Effective Date: July 14, 2020
Welcome to the Ten Spot Platform!
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity as an Admin User, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM OR SERVICES.
1. ABOUT THE TERMS
2. ABOUT THE PLATFORM
4. FEES AND PAYMENT TERMS
5. USER CONDUCT GUIDELINES
6. INTELLECTUAL PROPERTY OWNERSHIP
7. NO ENDORSEMENT OR MEDICAL ADVICE
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
9. GOVERNING LAW & DISPUTE RESOLUTION
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
Ten Spot reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on Ten Spot unless it is in writing and signed by an authorized representative of Ten Spot.
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
Subject to your compliance with the Terms, Ten Spot grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform and Services, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by Ten Spot, in the manner permitted by the Terms.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
Ten Spot reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Services, in whole or in part, including any App, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Your Content at our sole discretion at any time without prior notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Ten Spot has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
The Platform is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
While certain Platform Content is publicly available, you must register for a user account before you are able to use any of the Services. You may register to create an account directly via the Website or App.
You may not register for an account on behalf of any person (other than yourself). No person or entity may have more than one active account at any given time.
For corporate clients, designated administrators will set up a primary account, and will designate the individuals who are eligible to sign up for subaccounts. Administrators for each client will have access to manage and view activities associated with the subaccounts registered to that client. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts.”)
Your account and account profile page will be created based upon the information you provide to us.
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information that you submit when you register will be shared in accordance with your selections in your account settings when you share Your Content.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Ten Spot account or any other account that you may connect to your Ten Spot account. You agree not to disclose your username or password to any third party, and you agree to immediately notify Ten Spot of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Ten Spot cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
You may cancel your account at any time, unless you are an Admin User, in which case the term set forth on the applicable Order Form shall govern.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform and Services at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content.
Ten Spot reserves the right to suspend or terminate your account or your access to the Platform if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, out-dated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “General User Conduct” section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Ten Spot will have the right, but not the obligation to delete Your Content.
If Ten Spot has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Ten Spot’s reasonable satisfaction.
Ten Spot shall charge and the Customer shall prepay the annual Service Fees specified in the Order Form on an annual basis. Except as otherwise provided in an Order Form or other document executed between the parties, all amounts are in U.S. dollars, and all payments shall be made in U.S. dollars. The Order Form total does not include sales tax. Ten Spot will collect sales tax as required by each jurisdiction rules. In the event Customer exceeds the number of allowable Users, Customer will automatically be converted to the next tier of fees and will be automatically charged such higher fees upon notice to the Admin User. The Customer agrees that the services provided by Ten Spot as outlined in this Order Form shall automatically renew for a subsequent period of the same length and cost as indicated in this Order Form unless either party gives the other written notice of termination at least (30) days prior to expiration of the current term.
Any outstanding amounts will accrue interest at the lesser of 1.5% per month and the maximum rate permitted by law. If Ten Spot is unable to successfully charge your credit card or payment account for fees due, or invoices are not paid in full when due, we reserve the right to restrict or suspend access to your account, or terminate your account (including, any employee accounts associated with your account). If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will be immediately billed for any unbilled fees incurred prior to the effective date of termination. You will not receive a refund for any amounts you already paid for that billing period. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
You agree to pay the fee for the annual subscription fee for your subscription at the rates set forth in the Order Form, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change.
Upon completion of the Initial Term set forth in the Order Form, the Order Form shall continue for successive annual terms on a year on year basis unless either party provides written notice of its intent not to renew no less than sixty (60) days prior to the end of the then-current term. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page, emailing us at email@example.com. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
Payment of invoices is due within thirty (30) days.
Alternatively, you may choose to pay ACH to a designated Ten Spot account. In that case, Ten Spot will invoice you in accordance with the foregoing. You shall notify Ten Spot if Customer requires a Purchase Order in regard to the fees due hereunder. Any terms and conditions on the Customer’s purchase order, or that are specified in any email from the Customer or handwritten on this Order Form, are void and have no legal effect and shall not be binding on Ten Spot.
Unless Ten Spot agrees or states otherwise in writing, all fees and charges are nonrefundable.
