Effective Date: October 20th 2020
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR SYSTEM AND ANY OTHER APPLICATION THAT WE MAY OWN OR OPERATE CURRENTLY OR IN THE FUTURE (collectively “System Application”) CAREFULLY. By using our System Application, you agree to these Terms and Conditions of Use (“Terms & Conditions”). We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms & Conditions at any time. You should check these Terms & Conditions periodically for changes. By using this System Application after we post any changes to these Terms & Conditions, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to these Terms & Conditions, you should not use our System and, if applicable, you should arrange to cancel your registered user account or subscription with us.
- SCOPE OF TERMS & CONDITIONS
Unless we indicate otherwise, these Terms & Conditions apply to your use of Passion Physique Services, App and Nutrition Products which are owned or operated by Peanut Physique LLC (“Passion Physique”) and our affiliates (collectively, “company”, “we,” “us,” or “our”), including, without limitation, this System. For purposes of these Terms & Conditions, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, Passion Physique.
- TERMS & CONDITIONS – IN GENERAL
By using this System Application, you agree to be legally bound and to abide by these Terms & Conditions, just as if you had signed this agreement. If you do not comply with these Terms & Conditions at any time, we reserve the right, if applicable, to terminate your password, user account, and/or access to this System Application (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the System Application, including, but not limited to, (i) restricting the time the System Application is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user’s right to use the System Application. You agree that any termination or cancellation of your access to, or use of, the System Application may be affected without prior notice. If you do not abide by the provisions of these Terms & Conditions, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to such information and/or files, or our System Application. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our System Applications or Products/Services. From time to time, we may supplement these Terms & Conditions with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on the System Application to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms & Conditions.
- OUR SERVICES & PRODUCTS
Our Services offers tools, resources and a venue to connect customers seeking nutrition and fitness education with online nutrition and fitness education videos, e-books, content and audio materials. In addition, customers may also be seeking coaching with those seeking to provide coaching services. Passion Physique offers nutrition supplements to help support customers’ wellness goals. Passion Physique: (a) does not employ, recommend or endorse any coaches and has no control over the acts or omissions of any coaches; (b) is not responsible or liable in any manner for the performance or conduct of any coaches or other third parties online or offline; (c) makes no representations or warranties about the quality of the services provided by any coach or about your interactions or dealings with other coaches except as expressly stated on our Services; (d) does not screen coaches or conduct any kind of identity or background checks except as otherwise expressly stated in these Terms or on or in our Services; and (e) is not responsible for the content accuracy of nutrition or fitness-related videos, audio or print materials. Passion Physique hereby expressly disclaims, and you hereby expressly release Passion Physique from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm or damages arising from or related to our Services/Products or your interactions or dealings with coaches, including any acts or omissions of users online or offline. All use of our Services and Products is at your sole and exclusive risk.
- COMMUNICATION PREFERENCES
By creating a Passion Physique account, you consent to receive communications from Passion Physique and coaches to include but not limited to phone, text messaging, video conference and/or email. These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information), dietary plans, fitness tips, accountability support and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in these communications.
- PASSION PHYSIQUE PRODUCTS & SERVICES
Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order.
You understand that each automatic renewal shipment and/or online nutrition fitness plan is a monthly recurring billing subscription. You acknowledge and agree to give Passion Physique authorization to charge your credit card on file every 30 days for your automatic renewal shipment and/or nutrition fitness plan until cancelled by you. In the event you want to change, cancel or update payment information associated with your Passion Physique account, you can do so at any time by email [email protected] , calling our customer support center or going into your online account and updating your subscription. You must cancel your product or online nutrition plan at least 72 hours prior to your subscription renewal date.
Returns and Refunds
Passion Physique offers a 100% money-back guarantee on any UPOPENED supplements or shakes. Within 14 days of your financial transaction of any supplement or shake purchase, Passion Physique will give a full refund of products, less applicable shipping and handling. We will not be responsible for any loss or damage to returned products that occur in transit. If returned products are lost or damaged in transit, we reserve the right to charge you for, or not refund any amounts attributable to, any such lost or damaged products.
