TERMS OF SERVICE
Last Updated: October 31, 2020
Welcome to SeanBergara.com. We are happy you have joined.
Ecore Fitness, Inc., doing business as SeanBergara.com, and its members, officers, directors, trustees, shareholders, employees, independent contractors, instructors/teachers, licensees, licensors, subcontractors, representatives, consultants, advisors, attorneys and agents (current and past), suppliers, distributors, subsidiaries and affiliates, individually and collectively, and any related individuals or entities (collectively, “SeanBergara.com,” also referred to herein as “we,” “us,” and “our”) provide website features and other products and services to you when you: (a) visit http://www.seanbergara.com and other websites or software which currently exist or may exist or be created by us in the future, associated widgets, mobile applications and other distribution platforms operated by SeanBergara.com (the “Site”); and (b) use SeanBergara.com products, services, or communication tools/services (collectively, “Services”).
If you do not agree, please discontinue using our Site immediately. We are more than happy to answer any questions you have about our policies. Please contact us at firstname.lastname@example.org if you have questions.
You and SeanBergara.com agree, with limited exceptions noted below, to resolve all disputes between you and us through BINDING ARBITRATION as further provided below. ARBITRATION MEANS THAT YOU AND SEANBERGARA.COM ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
1. This is a Legal Agreement.
These Terms are a legal agreement between you and SeanBergara.com and contain important information regarding your legal rights, remedies, and obligations. By your use of the Site, you: (a) acknowledge you have read, understand, and agree to be bound by these Terms; (b) agree to comply with all applicable laws, rules, and regulations with respect to Your Use of the Site; and (c) represent you are an adult at least eighteen (18) years of age and have the legal capacity to enter into contracts in the jurisdiction where you reside.
2. No Children Are Permitted to Use Our Site.
This Site is not directed toward children under 13 years of age, nor do we knowingly collect information about children under 13. If you are under 13 years of age, you are not permitted to submit any personally identifiable information to us. If we find out you are under the age of 13 years of age, we will immediately upon notice cancel your account. If you wish to report an account created for a minor, please contact us at email@example.com
3. Please Obtain Your Physician’s Permission Before Beginning Any Exercise Program.
You understand that physical exercise can be strenuous and can expose you to the risk of serious injury. We urge you to obtain a physical examination from a doctor before participating in any exercise activity. You voluntarily accept and assume any and all risks, known or unknown, associated with Your Use of the Site and our Services including, without limitation, the risk of physical or mental or emotional injury, minor and/or severe bodily harm, death, and/or illness, which may arise by any means, including, without limitation, acts, omissions, recommendations, or advice given by us.
4. Your Privacy.
5. Our Intellectual Property Rights.
SeanBergara.com is the exclusive owner or licensee of all the content and materials on the Site (the “Content,” as defined in this paragraph), and of all related intellectual property rights therein, including, but not limited to, all copyrights, moral rights, and trademark and patent rights (the “IP”), except as to those rights which have been granted by IP holders. Our Content includes, but is not limited to, all features, functions, services, software, algorithms, designs, objects, documentation, know-how, code, data, art, graphics, animation, photographs, images, logos, text, music, sound effects, audio and/or audio-visual elements, videos, domain names, downloadable materials, look-and-feel, design, layout, organization, presentation, user interface, navigation, stylistic convention and other distinctive brand features of the Site.
All trademarks, trade names, copyrights, logos and service-marks (collectively, the “Marks”) related to our IP are our exclusive property. Unauthorized use of any of the Marks or of any word, term, name or symbol that is likely to cause confusion or mistake with respect to the user's connection or association with us, or our approval or sponsorship of the user’s products or services, or that is likely to dilute any of our Marks is strictly prohibited by law. All third-party IP that appears in or on the Site is the property of its respective owners.
You do not acquire any ownership interest in any IP or the Marks by Your Use of the Site, including any IP and/or Marks we have received authorization to use. You may not use, reproduce, copy, modify, edit, distribute, transmit, adapt, reformat, create works from, display, perform, publish, license, sell or otherwise exploit, through any means or media, any of our IP or Marks or any of the Site’s Content or Services.
