These terms and conditions outline the rules and regulations for the use of Street-Smart Fitness Co.’s mobile fitness app, MuscleMode.
Your access and use of Muscle Mode mobile app constitute your agreement to be bound by these Terms of Service (the “Terms”), which establishes a legally binding contractual relationship between you and the Company. For this reason, PLEASE READ THE TERMS CAREFULLY BEFORE USING THE SERVICE. If you do not agree with all of these Terms, then you are expressly prohibited from using Muscle Mode mobile app and you must discontinue use immediately.
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and any or all Agreements: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions. “The Company”, “Ourselves”, “We”, “Our” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing law of. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.
1. LEGALLY BINDING AGREEMENT; AMENDMENTS
1.1.It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Service after the date such revised Terms are posted.
1.2.Supplemental terms, policies or documents that may be posted at the Service from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason.
1.3.Any translation from English version is provided for your convenience only. In the event of any difference in meaning or interpretation between the English language version of these Terms available at https://musclemode.com/privacy-policy and any translation, the English language version will prevail. The original English text shall be the sole legally binding version.
1.4. We will alert you about any changes by updating the “Last updated” date of these Terms and you waive any right to receive specific notice of each such change.
1.5. It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Service after the date such revised Terms are posted.
2. DISCLAIMERS
2.1. The Company Does Not Offer Or Provide Any Kind Of Medical Advice, Health Insurance Or Other Healthcare Service, Including Without Limitation, Any Counseling, Testing, Evaluation, Prescription, Procedure Or Therapy Related To Exercise, Nutrition, Weight Loss Or Wellness Or Related To The Avoidance, Prevention, Diagnosis Or Treatment Of Any Injury, Illness, Disease Or Condition (Collectively, “healthcare Services”).
2.2. Muscle Mode May Not Be Appropriate For All Persons And Is Not A Substitute For Professional Healthcare Services. The Service Is Intended Only As A Tool, Which May Be Useful In Achieving Your Overall Health And Fitness Goals. You Acknowledge That Your Exercise Activities Involve Risks, Which May Involve Risk Of Bodily Injury Or Death, And That You Assume Those Risks. Before Accessing Or Using The Service, And Agree To Release And Discharge The Company From Any And All Action, Known Or Unknown, Arising Out Of Your Use Of The Service.
2.3. You Should Consult With Your Physician Or Other Qualified Healthcare Professional To Determine Whether The Service Would Be Safe And Effective For You. You Are Expressly Prohibited From Accessing Or Using The Service Against Medical Advice Or If Doing So Might Pose Any Health Risk. In This Context, You Acknowledge That You Take Full Responsibility For Your Health, Life And Well-being, As Well As The Health, Lives And Well-being Of Your Family And Children (Born And Unborn, As Applicable), And All Decisions Now Or In The Future.
2.4.To The Maximum Extent Permitted By Applicable Law, You Expressly Agree That We Are Not Providing Medical Advice Via The Service. All Content Provided Through The Service, Whether Provided By Us Or Third Parties (Even If They Are Claiming To Be A Doctor) Is Not Intended To Be And Should Not Be Used In Place Of (I) The Advice Of Your Physician Or Other Professionals, (Ii) A Visit, Call Or Consultation With Your Physician Or Other Medical Professionals, Or (Iii) Information Contained On Or In Any Product Packaging Or Label. We Are Not Responsible For Any Health Problems That May Result From Training Programs, Consultations, Products, Or Events You Learn About Through The Service.
Should You Have Any Health-related Questions, Please Call Or See Your Physician Or Other Healthcare Provider Promptly. If You Have An Emergency, Call Your Physician Or Your Local Emergency Services Immediately.
2.5. Your Use Of The Service Does Not Constitute Or Create A Doctor-patient, Therapist-patient Or Other Healthcare Professional Relationship Between You And The Company.
2.6. The Company Does Not Assume Any Liability For Inaccuracies Or Misstatements About Food Recipes, Exercices Or Other Content On Muscle Mode. You Should Carefully Read All Information Provided By The Manufacturers Of The Food Products, Whether Online Or On The Actual Product Packaging And Labels, Including Nutrient Content, Ingredients, Food Allergen And Contact Information, And Health Claims, Before Using Or Consuming A Product. For Additional Information About A Food Product, Please Contact The Manufacturer Directly.
