of employment relationships or under
non-disclosure agreements);
(e) Make available any Content that infringes the rights of
any person or entity, including without limitation, any
patent, trademark, trade secret, copyright, privacy,
publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable
local, state, national or international law or regulation,
or any order of a court;
(g) Register for more than one Account or register for an
Account on behalf of an individual other than yourself;
(h) Stalk or otherwise harass any other user of our Company
Properties; or
(i) Advocate, encourage or assist any third party in doing
any of the foregoing activities in this section.
8.2 Commercial Activities.{" "}
You agree that you will not, under any circumstances (except
to the extent expressly authorized by these Terms):
(a) Reproduce, duplicate, copy, sell, trade, resell or
exploit for any commercial purpose any portion of Company
Properties (including your Account), or access to or use of
Company Properties;
(b) Upload, post, e-mail, transmit or otherwise make
available any unsolicited or unauthorized advertising,
promotional materials, “junk mail,” “spam,” “chain letters,”
“pyramid schemes,” or any other form of solicitation in
connection with any Company Property;
(c) Use Company Properties or any part thereof for any
commercial purpose, including, but not limited to,
communicating or facilitating any commercial advertisement
or solicitation;
(d) Engage in any chain letters, contests, junk email,
pyramid schemes, spamming, surveys or other duplicative or
unsolicited messages (commercial or otherwise) in connection
with Company Properties; or
(e) Market any goods or services for any business purposes
on or in connection with any Company Properties.
9. Indemnification.
You agree to indemnify and hold the Company, its parents,
subsidiaries, affiliates, officers, employees, agents,
partners and licensors (collectively, the “Company Parties”)
harmless from any losses, costs, liabilities and expenses
(including reasonable attorneys’ fees) relating to or
arising out of: (a) your use of, or inability to use, the
Company Properties; (b) your violation of the Terms; or (c)
your violation of any applicable laws, rules or regulations.
The Company reserves the right, at its own cost, to assume
the exclusive defense and control of any matter otherwise
subject to indemnification by you, in which event you will
fully cooperate with the Company in asserting any available
defenses. You agree that the provisions in this section will
survive any termination of your Account, the Terms or your
access to the Company Properties.
10. Disclaimer of Warranties.{" "}
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY
PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES
ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH
ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL
WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE
COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR
CONDITION THAT: (1) THE COMPANY PROPERTIES WILL MEET YOUR
REQUIREMENTS; (2) YOUR USE OF THE COMPANY PROPERTIES WILL BE
UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS
THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL
BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE COMPANY
PROPERTIES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO
DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY
OR THROUGH THE COMPANY PROPERTIES WILL CREATE ANY WARRANTY
NOT EXPRESSLY MADE HEREIN.
11. Limitation of Liability
11.1 Disclaimer of Certain Damages.{" "}
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY
PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE COMPANY
PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR
USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL
DISTRESS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR
MEETINGS WITH OTHER USERS OF THE COMPANY PROPERTIES, ON ANY
THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR
INABILITY TO USE THE COMPANY PROPERTIES; (2) THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM
ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR
OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO
THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO
OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS
OR CONDUCT OF ANY THIRD PARTY ON THE COMPANY PROPERTIES; OR
(5) ANY OTHER MATTER RELATED TO THE COMPANY PROPERTIES,
WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL
THEORY.
11.2 Cap on Liability.{" "}
UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU
FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO
COMPANY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT,
OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B)
THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH
SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT
APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR
PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR
FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR
FRAUDULENT MISREPRESENTATION
11.3 Basis of the Bargain.{" "}
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL
ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND
YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU,
SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT
APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.4 EXCLUSION OF DAMAGES.{" "}
THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST
EXTENT ALLOWED BY LAW
12. Term and Termination
12.1 Term. The Terms
commence on the date when you accept them (as described in
the preamble above) and remain in full force and effect
while you use the Company Properties, unless terminated
earlier in accordance with the Terms.