6. Your Permission to Use Our Site.
On condition of your acceptance of these Terms, we grant you a non-exclusive, limited, non-transferrable, non-sub-licensable, freely revocable license to use the Site, its Content and Services for your personal, non-commercial use. We reserve all rights not expressly granted herein. We also reserve the right to terminate your license to use the Site at any time, for any or no reason and, at our discretion, to charge to access and view certain parts of our Site.
7. Submission of Your Own Materials, Ideas, and Suggestions.
For all materials, text, graphics, sound files or recordings, videos, new creative work, webisodes, or other information you post, upload or otherwise make publicly available on the Site (including feedback, ratings, comments, ideas and suggestions) (collectively “Submissions”), you hereby grant to SeanBergara.com and our respective designees a worldwide, non-exclusive, sublicensable, transferable, assignable, royalty-free, perpetual, irrevocable right to use, copy, reproduce, edit, transmit, translate, distribute, adapt, reformat, create derivative works from, publicly perform, publicly display and license, digitally perform, make, have made, sell, and offer for sale or any other commercial purpose, your Submissions in any and all media and means of communication, now known or hereafter developed, and to use your name in connection therewith. We have no obligation of confidentiality, express or implied, with respect to your Submissions.
You retain ownership of the intellectual property contained in your Submissions. You represent and warrant, however, that you own all intellectual property rights, any necessary licenses, rights, consents, and permissions to the Submissions, that you are authorized to publish the Submissions, and that you are authorized to permit (and do permit) us to publish the Submissions and exploit all intellectual property rights in and to your Submissions. You also waive to the full extent permitted by law any and all claims against us related to moral rights in the Submissions.
No compensation or reimbursement of any kind will be paid with respect to our use of your Submissions. Moreover, in no circumstances will we be liable to you for the use of any of your Submissions.
If you post a Submission and want us to remove it from the Site, please contact us at firstname.lastname@example.org. We will take reasonable efforts to remove the Submission upon receiving a sufficient request, but we cannot ensure complete or comprehensive removal of the entire Submission.
Information and content submitted by users for publication does not reflect the views of SeanBergara.com. The fact that we permit Submissions on our Site does not warrant the validity, reliability, accuracy, timeliness, or legality of that content.
IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS SECTION, PLEASE DO NOT SHARE, SUBMIT OR POST ANY SUBMISSION ON OR THROUGH THE SITE.
8. Responsible Use of Our Site.
The Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. Further, you agree that Your Use of the Site is solely for private and personal purposes.
You further warrant and represent that you will not engage in any of the following activities, some of which may also expose you to civil and/or criminal liability.
Submissions, Communications and Posts
- You agree not to post any sweepstakes, contests, or lotteries, or any Submissions otherwise related to gambling;
- You agree not to post any Submissions that falsely express or imply endorsement by us;
- You agree not to post any Submissions of a commercial nature (including advertising, promotional materials, spam, junk mail, pyramid schemes, or any other form of unauthorized solicitation), including but not limited to: (i) offering to third parties a service of your own; (ii) reselling, or offering to rent or lease the Site; and/or (iii) offering the Site to the public via communication or integrating it within a service of your own, without our prior written consent;
- You agree not to post Submissions that: (i) are unlawful, violent, inflammatory, intimidating, harmful, harassing, stalking, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, discriminatory, or that otherwise infringe on our or any third party’s intellectual property or other rights, including privacy rights; (ii) are derogatory or harmful to our reputation; (iii) are harmful to children in any manner; (iv) discriminate against any individual; (v) personally identify any other person without obtaining such person’s express advance written consent to the disclosure of his or her personal information; and/or (vi) encourage criminal behavior or conduct that would constitute a criminal offense under any law, or could give rise to civil liability or other lawsuit;
- You agree not to use an inappropriate username or screen name;
No False Information
Unauthorized Access and Use of the Site
- You agree not to exceed your authorized access to any portion of the Site;
- You agree not to use the Site and/or Services in any manner that could interrupt, restrict, inhibit, damage, disable, overburden or impair the Site or interfere with any other user’s use and enjoyment of the Site, including, but not limited to, sending chain letters, pyramid schemes, spam, mass unsolicited messages, or “flooding” servers;
- You agree not to attempt to (or encourage or support anyone else’s attempt to) hack, circumvent, reverse-engineer, decrypt, attack, copy, modify, adapt, disassemble, decompile, translate, or alter the Site (or any database or server connected to the Site) or any portion thereof, or to obtain or attempt to gain unauthorized access to our Site, our computer systems, source code or structure, sequence, or organization of our Site;