2.7. We Make No Guarantees Concerning The Level Of Success You May Experience, And You Accept The Risk That Results Will Differ For Each Individual. The Testimonials And Examples That May Be Provided On The Service Are Exceptional Results, Which Do Not Apply To An Average Person, And Are Not Intended To Represent Or Guarantee That Anyone Will Achieve The Same Or Similar Results. There Is No Assurance That Examples Of Past Fitness Results Can Be Duplicated In The Future. We Cannot Guarantee Your Future Results And/or Success. Nor Can We Guarantee That You Maintain The Results You Experience If You Do Not Continue Following Our Programs.
2.8. Each Individual’s Health, Fitness, And Nutrition Success Depends On His Or Her Background, Dedication, Desire, And Motivation. As With Any Health-related Service, Your Results May Vary, And Will Be Based On Many Variables, Including But Not Limited To, Your Individual Capacity, Life Experience, Unique Health And Genetic Profile, Starting Point, Expertise, And Level Of Commitment. The Use Of The Service Should Be Based On Your Own Due Diligence And You Agree That The Company Is Not Liable For Any Success Or Failure Of Your Physique That Is Directly Or Indirectly Related To The Purchase And Use Of The Service.
2.9. In Addition To All Other Limitations And Disclaimers In These Terms, The Company Disclaims Any Liability Or Loss In Connection With The Content Provided On The Service. You Are Encouraged To Consult With Your Doctor And Other Relevant Professionals With Regard To The Information Contained On Or Accessed Through The Service.
3. USE OF SERVICE; AGE RESTRICTIONS
3.1. In order to use Muscle Mode, you must provide certain information about yourself.
3.2. If you use Muscle Mode, you represent and warrant to the Company that: (i) all required information you submit is truthful and accurate; (ii) your use of Muscle Mode does not violate any applicable law or regulation or these Terms. Otherwise, the Service may not operate correctly, and we may not be able to contact you with important notices.
3.3. Muscle Mode is not intended to be used by individuals under the age of 16. You hereby represent and warrant to the Company that you meet the foregoing qualification. All users who are minors in the jurisdiction in which they reside (generally under the age of 16) must have the permission of, and be directly supervised by, their parent or guardian to use Muscle Mode. If you are a minor, you must have your parent or guardian read and agree to these Terms prior to you using the Service.
3.4. The Company reserves the right to suspend or terminate your use of Service, or your access to Muscle Mode, with or without notice to you, in the event that you breach these Terms.
3.5. By using Muscle Mode, you agree to receive certain communications, such updates on the Service or a periodic e-mail newsletter from the Company. You can opt-out of non-essential communications by unsubscribing from the email notification.
3.6. Muscle Mode may be modified, updated, interrupted or suspended at any time without notice to you or our liability.
5. USER REPRESENTATIONS
5.1. By using Muscle Mode, you represent and warrant that:
5.1.1. You have the legal capacity and you agree to comply with these Terms;
5.1.2. You are of legal age as established by your respective state or country of residence;
5.1.3. You are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use Muscle Mode;
5.1.4. You will not access Muscle Mode through automated or non-human means, whether through a bot, script or otherwise;
5.1.5. You will not use Muscle Mode for any illegal or unauthorized purpose;
5.1.6. 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;
5.1.7. You are not listed on any U.S. government list of prohibited or restricted parties; and
5.1.8. Your use of Muscle Mode will not violate any applicable law or regulation.
5.1.9. You own all rights, including the intellectual property rights, to your User Content, and your User Content does not infringe the intellectual property rights, privacy rights and other legal rights of third parties.
5.2. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to refuse any and all current or future use of the Service (or any portion thereof).