Product and Service Descriptions, Price and Other Information.
We have taken reasonable precautions to ensure that all product descriptions, prices and other information shown on our websites are correct and fairly described. However, when ordering products or services through our websites, please note that:
Passion Physique reserves the right to not accept any orders if there is a material error in the description of the product or service, or if the price advertised is incorrect;
Passion Physique reserves the right to refuse or discontinue the supply of any product or service to any customer, or change, suspend or discontinue any aspect of our websites at any time in our sole and absolute discretion;
All prices are displayed in United States Dollars unless expressly indicated otherwise;
Packaging and contents may vary from that shown on our websites;
Any weights, dimensions, and capacities shown on our websites are approximate only;
When you place an order, we estimate the tax applicable to your order and include that estimate in the total for your convenience (the final tax amount will be based on the then-current rate as established by the taxing authority, charged to your payment card, and reflected in the order confirmation and package invoice we provide to you); and
All items are subject to availability and we will inform you as soon as reasonably possible if any product or service you ordered is not available and whether we may offer you an alternative of equal or higher quality and value.
We reserve the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order.
We will take commercially reasonable efforts to ship your products within the timeframe we provided to you at the time of purchase. Certain products shipped within the continental United States will in most cases be delivered within 3-7 business days if your product is eligible for express shipping. Packages shipped outside the United States or to Alaska, Hawaii or U.S. territories may take longer and up to 7-21 days. Please see the tracking information provided with your order confirmation for approximate delivery timeframes.
Please note that any timeframes we provide are good faith estimates and may be subject to change. We will take commercially reasonable steps to inform you in writing of any shipping delays that extend beyond the timeframe we provided at the time of purchase. Product availability may be limited in some cases and not available for immediate shipment. In that case, products may be delivered in separate shipments depending on availability. For example, if your purchase included two or more items, we may ship those products which are in stock, and later ship the other products to you when they become available. You are always welcome to call Customer Service if you wish to cancel or modify your order due to a delay in shipping. We will not be liable beyond refunding your purchase price if there is a delay in delivering your product(s).
The term of this Agreement will begin upon your successful payment for the Services and will continue indefinitely unless terminated by either party as permitted herein.
You acknowledge and agree that the Company may suspend or terminate your access to the Services if you (a) breach any term of this Agreement, or (b) engage in any conduct that the Company determines in its discretion may have an adverse effect on the Company or its reputation. Upon termination, you will no longer have access to the Services, mobile application or other content provided through the Services. In addition to termination, Company reserves the right to pursue any and all remedies available to it in the event of such a breach or conduct.
- RESTRICTIONS ON USE OF MATERIALS
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display this System Application and the material provided hereon for your personal, noncommercial use, provided that you comply fully with the provisions of these Terms & Conditions. You acknowledge that this System Application contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on this System Application are trademarks of their respective owners. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this System Application. You may NOT(a) decompile, reverse engineer, disassemble or otherwise reduce any Passion Physique services to a human-readable form; (b) remove identification, copyright or other proprietary notices in or on the Passion Physique Services; (c) access or use any Passion Physique Services in an unlawful or unauthorized manner or in a manner that suggests an association with our content, products, services or brands, unless you have an executed agreement with us that allows for such activity; (d) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Passion Physique Services or any part thereof, except as expressly authorized in these terms or as part of the Passion Physique Services provided to you; (e) introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Passion Physique Services or connected network, or interfere with any person or entity’s use or enjoyment of any Passion Physique Services; (f) access, monitor, or copy any element of the Passion Physique Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or (g) sell, resell, or make commercial use of the Passion Physique Services, unless you have an executed agreement with us that expressly allows for such activity. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other application or networked computer environment is strictly prohibited unless you receive our prior written consent.
Reselling on 3rd Party Websites
Reselling any Passion Physique product on any 3rd party website such as Amazon, EBay, Facebook Marketplace, etc… is strictly prohibited unless having written permission from Passion Physique corporate office.
Purchasing any words or variations of phrases of Passion Physique for online advertising is strictly prohibited unless having written permission from Passion Physique corporate office.