- You agree not to interfere or attempt to interfere with the proper working of or activities conducted on the Site, or to bypass any measures we may use to prevent or restrict access to the Site;
- You agree not to use the Site to violate the security of any computer network, or to transfer or store illegal material;
- You agree not to transmit, disseminate, post or use any spam, malware, viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or other objectionable materials, or any other malicious or invasive code, files, or program, or upload or transmit (or attempt to do so) any material that acts as a passive or active information collection or transmission mechanism, including but not limited to, clear graphics interchange formats, pixels, web bugs, cookies, and/or similar devices;
- Other than as the result of standard search engine or internet browser usage, you agree not to use or launch, develop or distribute any automated system, including, but not limited to, any spider, robot, bot, cheat utility, scraper or off-line reader that accesses our Site, or to use or launch any unauthorized script or other software;
- You agree not to remove, obscure or change any copyright, trademark, hyperlink, or other proprietary rights notices contained in or on the Site or any of its Content or any of our code embedded in or embeddable on our Site or on a third-party website;
- You agree not to use the Site in violation of the intellectual property (including, but not limited to, copyright and trademark), contractual, personal, or other proprietary, or legal rights or to our rights or those of any third party;
- You agree not to obscure or cover any notice, banner, advertisement or other branding on our website;
Rights of Others
- You agree not to engage in spamming, flooding, harvesting of email addresses or other personal information, spidering, “screen scraping,” “database scraping,” or any other activity whose purpose is to obtain lists of users, their personally identifiable information or any other information we maintain about Site visitors;
- You agree not to collect, use, seek to use or store personal data about anyone, or personally identifiable information of any user or of any individual associated with us in any manner, not approved in writing in advance by that individual; and
The foregoing examples of unlawful activity are made solely for illustrative purposes and do not constitute an exhaustive list of restricted or prohibited activities.
The provisions of this clause are made in addition to any rights afforded to us by any law.
9. Account Services
a. You Are Responsible for Your Account Maintenance and Confidentiality.
You may access some portions of the Site without registering. However, there is Content on this Site which is available only if you create an account. When any of the Services on the Site require you to open an account (“Account”) or otherwise provide user or registration information, including username and password (“User Information”), you must complete the registration process by providing us with complete, truthful and accurate information. When you create an Account, you alone are responsible for maintaining the strict confidentiality of any username and password relied upon to gain access to your Account, and for the use by you and any other person or entity that accesses our Site by use of your User Information, whether or not that access was authorized by you. You must notify us immediately of any suspected or actual unauthorized use of your Account or your User Information, and of any and all other security breaches. You grant to us and to all other persons and entities involved in the maintenance and operation of the Site the right to use, store, monitor, retrieve and transmit your User Information in connection with maintaining and operating the Site.
b. Normal Carrier Rates Apply.
If you use the Site over any cellular/mobile devices, you hereby acknowledge that your carrier’s normal rates and fees, such as excess broadband fees, will apply.
c. Cancelling Your Account/Account Termination.
You have the right to cancel your Account at any time. You must cancel your subscription with 48 hours of your next billing cycle to avoid being charged for the next billing cycle. We reserve the right to modify, suspend, and terminate any Account and/or to refuse to provide our Services to you or to allow access to our Site, in our sole discretion, without prior notice, at any time and for any or no reason and without any liability to you, including, but not limited to, any of the following reasons: (a) breach or violation of these Terms; (b) upon request by law enforcement; (c) due to unforeseeable technical or security issues or problems; (d) for extended periods of inactivity; or (e) for fraudulent, deceptive, or illegal activity, or for other activity which we believe is harmful to our Site and/or business interests.
Upon termination of your access to or ability to use our Site, including but not limited to suspension of your Account, your right to use or access any Service and/or any Content will immediately cease. You agree that termination, limitation of access and/or suspension shall be made in our sole discretion and that we shall not be liable to you or any third party for the termination, limitation of access, and/or suspension of your Account.