5.3. You may not access or use Muscle Mode for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
5.4. As a user of the Service, you agree not to:
5.4.1. Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
5.4.2. Make any unauthorized use of the Service;
5.4.3. Make any modification, adaptation, improvement, enhancement, translation, or derivative work from/to Muscle Mode;
5.4.4. Use Muscle Mode for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended;
5.4.5. Make Muscle Mode available over a network or other environment permitting access or use by multiple devices or users at the same time;
5.4.6. Use Muscle Mode for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for Muscle Mode’s functions/services;
5.4.7. Use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with Muscle Mode and its services;
5.4.8. Circumvent, disable, or otherwise interfere with security-related features of Muscle Mode;
5.4.9. Engage in unauthorized framing of or linking to Muscle Mode;
5.4.10. interfere with, disrupt, or create an undue burden on Muscle Mode or the networks or services connected to its services;
5.4.11. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of Muscle Mode;
5.4.12. Attempt to bypass any measures of the Service designed to prevent or restrict access to Muscle Mode, or any portion of the Service;
5.4.13. Upload or distribute in any way files that contain viruses, worms, trojans, corrupted files, or any other similar software or programs that may damage the operation of another’s computer;
5.4.14. Use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses Muscle Mode, or using or launching any unauthorized script or other software;
5.4.15. Use Muscle Mode to send automated queries to any website or to send any unsolicited commercial e-mail;
5.4.16. Disparage, tarnish, or otherwise harm, in our opinion, us and/or Muscle Mode;
5.4.17. Use Muscle Mode in a manner inconsistent with any applicable laws or regulations; or
5.4.18. Otherwise infringe these Terms.
6. Mandatory Binding Arbitrationand Class Action Waiver
6.1. Please Read This Arbitration Provision Carefully To Understand Your Rights. Except Where Prohibited By Law, You Agree That Any Claim That You May Have In The Future Must Be Resolved Through Final And Binding Confidential Arbitration. You Acknowledge And Agree That You Are Waiving The Right To A Trial By Jury. The Rights That You Would Have If You Went To Court, Such As Discovery Or The Right To Appeal, May Be More Limited Or May Not Exist.
6.2. You Agree That You May Only Bring A Claim In Your Individual Capacity And Not As A Plaintiff (Lead Or Otherwise) Or Class Member In Any Purported Class Or Representative Proceeding. You Further Agree That The Arbitrator May Not Consolidate Proceedings Or Claims Or Otherwise Preside Over Any Form Of A Representative Or Class Proceeding.
6.3. You And The Company, And Each Of Its Respective Agents, Corporate Parents, Subsidiaries, Affiliates, Predecessors In Interest, Successors, And Assigns, Agree To Arbitration (Except For Matters That May Be Taken To Small Claims Court), As The Exclusive Form Of Dispute Resolution Except As Provided For Below, For All Disputes And Claims Arising Out Of Or Relating To This Agreement, The Service, Or The Privacy Policy, Unless You Are Located In A Jurisdiction That Prohibits The Exclusive Use Of Arbitration For Dispute Resolution.
6.4. Arbitration is more informal way to settle disputes than a lawsuit in court. A neutral arbitrator instead of a judge or jury is used in arbitration, which allows for more limited discovery than in court, and is subject to very limited review by courts. The same damages and relief that a court can award can be awarded by arbitrators. Please see more information about arbitration at http://www.adr.org.
6.5. A party which intends to seek arbitration must first send to the other a written notice of intent to arbitrate (a “Notice”) by an international courier with a tracking mechanism, or, in the absence of a mailing address provided by you to us, via any other method available to us, including via e-mail. The Notice to the Company must be addressed to: 2132 Fenton Pkwy #310 San Diego, CA, United States of America (as applicable, the “Arbitration Notice Address”). The Notice shall (i) describe the basis and nature of the claim or dispute; and (ii) set the specific relief sought (the “Demand”). If you and the Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, then you or we may commence an arbitration proceeding as set forth below or file an individual claim in small claims court.
6.6. The American Arbitration Association (“aaa”) Will Exclusively Administer The Arbitration In Accordance With Its Commercial Arbitration Rules And The Supplementary Procedures For Consumer Related Disputes (The “rules”), As Modified By These Terms.
6.7. If you commence arbitration against us, you are required to provide a second Notice to the Company at the Arbitration Notice Address within seven (7) days of arbitration commencement. The Rules and AAA forms are available online at http://www.adr.org. Unless your Demand is equal to or greater than 1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee, if you are required to pay a filing fee to commence an arbitration against us, then we will promptly reimburse you for your confirmed payment of the filing fee upon our receipt of the second Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee.