You are solely responsible for any fees or charges incurred to access the Platform through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Ten Spot is not liable in any way for any third party charges.
Should a customer choose to terminate this Agreement without cause prior to the completion of the contract term, a written request for termination must be submitted to the Account Manager providing details on the intent to terminate with 30 days notice. All prepaid funds will be non-refundable and the customer will be subject to a termination fee of 100% of the remaining obligations specified in the existing contract and payment terms. The termination fee will be due by the last day of service, 30 days after notifying Ten Spot.
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below.
You agree that you will access and use the Platform and Services for your personal use only.
Public Areas: Your Content may be viewed by other Users and by other persons or entities, including through third party services and websites. Thus, you should only capture, record, upload, stream, share or store videos, images, information and other content that you are comfortable sharing with others.
You agree that you will not access or use the Platform to capture, record, upload, stream, share or store any video or images, or otherwise act in any manner, that:
Without limiting the above, you are not authorized to access or use the Platform:
Further, you may not:
Ultimately, all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the User who originated such content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or endorse any opinions expressed in such User Content. You understand that by using the Platform, you may be exposed to User Content that is offensive, harmful, inaccurate, misleading, fraudulent or otherwise inappropriate. Under no circumstances will Ten Spot be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content.
We may, but are not required to monitor or control the User Content captured, recorded, uploaded, streamed, shared or stored on or through the Platform, and we cannot take responsibility for such User Content. Any use or reliance on any User Content is at your own risk.
If you feel that another User has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the User to Ten Spot at firstname.lastname@example.org. Ten Spot reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will Ten Spot be liable for the acts or omissions of any User or any third party.
If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
Ten Spot reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Ten Spot has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform or Services by any User, to access, review, preserve and disclose any User Content, or to remove or disable access to any User Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Ten Spot, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Ten Spot, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Services (including for customer support purposes).
You agree to cooperate with and assist Ten Spot or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
The Platform and Services, including Website and App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Platform Content, and all intellectual property rights therein are the exclusive property of Ten Spot and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Ten Spot (the “Ten Spot Marks”) are the property of Ten Spot, and that you are not permitted to use the Ten Spot Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Ten Spot or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Ten Spot’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Ten Spot or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
By capturing, recording, uploading, streaming, sharing or storing Your Content, you hereby grant Ten Spot a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display Your Content in any and all media as necessary to provide the Services to you, including, customer support services, and otherwise operate the Platform, including for product development and de-bugging purposes.
You agree that this license includes the right for Ten Spot to provide, promote, and improve the Platform and Service. Such additional uses by Ten Spot, or other companies, organizations or individuals who partner with us, may be made with no compensation paid to you with respect to Your Content.
We may modify or adapt Your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish and display your name, city, state and other information in connection with Your Content as described herein or elsewhere on the Platform, subject to any applicable data protection laws.
Ten Spot does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Ten Spot under these Terms.
You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of your Content by other users and our third-party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor Ten Spot’s use of Your Content (or any portion thereof) on or through the Platform or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Ten Spot. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Ten Spot or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Ten Spot all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Ten Spot’s rights in such improvements, enhancements and modifications.
Users are required by the Terms to provide accurate information and we do not guarantee the completeness or accuracy of any information provided by any User or Instructor, including the User’s and Instructor’s purported identity, credentials or background. We recommend that you exercise due diligence when deciding to communicate or interact with another User or an Instructor, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users or any Instructors. YOU UNDERSTAND THAT TEN SPOT MAY NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON OR ANY OTHER SCREENING OF INSTRUCTORS.