You may not submit or upload User Generated Content that Passion Physique determines in its sole and absolute discretion is illegal, infringing, false, defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law. We have the right, but not the obligation, to monitor, screen, post, remove, modify, store and review User Generated Content or communications you submit, at any time and for any or no reason, including to ensure that the User Generated Content or communication conforms to these Terms, without prior notice to you.
You represent and warrant that your User Generated Content conforms to these Terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these Terms. You agree to indemnify and hold us and our affiliates and subsidiaries, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
We will not be responsible or liable to any third party for any User Generated Content. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by other users of the Passion Physique Services, or any authors, nutrition experts or otherwise. User Generated Content shall not state or reflect the attitudes and opinions of Passion Physique, and any views and opinions expressed on our websites shall not be attributed to or otherwise endorsed by Passion Physique. You agree to comply with all applicable local, national, and international laws, rules, regulations and ordinances in connection with your use of any Passion Physique Services and our websites.
- PARENTAL OR GUARDIAN PERMISSION
We do not intend to accept any information from individuals under the age of 18. If you are not yet 18 years of age, do not use this System Application. Parents are urged to monitor and supervise their children’s on-line activity. If you are under the age of 18, you may not use this System Application without the written permission of your parent/guardian and physician. No information regarding any person under the age of 18 will be collected or stored on this System Application. If you are a health coach, health educator, or physician or other type of health professional allowing users to access our System Application, it is your responsibility to refrain from enabling a user under the age of 18 to access our System Application and to ensure all users under the age of 18 have written parent/guardian and physician consent for System Application use.
These Terms & Conditions apply only to this System Application, and not to the applications or systems of any other person or entity. We may provide, or third parties may provide, links to other worldwide applications or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such applications or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other application or system (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other application or system to that applications or system’s administrator or webmaster.
- THIRD PARTY PRODUCTS AND SERVICES
You may order services, merchandise or other products through our System Application from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
- PASSWORD AND USER SECURITY
If you are a registered user of this System Application, you are entirely responsible for maintaining the confidentiality of your password and user account information. You agree to notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password. You are entirely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorized use of your user account or any other breach of security known to you.
- HEALTH, NUTRITION & FITNESS DISCLAIMER
PASSION PHYSIQUE IS NOT FOR MEDICAL CARE
PASSION PHYSIQUE IS NOT INTENDED TO REPLACE THE RELATIONSHIP WITH YOUR PHYSICIAN OR OTHER MEDICAL PROVIDERS. WE ARE NOT A LICENSED MEDICAL PROVIDER AND HAVE NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC EXERCISE OR EATING PLAN ON A MEDICAL CONDITION. YOU SHOULD ALWAYS CONSULT A PHYSICIAN BEFORE STARTING ANY FITNESS PROGRAM, CHANGING YOUR DIET OR IF YOU HAVE ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION ON A DIET AND EXERCISE PROGRAM. IF YOU DO HAVE A HEALTH CONDITION, YOU REPRESENT THAT YOU HAVE OBTAINED THE APPROVAL FROM YOUR HEALTHCARE PROFESSIONAL PRIOR TO RECEIVING DIET AND EXERCISE SERVICES. YOU SHOULD UNDERSTAND THAT WHEN PARTICIPATING IN ANY DIET OR EXERCISE PROGRAM, THERE IS THE POSSIBIILITY OF PHYSICAL INJURY AND/OR DEATH. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. WE ARE NOT RESPONSIBLE FOR ANY HEALTH PROBLEMS THAT MAY RESULT FROM USING OUR PRODUCTS, TRAINING PROGRAMS, OR INDEPENDENT COACHES. IF YOU ENGAGE IN ANY PROGRAM AT THE RECOMMENDATION OF YOUR COACH, YOU AGREE THAT YOU DO SO AT YOUR OWN RISK AND ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES.