On termination of your Account or upon your deletion of any particular Service or Content, you acknowledge and agree that: (a) caching of, copies of, or references to the Content may not be immediately removed; and (b) such removed Content may persist in backups (not available to others) for reasonable periods of time. You agree to release and indemnify us from all claims related to the retention of deleted Content.
d. No Sharing Account Information.
You agree that you will not share your username and password with others. Excessive usage of the Site will be assumed by SeanBergara.com to be fraudulent use and your account will be immediately cancelled without a refund.
If you voluntarily terminate your Account or allow your Account to lapse, you may reactivate it through the Account interface on the Site.
10. Fees for Features
Some of the Content on Our Site requires you to pay a fee, the details of which are available in various areas of the Site. You agree to pay all fees and applicable taxes incurred by you or anyone using your Account or your User Information.
We may revise the pricing for products, services, or features offered through the Site at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or Services provided by, us, your Account may be closed, and your User Information may be disabled without warning or notice at our sole discretion.
YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS, SERVICES OR FEATURES ARE REFUNDABLE IN WHOLE OR IN PART AT THE SOLE DISCRETION OF SEANBERGARA.COM.
We may, from time to time, modify, amend, or supplement our fees and fee-billing methods, and such changes shall be effective immediately upon posting in these Terms or elsewhere on the Site.
11. Apps and Third-Party Services
When you use our Apps, such as the SeanBergara.com App, you may grant certain permissions to use your device. Most mobile devices provide you with information about these permissions. For most iOS devices: Open the iOS Settings screen, and select the app to see the features the app has permission to use. For most Windows devices, on the Start screen, tap or click Store to open the Windows Store, search or browse for an app, tap or click it, and scroll to the Details section of the app's description page to see the features the app has permission to use.
12. Third Party Websites
You expressly release us from any and all liability arising from your use of any third-party website, service or content. Your dealings with or participation in promotions of advertisers found on those third-party websites, including payment or delivery of goods, and any other terms, including, but not limited to warranties, are solely between you and those advertisers. You specifically agree that we are not responsible for any loss or damage of any sort resulting or arising from your dealings with those third-party websites and/or their advertisers.
13. Disclaimers/No Warranties
We administer, control and operate the Site from our offices in Palm Springs, California, USA. The Site is accessible world-wide. However, some of its features or functions may not be available or appropriate for use outside of the USA and/or may not be available to all persons or in all geographic locations. We make no representation that the Site or our Content and Services are appropriate or authorized for use in all countries, states, provinces, counties, localities or any other jurisdictions.
We do not represent that our Site is governed by or operated in accordance with the laws of other nations. Your Use of the Site may not be legal in your jurisdiction. Therefore, Your Use of the Site is on your own initiative and at your own risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. We reserve the right to limit, in our sole discretion, the provision of any feature or function of the Site to any person and/or geographic area. Any offer for any feature or function made on the Site is void where prohibited.
The Site provides information of a general nature only. You are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any individual may take based on any information or guidance provided at the Site.
AS A USER, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE SITE.
14. Limitation of Liability
ADVICE RECEIVED VIA THE SITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
EXCEPT AS SET OUT BELOW, UNDER NO CIRCUMSTANCES, INCLUDING ANY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANYTHING ARISING UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, WILL SEANBERGARA.COM BE LIABLE FOR ANY DIRECT, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE (INCLUDING, WITHOUT LIMITATION, USE OF OR RELIANCE ON INFORMATION AVAILABLE ON OR IN THE SITE OR OTHERWISE RELIED ON OR USED BY US IN DELIVERING THE SITE, AND/OR ANY INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, AND/OR ANY OTHER FAILURE OF PERFORMANCE), OR FOR ANY CONTENT, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY AGREEING TO AND ACCEPTING THESE TERMS, YOU HEREBY IRREVOCABLY RELEASE SEANBERGARA.COM (AS DEFINED ABOVE) FROM LIABILITY OF ANY KIND, AND FOR ANY CONSEQUENCE(S) ARISING FROM THE USE OF THE SITE. THIS INVOLVES ANY AND ALL LOSSES, INCLUDING, BUT NOT LIMITED TO, MEDICAL EXPENSES, PROPERTY DAMAGE, LOSS OF PROFIT, DAMAGE TO REPUTATION, FEES, ACTUAL ATTORNEYS’ FEES AND COSTS, EXPENSES, OR ANY DAMAGE, WHETHER DIRECT OR INDIRECT, WHETHER FINANCIAL OR NON-FINANCIAL.