12.2 Termination of Services by Company.
{" "}
You will have thirty (30) days from the Service Commencement
Date, or any Renewal Commencement Date, for any Services
hereunder, to cancel such Service, in which case Company
will refund your Service Subscription Fee, if already paid
pursuant to Section 7.1 or 7.2, for the applicable Service.
Except as set forth above, the Service Subscription Fee for
any Service shall be non-refundable. If timely payment
cannot be charged to your Payment Provider for any reason,
if you have materially breached any provision of the Terms,
or if Company is required to do so by law (e.g., where the
provision of the Website, the Application, or the Services
is, or becomes, unlawful), Company has the right to,
immediately and without notice, suspend or terminate any
Services provided to you. You agree that all terminations
for cause shall be made in Company’s sole discretion and
that Company shall not be liable to you or any third party
for any termination of your Account.
12.3 Termination of Services by You.
{" "}
If you want to terminate the Services provided by Company,
you may do so by (a) notifying Company at any time and (b)
closing your Account for all of the Services that you use.
Your notice should be sent, in writing, to Company's address
set forth below. THE SERVICES WILL CONTINUE AT THE END OF
EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION
IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.4.
12.4 Effect of Termination.{" "}
Termination of any Service includes removal of access to
such Service and barring of further use of the Service.
Termination of all Services also includes deletion of your
password and all related information, files and content
associated with or inside your Account (or any part
thereof). Upon termination of any Service, your right to use
such Service will automatically terminate immediately. All
provisions of the Terms, which by their nature should
survive, shall survive termination of Services, including
without limitation, ownership provisions, warranty
disclaimers, and limitation of liability.
13. Remedies
13.1 Violations. If
the Company becomes aware of any possible violations by you
of the Terms, the Company reserves the right to investigate
such violations. If, as a result of the investigation, the
Company believes that criminal activity has occurred, the
Company reserves the right to refer the matter to, and to
cooperate with, any and all applicable legal authorities.
The Company is entitled, except to the extent prohibited by
applicable law, to disclose any information or materials on
or in the Company Properties in the Company’s possession in
connection with your use of the Company Properties, to (1)
comply with applicable laws, legal process or governmental
request; (2) enforce the Terms, (3) respond to your requests
for customer service, or (4) protect the rights, property or
personal safety of the Company, its Users or the public, and
all enforcement or other government officials, as the
Company in its sole discretion believes to be necessary or
appropriate.
13.2 No Subsequent Registration.{" "}
If your registration(s) with or ability to access the
Company Properties is discontinued by the Company due to
your violation of any portion of the Terms or for conduct
otherwise inappropriate for the community, then you agree
that you shall not attempt to re-register with or access the
Company Properties or any Company community through use of a
different member name or otherwise, and you acknowledge that
you will not be entitled to receive a refund for fees
related to those Company Properties to which your access has
been terminated. In the event that you violate the
immediately preceding sentence, the Company reserves the
right, in its sole discretion, to immediately take any or
all of the actions set forth herein without any notice or
warning to you.
14. International Users.{" "}
The Company Properties can be accessed from countries around
the world and may contain references to services and content
that are not available in your country. These references do
not imply that the Company intends to announce such services
or content in your country. The Company Properties are
Properties are appropriate or available for use in other
locations. Those who access or use the Company Properties
from other jurisdictions do so at their own volition and are
responsible for compliance with local law.
15. General Provisions
15.1 Electronic Communications.{" "}
The communications between you and the Company use
electronic means, whether you visit the Company Properties
or send the Company e-mails, or whether the Company posts
notices on the Company Properties or communicates with you
via e-mail. For contractual purposes, you (1) consent to
receive communications from the Company in an electronic
form; and (2) agree that all terms and conditions,
agreements, notices, disclosures, and other communications
that the Company provides to you electronically satisfy any
legal requirement that such communications would satisfy if
it were to be in writing. The foregoing does not affect your
statutory rights.