INDEPENDENT COACHES ON PASSION PHYSIQUE ARE NOT ALLOWED TO TREAT, CURE OR DIAGNOSE MEDICAL CONDITIONS. THEY DO NOT PROVIDE MEDICAL CARE AND ARE NOT PARTICPATING IN A MEDICAL CARE PROVIDER CAPACITY. YOU SHOULD NOT CHANGE YOUR TREATMENT, MEDICAL OR THERAPY PLAN BASED ON INFORMATION YOU RECEIVED THROUGH YOUR INDEPENDENT COACH. CONSULTATIONS WITH COACHES SHOULD NOT REPLACE YOUR REGULAR MEDICAL VISITS WITH YOUR HEALTH CARE PROVIDER. INFORMATION OFFERED BY YOUR COACH IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A RECOMMENDATION FOR ANY TREATMENT, DIAGNOSIS OR ENDORSEMENT OF ANY DRUG. INFORMATION OR ADVICE FROM YOUR COACH IS NO WAY INTENDED TO CREATE A PHYSICIAN-PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW.
- DISCLAIMERS OF WARRANTIES
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES: THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THIS SYSTEM APPLICATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER PASSION PHYSIQUE, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THIS SYSTEM APPLICATION OR ANY FUNCTION CONTAINED IN THIS SYSTEM APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SYSTEM APPLICATION OR THE SERVERS THAT MAKE THIS SYSTEM APPLICATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SYSTEM APPLICATION IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL. NEITHER PASSION PHYSIQUE, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THIS SYSTEM APPLICATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THIS SYSTEM APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
- LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, BODYILY INJURY OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THIS SYSTEM APPLICATION; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THIS SYSTEM APPLICATION OR ANY SYSTEM APPLICATION OR SYSTEM APPLICATIONS LINKED TO THIS SYSTEM APPLICATION, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THIS SYSTEM APPLICATION; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SYSTEM APPLICATION; (F) ANY OTHER MATTER RELATING TO OUR SYSTEM APPLICATION; OR (G) USE OF NUTRITION SUPPLEMENTS OR PRODUCTS. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SYSTEM APPLICATION OR USING OUR NUTRITIONAL PRODUCTS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SYSTEM APPLICATION OR NUTRITION PRODUCTS, OR WITH ANY OF THESE TERMS & CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THIS SYSTEM APPLICATION. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend Passion Physique and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) arising from your improper use of this System Application or our products or offerings, your violation of these Terms & Conditions, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
- ARBITRATION AND GOVERNING LAW
The exclusive means of resolving any dispute between you and Passion Physique or any claim made by you or Passion Physique arising out of or relating to your use of Passion Physique’s services (including any alleged breach of these Terms and Conditions) shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Passion Physique in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Passion Physique any class action, class arbitration, or other representative action or proceeding.
- *NOTICE OF RIGHTS*
By using Passion Physique services or products in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Passion Physique (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures.
Any proceeding to enforce this arbitration provision, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration provision is for any reason held to be unenforceable, any litigation against Passion Physique (except for small-claims court actions) may be commenced only in the federal or state courts located in Denver, Colorado. You hereby irrevocably consent to the jurisdiction of those courts for such purposes
These Terms and Conditions, and any dispute between you and Passion Physique, shall be governed by the laws of the state of Colorado without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
- MISCELLANEOUS TERMS
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms & Conditions, together with the Subscription Agreement (if applicable), are the entire agreement between you and us relating to the subject matter herein. If you are a subscriber to one of our online subscription offerings or products, in the event of any conflict between these Terms & Conditions and the Subscription Agreement, the Subscription Agreement shall control. These Terms & Conditions may be modified only by our posting of changes to these Terms & Conditions on this System Application, or by written agreement of both parties. Each time you access this System Application, you will be deemed to have accepted any such changes. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
If any provision of these Terms or a part thereof, shall be unlawful, void or for any reason unenforceable, then that provision or part thereof shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions or parts thereof.
The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Passion Physique may assign these Terms to any person or entity at any time, for any reason, with or without notice to you.
These Terms may not be amended unless in a signed writing by the Chief Executive Officer of Passion Physique. These Terms constitute the final, exclusive and complete agreement between you and Passion Physique regarding the subject matter hereof and supersede all agreements, communications and course of dealings between you and Passion Physique.