IN NO EVENT SHALL SEANBERGARA.COM BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY SEANBERGARA.COM ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE (INCLUDING ANY USER SUBMISSIONS). IN NO EVENT SHALL THE TOTAL LIABILITY OF SEANBERGARA.COM TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE (i) THE AMOUNT, IF ANY, PAID BY YOU TO US FOR YOUR USE OF THE SITE OR FOR ANY OF YOUR ACTIVITIES IN CONNECTION WITH THE SITE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING YOUR CLAIM, OR (ii) THE SUM OF ONE HUNDRED U.S. DOLLARS ($100.00 USD), WHICHEVER IS GREATER.
YOU USE THE SITE AT YOUR SOLE RISK. THE SITE, INCLUDING ALL CONTENT, SOFTWARE, WEBSITE, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH RESPECT TO ANY UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF ANY OR ALL SITE CONTENT, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FEATURES, QUALITY, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. WE DO NOT WARRANT THE SITE OR ITS CONTENTS AND/OR SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR DEFECTS. YOU USE THE SITE AT YOUR OWN RISK. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR ANY DAMAGES TO OR VIRUS(ES) THAT MAY INFECT YOUR COMPUTER EQUIPMENT, CELLULAR/MOBILE PHONE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING, OR USE OF THE SITE. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT SAFEGUARD PROCEDURES AND VIRUS CHECKS (INCLUDING ANTI-VIRUS, REGULAR SYSTEM UPGRADES AND OTHER SECURITY CHECKS AND MEASURES) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. SEANBERGARA.COM MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
Some states or jurisdictions do not allow the exclusion or limitation of consequential or incidental damages and, in such states or jurisdictions, our liability shall be limited to the fullest extent permitted by law.
TO THE EXTENT ALLOWED BY LAW, WE SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF THE FOLLOWING:
- DELAYING, REJECTING, OR REMOVING ANY OR ALL CONTENT AT ANY TIME FOR ANY OR NO REASON WHATSOEVER WITH OR WITHOUT NOTICE TO YOU;
- MODIFYING OR DISCONTINUING TEMPORARILY OR PERMANENTLY, THE SITE (OR ANY PART THEREOF) WITH OR WITHOUT NOTICE TO YOU FOR ANY OR NO REASON WHATSOEVER;
- IMMEDIATELY TERMINATING YOUR ACCESS TO THE SITE FOR ANY OR NO REASON WHATSOEVER AND WITH OR WITHOUT NOTICE TO YOU;
- THE ACCURACY, USEFULNESS, OR AVAILABILITY OF ANY INFORMATION POSTED TO OR THROUGH THE SITE; OR
- ANY LOSS OR DAMAGE OF ANY SORT INCURRED BY YOU AS A RESULT OF INTERACTIONS YOU HAVE WITH THIRD-PARTIES FOUND ON OR THROUGH THE SITE.
IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, PUNITIVE, STATUTORY, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFIT, LOSS OF GOODWILL, INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER FINANCIAL LOSS) IN ASSOCIATION WITH ANY CLAIM, OR ANY LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING RELATING TO OR ARISING UNDER OR OUT OF THESE TERMS, EVEN IF WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE OR OTHER GROUNDS. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
15. Procedure for Making Claims of Copyright Infringement.
We respect the intellectual property rights of others and require our users to do the same. In compliance with the Digital Millennium Copyright Act (“DMCA”), we have adopted a policy to enable, at our sole discretion, the expeditious removal of infringing material and the termination of repeat infringers’ accounts. If you have a good faith belief that your copyright is being infringed by any Content accessible on or through the Site, please send a notice of claimed infringement, including the information listed below, to Sean Bergara at:
- By mail: Sean Bergara, CEO Ecore Fitness, Inc. 285 South Palm Canyon Drive, Ste D6 Palm Springs, CA 92262
- By email: email@example.com
To be effective, the notice of claimed infringement must include the following required contents:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing specific URLs is the best way to help us locate the content quickly);
- Information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, and/or an email address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing Content.