15.2 Assignment. The
Terms, and your rights and obligations hereunder, may not be
assigned, subcontracted, delegated or otherwise transferred
by you without the Company’s prior written consent, and any
attempted assignment, subcontract, delegation, or transfer
in violation of the foregoing will be null and void.
15.3 Force Majeure.
The Company shall not be liable for any delay or failure to
perform resulting from causes outside its reasonable
control, including, but not limited to, acts of God, war,
terrorism, riots, embargos, acts of civil or military
authorities, fire, floods, accidents, strikes or shortages
of transportation facilities, fuel, energy, labor or
materials.
15.4 Questions, Complaints, Claims.{" "}
If you have any questions, complaints or claims with respect
to the Company Properties, please contact us at:{" "}
{" "}
We will do our best to address your concerns. If you feel
that your concerns have been addressed incompletely, we
invite you to let us know for further investigation.
15.5 Dispute Resolution.{" "}
Please read the following arbitration agreement in this
Section (“Arbitration Agreement”) carefully. It requires you
to arbitrate disputes with Company and limits the manner in
which you can seek relief from us.
(a) Applicability of Arbitration Agreement.{" "}
You agree that any dispute or claim relating in any way to
your access or use of the Website, the App, Services,
workout content or to any aspect of your relationship with
Company, will be resolved by binding arbitration, rather
than in court, except that (1) you may assert claims in
small claims court if your claims qualify; and (2) you or
Company may seek equitable relief in court for infringement
or other misuse of intellectual property rights (such as
trademarks, trade dress, domain names, trade secrets,
copyrights, and patents). This Arbitration Agreement shall
apply, without limitation, to all disputes or claims and
requests for relief that arose or were asserted before the
Effective Date of these Terms or any prior version of these
Terms.
(b) Arbitration Rules and Forum.{" "}
The Federal Arbitration Act governs the interpretation and
enforcement of this Arbitration Agreement. To begin an
arbitration proceeding, you must send a letter requesting
arbitration and describing your claim to our us at and/life,
Inc. PO Box 56569 Sherman Oaks, CA 9141. The arbitration
will be conducted by JAMS, an established alternative
dispute resolution provider. Disputes involving claims and
counterclaims under $250,000, not inclusive of attorneys’
fees and interest, shall be subject to JAMS’s most current
version of the Streamlined Arbitration Rules and procedures
available at{" "}
http://www.jamsadr.com/rules-streamlined-arbitration/
; all other claims shall be subject to JAMS’s most current
version of the Comprehensive Arbitration Rules and
Procedures, available at{" "}
http://www.jamsadr.com/rules-comprehensive-arbitration/
. JAMS’s rules are also available at{" "}
http://www.jamsadr.com
{" "}
or by calling JAMS at 800-352-5267. If JAMS is not available
to arbitrate, the parties will select an alternative
arbitral forum. If the arbitrator finds that you cannot
afford to pay JAMS’s filing, administrative, hearing and/or
other fees and cannot obtain a waiver from JAMS, Company
will pay them for you. In addition, Company will reimburse
all such JAMS’s filing, administrative, hearing and/or other
fees for claims totaling less than $10,000 unless the
arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by
telephone, based on written submissions, or in person in the
country where you live or at another mutually agreed
location. Any judgment on the award rendered by the
arbitrator may be entered in any court of competent
jurisdiction.
(c) Authority of Arbitrator.{" "}
The arbitrator shall have exclusive authority to (a)
determine the scope and enforceability of this Arbitration
Agreement and (b) resolve any dispute related to the
interpretation, applicability, enforceability or formation
of this Arbitration Agreement including, but not limited to
any claim that all or any part of this Arbitration Agreement
is void or voidable. The arbitration will decide the rights
and liabilities, if any, of you and Company. The arbitration
proceeding will not be consolidated with any other matters
or joined with any other cases or parties. The arbitrator
shall have the authority to grant motions dispositive of all
or part of any claim. The arbitrator shall have the
authority to award monetary damages and to grant any
non-monetary remedy or relief available to an individual
under applicable law, the arbitral forum’s rules, and the
Agreement (including the Arbitration Agreement). The
arbitrator shall issue a written award and statement of
decision describing the essential findings and conclusions
on which the award is based, including the calculation of
any damages awarded. The arbitrator has the same authority
to award relief on an individual basis that a judge in a
court of law would have. The award of the arbitrator is
final and binding upon you and us.