6.8. The arbitration shall be conducted exclusively in English. A single, independent and impartial arbitrator with his or her primary place of business in Alexandria, Virginia (if you are from the United States) or in Limassol, Republic of Cyprus (if you are not from the United States) will be appointed pursuant to the Rules, as modified herein. You and the Company agree to comply with the following rules, which are intended to streamline the arbitration process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
6.9.To The Fullest Extent Permitted Under Law, You And The Company Agree That You And The Company May Bring Claims Against The Other Only In Your Or Its Individual Capacity And Not As A Plaintiff Or Class Member In Any Purported Class, Representative, Or Consolidated Proceeding. Further, You Agree That The Arbitrator May Not Consolidate Proceedings Of More Than One Person’s Claims, And May Not Otherwise Preside Over Any Form Of A Representative Or Class Proceeding, And That If This Specific Provision Is Found To Be Unenforceable, Then The Entirety Of This Mandatory Arbitration Section Will Be Null And Void.
6.10. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration clause can be enforced against a non-party to this agreement and whether a non-party to these Terms can enforce its provision against you or us.
6.11. Barring extraordinary circumstances, the arbitrator will issue his or her final, confidential decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days upon a showing of good cause and in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the Commonwealth of Virginia without regard to its conflicts of laws principles in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act (“FAA”) will govern the interpretation, enforcement, and proceedings pursuant to this Section 11. Any award rendered shall be final, subject to appeal under the FAA.
6.12. The abovestated provisions of this Section 11 shall not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, patents, or other intellectual property. For the avoidance of doubt, you agree that, in the event the Company or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against us, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
6.13. You and we agree that, notwithstanding any other rights a party may have at law or in equity, any claim arising out of or related to these Terms (including the Privacy Policy) or the Service, excluding a claim for indemnification, must be initiated with the AAA or filed in small claims court in Alexandria, Virginia within one (1) year after the claim accrues. Otherwise, such cause of action is permanently and forever barred. This one (1) year period includes the thirty (30) day pre-dispute procedure set forth in sub-clause 13.5 above.
6.14. All claims you bring against the Company must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, the Company may recover attorneys’ fees and reimbursement of its costs, provided that the Company has notified you in writing of the improperly filed claim, and you fail to promptly withdraw such claim.
6.15. In the event that we make any material change to this arbitration provision (other than a change to our Arbitration Notice Address), you may reject any such change by sending us written notice to our Arbitration Notice Address within thirty (30) days of the change, in which case your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
6.16. If only Section 11.9 above or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to this Agreement.
6.17. You Understand That You Would Have Had A Right To Litigate Through A Court, To Have A Judge Or Jury Decide Your Case, And To Be Party To A Class Or Representative Action. However, You Understand And Agree To Have Any Claims Decided Individually And Only Through Binding, Final, And Confidential Arbitration.
6.18. You Have The Right To Opt-out Of This Arbitration Provision Within Thirty (30) Days From The Date That You First Use, Or Attempt To Use, The Service By Writing To [email protected] Or To The Arbitration Notice Address. For Your Opt-out To Be Effective, You Must Submit A Signed Written Notice Opting Out And Containing Enough Details About You For Us To Be Able To Identify You Within Thirty (30) Days. If More Than Thirty (30) Days Have Passed, You Are Not Eligible To Opt Out Of This Provision And You Must Pursue Your Claim Through Binding Arbitration As Set Forth In This Agreement.
7. TERM AND TERMINATION
7.1. These Terms Shall Remain In Full Force And Effect While You Use The Service. Without Limiting Any Other Provision Of These Terms, We Reserve The Right To, In Our Sole Discretion And Without Notice Or Liability, Deny Access To And Use Of The Service (Including Blocking Certain Ip Addresses), To Any Person For Any Reason Or For No Reason, Including Without Limitation For Breach Of Any Representation, Warranty, Or Covenant Contained In These Terms Or Of Any Applicable Law Or Regulation. We May Terminate Your Use Or Participation In The Service, Without Warning, In Our Sole Discretion.
7.2. In addition, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress re your activities during the time you used the Service for which you may be held liable, even after any expiration or termination of these Terms within the limitation period in applicable laws.
8. PAYMENTS AND REFUNDS
8.1. Certain features of the Service may be offered for a fee. You can make a purchase directly from the Company or through an App Store (the “Purchase”).
8.2. To the maximum extent permitted by applicable laws, we may change Purchase fees at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on the Service or by sending you an email notification.
8.3. You authorize us and the App Stores to charge the applicable fees to the payment method that you submit.
8.4. Our Service may offer subscriptions that automatically renew. Unless you cancel your subscription before the end of the subscription period, you authorize us to charge you for the renewal term. The terms of autorenewal and cancellation procedure will be disclosed to you on the Service.