To leave a message for Sean Bergara by phone, please call 760-333-0827.
If you believe that your rights, or the rights of a third party, are being violated in any way by any Content accessible on or through the Site, please contact us at 760-333-0827.
Where appropriate, we will work to prevent unlawful activity from taking place on or through the Site.
You hereby agree that we shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.
17. Released Parties
To the fullest extent permitted by law, you release SeanBergara.com, as defined above, from any and all responsibility, liability, claims, demands, and/or damages (direct, indirect, incidental, punitive, statutory, exemplary, special, or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following: (i) disputes between users, including those between you and other users; (ii) third party sites and services, including Content found on such sites and services; (iii) disputes concerning any use of or action taken using your Account by you or a third party; (iv) claims relating to the unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content. You also waive California Civil Code §1542 which says:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal or state statute or principle of common law of any state of the United States, or any political entity or nation, province or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542. You agree not to file any action or lawsuit inconsistent with the foregoing release.
18. Disputes and Dispute Resolution
All claims and disputes arising under or relating to this Agreement are to be settled by arbitration in the State of California, County of Riverside.
BINDING ARBITRATION AGREEMENT AND CLASS WAIVER DISCLOSURE
YOU AGREE THAT, BY AGREEING TO THESE TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT, AND THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
This arbitration provision shall survive termination of these Terms.
Pre-Filing Mediation: In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by overnight courier, a written Notice of Claim (“Notice”). If you are the claimant, the Notice must be addressed to: Sean Bergara, CEO, SeanBergara.com c/o Ecore Fitness, Inc. 285 South Palm Canyon Drive, Suite D6, Palm Springs, CA 92262, USA or by emailing firstname.lastname@example.org. If we are the claimant, the Notice must be sent to the email address we have on file for you in your Account. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court, as appropriate.
Additional Arbitration Provisions:
- Settlement Offers: During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator.
- Initiating a Claim: The form required to initiate an arbitration can be printed or downloaded from the American Arbitration Association.
- Fees for Initiating Arbitration: If you are required to pay a filing fee to initiate arbitration, after we receive notice of the initiation of arbitration, we will promptly reimburse you for your payment of the filing fee at the address provided in the Notice, unless your claim is for greater than US $1,000.
- Applicable Rules; Administrator: The arbitration will be governed by the Arbitration Rules of the American Arbitration Association, as modified by this Agreement, and will be administered by American Arbitration Association, Inc. The Arbitration Rules are available online at American Arbitration Association.
- The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement.
- Location of Hearing: Unless you and we agree otherwise, any arbitration hearings will take place in Palm Springs, California. If your claim is for US $10,000 or less, we agree you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing. If your claim exceeds US $10,000, the right to a hearing will be determined by the Arbitration Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Class Waiver: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate the claims of more than one party and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by any individual, then the entirety of the arbitration provision set forth herein shall be null and void.
- Remedies; Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim. The arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the Parties waive any right to recover any such damages. Judgment on the Award may be entered in the State of California in the County of Riverside.
- Small Claims Procedure Alternative: Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such a program) as an alternative to proceeding with arbitration.
- Opt-Out Provision: You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in these Terms by doing the following: Within 15 days of your first accessing the Site, you must send a letter to Sean Bergara c/o Ecore Fitness, Inc. 285 South Palm Canyon Drive Suite D6 Palm Springs, CA 92262, USA or by email to email@example.com that specifies: (1) your name; (2) your IP address(es); (3) your mailing address; and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms. All other Terms shall continue to apply to you and your Account, including the requirement to participate in pre-dispute mediation. You are not required to send the letter by certified mail, return receipt requested or overnight courier, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove the request was postmarked within the applicable 15-day deadline.
19. Notice for California Users.
Under California Civil Code Section 1789.3, users of the Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
20. Notice For New Jersey Users.
The following sections shall not apply to users of the Website from New Jersey: Disclaimers/No Warranties, Limitation of Liability and Jurisdiction.