(d) Waiver of Jury Trial.{" "}
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND
STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT
OF A JUDGE OR A JURY. You and Company are instead electing
that all claims and disputes shall be resolved by
arbitration under this Arbitration Agreement, except as
specified in Section 15.5(a) above. An arbitrator can award
on an individual basis the same damages and relief as a
court and must follow this Agreement as a court would.
However, there is no judge or jury in arbitration, and court
review of an arbitration award is subject to very limited
review.
(e) Waiver of Class or Other Non-Individualized Relief.{" "}
ALL CLAIMS, DISPUTES, AND REQUESTS FOR RELIEF WITHIN THE
SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN
INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS,
ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN
ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED
WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is
issued stating that applicable law precludes enforcement of
any of this subsection’s limitations as to a given claim for
relief, than then claim must be severed from the arbitration
and brought into the State or Federal Courts located in Los
Angeles, California. All other claims, disputes or requests
for relief shall be arbitrated.
(f) 30-Day Right to Opt Out.{" "}
You have the right to opt out of the provisions of this
Arbitration Agreement by sending written notice of your
decision to opt out to the following address: PO Box 56569
Sherman Oaks, CA 91413, or:{" "}
support@andlife.com
, within 30 days after first becoming subject to this
Arbitration Agreement. Your notice must include your name
and address, your Company username (if any), the email
address you used to set up your Company account (if you have
one), and an unequivocal statement that you want to opt out
of this Arbitration Agreement. If you opt out of this
Arbitration Agreement, all other parts of this Agreement
will continue to apply to you. Opting out of this
Arbitration Agreement has no effect on any other arbitration
agreements that you may currently have, or may enter in the
future, with us.
(g) Severability.{" "}
Except as provided in subsection 15.5(e), if any part or
parts of this Arbitration Agreement are found under the law
to be invalid or unenforceable, then such specific part or
parts shall be of no force and effect and shall be severed
and the remainder of the Arbitration Agreement shall
continue in full force and effect.
(h) Survival of Agreement.{" "}
This Arbitration Agreement will survive the termination of
your relationship with Company.
(i) Modification.{" "}
Notwithstanding any provision in this Agreement to the
contrary, we agree that if Company makes any future material
change to this Arbitration Agreement, you may reject that
change within thirty (30 days of such change becoming
effective by writing Company at the following address: PO
Box 56569 Sherman Oaks, CA 91413.
15.6 Governing Law.
The Terms and any action related thereto will be governed
and interpreted by and under the laws of the State of
California, consistent with the Federal Arbitration Act,
without giving effect to any principles that provide for the
application of the law of another jurisdiction. The United
Nations Convention on Contracts for the International Sale
of Goods does not apply to this Agreement.
15.7 Notice. Where the
Company requires that you provide an e-mail address, you are
responsible for providing the Company with your most current
e-mail address. In the event that the last e-mail address
you provided to the Company is not valid, or for any reason
is not capable of delivering to you any notices required/
permitted by the Terms, the Company’s dispatch of the e-mail
containing such notice will nonetheless constitute effective
notice. You may give notice to the Company at the following
address: PO Box 56569 Sherman Oaks, CA 91413. Such notice
shall be deemed given when received by the Company by letter
delivered by nationally recognized overnight delivery
service or first class postage prepaid mail at the above
address.
15.8 Waiver. Any
waiver or failure to enforce any provision of the Terms on
one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
15.9 Severability. If
any provision of the Terms is, for any reason, held to be
invalid or unenforceable, the other provisions of the Terms
will remain enforceable, and the invalid or unenforceable
provision will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law.