The Platform may also provide links to third-party websites, resources or services, including those of Instructors. You acknowledge and agree that Ten Spot is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Ten Spot of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
7.3 TEN SPOT RECOMMENDS THAT YOU CONSULT A PHYSICIAN BEFORE BEGINNING ANY EXERCISE OR NUTRITIONAL PROGRAM. TEN SPOT IS NOT A LICENSED MEDICAL CARE PROVIDER. YOU ACKNOWLEDGE THAT PARTICIPATING IN ANY EXERCISE PROGRAM CAN RESULT IN PHYSICAL INJURY AND YOU AGREE TO DO SO AT YOUR OWN RISK. THE FINDINGS AND OPINIONS OF ANY INSTRUCTORS OR THIRD PARTIES EXPRESSED ON OR THROUGH THE PLATFORM ARE THOSE OF SUCH PARTY AND DO NOT NECESSARILY STATE OR REFLECT THOSE OF TEN SPOT. THE INFORMATION PRESENTED OR CONTAINED IN THE PLATFORM IS PRESENTED FOR THE EDUCATION AND INFORMATIONAL PURPOSES ONLY. NOTHING CONTAINED IN THE PLATFORM OR THE PLATFORM CONTENT IS INTENDED AS A MEDICAL DIAGNOSIS OR TREATMENT. THE INFORMATION AVAILABLE VIA THE PLATFORM SHOULD IN NO WAY BE CONSIDERED COMPLETE, ACCURATE, NOR SHOULD IT BE RELIED ON TO SUGGEST A COURSE OF TREATMENT FOR YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES. NO PLATFORM CONTENT SHOULD BE USED IN PLACE OF A VISIT, CALL, CONSULTATION OR THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER. SHOULD YOU HAVE ANY HEALTH CARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER PROMPTLY. ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BEFORE EMBARKING ON A NEW TREATMENT, DIET OR FITNESS PROGRAM. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT DUE TO ANY PLATFORM CONTENT.
You represent and warrant to Ten Spot that:
(i) you have the power and authority to accept and agree to the Terms;
(ii) you own or control all of the rights necessary to grant the rights and licenses granted herein;
(iii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the Platform and Services;
(iv) the exercise by Ten Spot of the rights granted by you hereunder will not cause Ten Spot to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
(v) all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, TEN SPOT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM OR SERVICES, OR THAT USE OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT. FINALLY, EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO OTHER USERS, INSTRUCTORS, OR THE INSTRUCTOR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY RELATING TO A USER'S OR INSTRUCTOR'S CHARACTER, EDUCATION, TRAINING, SKILL, ABILITY, LICENSURE, OR CERTIFICATION.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
You hereby and forever waive, release and discharge Ten Spot and its officers, agents, employees, representatives, executors and all others acting on their behalf from any and all claims or liabilities for injuries or damages to your person and/or property, arising out of or connected with your participation in any activities, programs or services of any Instructor or the use of any equipment at various sites, including home, provided by and/or recommended by an Instructor.
Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TEN SPOT AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Ten Spot its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions available on and through the Platform, (ii) Your Content, (iii) any interactions with any other User or Instructor, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
You agree that, at Ten Spot’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Ten Spot may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Ten Spot (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND Ten Spot HAVE AGAINST EACH OTHER ARE RESOLVED.
The Terms shall be governed by and interpreted in accordance with the laws of the State of New York without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York, New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
Subject to the above arbitration provisions, you and Ten Spot agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform, including the App (collectively, “Disputes”) in the federal or state courts located in New York, New York and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Ten Spot retains the right to submit a Dispute to any court of competent jurisdiction. Ten Spot also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST Ten Spot ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND Ten Spot OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Ten Spot. We will notify you of amendments to this section by posting the amended Terms on www.tenspot.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Ten Spot in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Ten Spot may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
Unless otherwise notified in writing, the Customer agrees to allow Ten Spot to use the Customer’s name and logo on the Ten Spot website, blog and/or in other marketing materials.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Ten Spot (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) ”herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears; (ii) ”or” connotes any combination of all or any of the items listed; and (iii) ”including” (and any of its derivative forms) means “including but not limited to.”
If you have any questions or concerns, please contact Ten Spot at firstname.lastname@example.org.
You can also write to us at:
Fitspot Wellness, Inc. dba Ten Spot
87 Spring St, FL 4
New York, NY 10012
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Platform or Services or requests to receive further information regarding use of the Platform or Services may be sent to the above address or to email@example.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Copyright ©2020 Fitspot Wellness, Inc. dba Ten Spot. All rights reserved.