- Modifications to these Terms and Other Policies/Guidelines. We reserve the right to modify these Terms and/or any other guidelines or policies affecting the Site at any time and may do so from time to time. Such revisions will become effective upon the earlier of: (i) posting of the revisions to the Site, or (ii) distribution of the revisions by any written contact method we have with you, including by email. For this reason, please visit this page on a regular basis and check the “Last Updated” date at the top of these Terms to ensure you are familiar with the most recent version of these Terms. Your Use of the Site after the effective date of the revisions signifies your acceptance of any such revisions. If you do not agree, you must stop using the Site immediately.
- Modifications to Site Features, Design, User Interface, etc. We may, either partially or in its entirety and without being obligated to provide prior notice, modify, adapt, or change the Site and/or any of its Services, features, the user interface and design, the extent and availability of the Content in or on the Site, and any other aspect related to the Site. You will have no claim, complaint, or demand against us for applying such changes or for failures incidental to such changes.
- Assignment. You agree that we may assign any of our rights, and/or transfer, sub-contract, or delegate any of our obligations under these Terms, and the assignment of any such rights, benefits, or obligations will be binding upon and inure to the benefit of our successors and assigns. Your agreement to these Terms is personal to you as an individual, and so you may not transfer or assign your rights and obligations under this Agreement to any third party without our prior written consent.
- Termination. We may terminate these Terms for any or no reason at any time by notifying you through a notice on the Site, by email, or by any other method of communication. Any such termination will be without prejudice to our rights, remedies, claims, or defenses hereunder. Upon termination, you will no longer have a right to access your Account or your Submissions. We will not have any obligation to assist you in migrating your data or your Submissions and we may not keep any back-up of any of your Submissions. We will not be responsible for deleting your Submissions. All provisions of this Agreement that by their nature shall survive termination shall indeed survive termination, including but not limited to: “Our Intellectual Property Rights,” “Your Permission to Use Our Site,” “Disclaimers/Warranties,” “Limitation of Liability,” “Indemnity,” “Released Parties,” and “Disputes and Dispute Resolution.” Termination of your access to and use of our Site shall not relieve you of any obligations arising or accruing prior to such termination, or limit any liability which you otherwise may have to us or any third party.
- Export Control. 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.
- Jurisdiction. If any court of competent jurisdiction finds the arbitration and/or class action waiver provisions in these Terms invalid or inapplicable, you irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts in Palm Springs, California, and the related appellate courts, in any related action or proceeding and agree to not raise any claims as to Palm Springs, California being an inconvenient forum.
- Governing Laws. You agree the laws of the United States of America and the laws of the State of California, without regard to any principles of conflicts of laws, will govern these Terms, Your Use of the Site, and all matters relating to your access to, and/or use of, the Site, including all disputes between you and us. You also agree that: (i) the Site shall be deemed solely based in California; and (ii) the Site shall be a passive site that does not give rise to personal jurisdiction over us, either specific or general, in any jurisdiction other than California.
- Waiver. Our failure to enforce any rights or provisions of these Terms shall not be deemed a waiver or relinquishment of such rights or provisions. Any waiver of any right or provision of these Terms must be in writing.
- Severability. If any part of these Terms is determined to be invalid or unenforceable under applicable law, including the warranty disclaimers and liability limitations stated elsewhere herein, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in full effect.
- Drafter. No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of this Agreement for purposes of interpreting any provision hereof in any judicial or other proceeding that may arise between the parties.
- Headings. The headings in these Terms are for convenience only and have no legal or contractual effect.
- Terms. “Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.
- Agreement in English. It is the express wish of the parties that this agreement and any and all related documents be stated in English. To the extent any agreement or other document is prepared in a language other than English, and there results a conflict between the English version and the version in the other language, the English version shall govern.
- Questions. If you have any questions about these Terms or the Site, please contact us at firstname.lastname@example.org or Sean Bergara c/o Ecore Fitness, Inc. 285 South Palm Canyon Drive Suite D6 Palm Springs, CA 92262, USA. We will make our best efforts to address your inquiry promptly.