15.10 Export Control.
You may not use, export, import, or transfer the Company
Properties except as authorized by U.S. law, the laws of the
jurisdiction in which you obtained the Company Properties,
and any other applicable laws. In particular, but without
limitation, the Company Properties may not be exported or
re-exported (a) into any United States embargoed countries,
or (b) to anyone on the U.S. Treasury Department’s list of
Specially Designated Nationals or the U.S. Department of
Commerce’s Denied Person’s List or Entity List. By using the
Company Properties, you represent and warrant that (i) you
are not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S.
Government as a “terrorist supporting” country and (ii) you
are not listed on any U.S. Government list of prohibited or
restricted parties. You also will not use the Company
Properties for any purpose prohibited by U.S. law, including
the development, design, manufacture or production of
missiles, nuclear, chemical or biological weapons. You
acknowledge and agree that products, services or technology
provided by Company are subject to the export control laws
and regulations of the United States. You shall comply with
these laws and regulations and shall not, without prior U.S.
government authorization, export, re-export, or transfer the
Company products, services or technology, either directly or
indirectly, to any country in violation of such laws and
regulations.
15.11 Accessing and Download the Application from an App
Store.{" "}
The following applies to any App accessed through or
downloaded from an App Store:
(a) You acknowledge and agree that (i) the Terms are
concluded between you and the Company only, and not Apple,
Google or Microsoft, and (ii) the Company, not Apple, Google
or Microsoft, is solely responsible for the App and content
thereof. Your use of the App must comply with the applicable
App Store’s terms of service or usage rules.
(b) You acknowledge that the App Store has no obligation
whatsoever to furnish any maintenance and support services
with respect to the App.
(c) In the event of any failure of the App to conform to any
applicable warranty, you may notify the App Store, and the
App Store will refund the purchase price for the App to you
and to the maximum extent permitted by applicable law,
neither Apple, Google or Microsoft will have any other
warranty obligation whatsoever with respect to the App. As
between the Company and the App Store, any other claims,
losses, liabilities, damages, costs or expenses attributable
to any failure to conform to any warranty will be the sole
responsibility of the Company.
(d) You and the Company acknowledge that, as between the
Company and the App Store, the App Store is not responsible
for addressing any claims you have or any claims of any
third party relating to the App or your possession and use
of the App, including, but not limited to: (i) product
liability claims; (ii) any claim that the App fails to
conform to any applicable legal or regulatory requirement;
and (iii) claims arising under consumer protection or
similar legislation.
(e) You and the Company acknowledge that, in the event of
any third-party claim that the App or your possession and
use of that App infringes that third party’s intellectual
property rights, as between the Company and App Store, the
Company, not the App Store, will be solely responsible for
the investigation, defense, settlement and discharge of any
such intellectual property infringement claim to the extent
required by the Terms.
(f) You and the Company acknowledge and agree that (i) Apple
and Apple’s subsidiaries, are third-party beneficiaries of
the Terms as related to your license of the App from the
Apple App Store, (ii) Google and Google’s subsidiaries, are
third-party beneficiaries of the Terms as related to your
license of the App from the Android market or Google Play
App Stores, and (iii) Microsoft and its subsidiaries are
third-parties beneficiaries of the Terms as related to your
license of the App from the Windows Phone Apps + Games
Store; and that, upon your acceptance of the terms and
conditions of the Terms, Apple, Google, or Microsoft, as
applicable, will have the right (and will be deemed to have
accepted the right) to enforce the Terms as related to your
license of the App against you as a third-party beneficiary
thereof.
(g) Without limiting any other terms of the Terms, you must
comply with all applicable third-party terms of agreement
when using the App.
15.12 Entire Agreement. The Terms are the final, complete
and exclusive agreement of the parties with respect to the
subject matter hereof and supersedes and merges all prior
discussions between the parties with respect to such subject
matter.