8.5. Our Service may offer trial subscriptions that provide access to the Service for a limited period of time and auto renew unless you cancel before the end of the trial period. The terms of the autorenewal and cancellation procedure will be disclosed to you on the Service.
8.6. We reserve the right, in our absolute discretion, to modify or terminate any trial offer, your access to the Service during the trial, or any of these terms without notice and with no liability. We reserve the right to limit your ability to take advantage of multiple trials.
8.7. Purchase within the Service can be performed by using any acceptable payment method accepted by the Service.
8.8. Purchases made via an App Store are subject to such App Store’s refund policies. This means when a Purchase is made through an App Store, we cannot grant refunds. You will have to contact an App Store support.
8.9. To The Extent Permitted By Applicable Law, Purchases Made Via Our Website Are Non-refundable And/or Non-exchangeable, Unless Otherwise Is Stated Herein Or Is Required By Applicable Law. Note For The Eu Residents: If You Are An Eu Resident, You Have The Right To Withdraw From Agreement For Purchase Of Digital Content Without Charge And Without Giving Any Reason Within Fourteen (14) Days From The Date Of Such Agreement Conclusion. The Withdrawal Right Does Not Apply If The Performance Of The Agreement Has Begun With Your Prior Express Consent And Your Acknowledgment That You Thereby Lose Your Right Of Withdrawal. You Hereby Expressly Consent To The Immediate Performance Of The Agreement And Acknowledge That You Will Lose Your Right Of Withdrawal From The Agreement Once Our Servers Validate Your Purchase And The Applicable Purchase Is Successfully Delivered To You. Therefore, You Will Not Be Eligible To A Refund, Unless The Digital Content Is Defective.
9. Fitness and Wellness Activities and Dietary Guidance
It’s important to us that users stay healthy while achieving their fitness and wellness goals. Please be responsible and use your best judgment and common sense. We provide our Services for information purposes only, and can’t be held liable if you suffer an injury or experience a health condition. In particular, while most of the content posted by the other users in our community is helpful, it is coming from strangers on the Internet and should never trump good judgment or actual medical advice.
9.1 Safety First
Muscle Mode cares about your safety. You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any fitness or wellness regimen-oriented Content or any dietary program-oriented Content (“Programs”). By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in the Programs, or any of the related activities made available to you in connection with the Services. Further, you agree, represent and warrant that you have consulted with your physician before making any exercise/training/dietary changes based upon information available through the Services. Everyone’s condition and abilities are different and participating in the Programs and other activities promoted by our Services is at your own risk. If you choose to participate in the Programs and these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. The Programs and other activities promoted by the Services may pose risks even to those who are currently in good health.
You expressly agree that your athletic activities, which may generate the User-Generated Content you post or seek to post on or via the Services (e.g., workouts exercises, etc.) carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities.
Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injury, illness, or damages sustained from your use of, or inability to use, any Services or features of the Services, including any Content or activities you access or learn about through our Services even if caused in whole or part by the action, inaction or negligence of Muscle Mode or others.
9.2. Not Medical Advice
Any and all services provided by, in and/or through the Services (including but not limited to Content) are for informational purposes only. Muscle Mode is not a medical professional, and Muscle Mode does not provide medical services or render medical advice. Nothing contained in the Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a health condition or illness. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND MUSCLE MODE.
You should seek the advice of a physician or a medical professional with any questions you may have regarding your health before beginning any dietary programs or plans, exercise regimen or any other fitness or wellness activities or plans that may be referenced, discussed or offered under the Services. If you are being treated for a health condition or illness, taking prescription medication or following a therapeutic diet to treat a disease, you should consult with your physician before using the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purpose of seeking medical attention. You further agree that, before using the Services, you will consult your physician, particularly if you are at risk for problems resulting from exercise or changes in your diet. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you should follow the advice of your physician.
The Premium Services provide you access to certain specialized Content—namely coaching and guidance on resistance training regimens (“Plans”). The Plans are not a medical or any other type of health service. No diagnosis or treatment of, or advice regarding, any dietary or health condition is delivered by the Plans. The Plans are not a substitute for, and are not an alternative to healthcare diagnosis and treatment when a dietary or health condition or illness is present. You should seek diagnosis, treatment and advice regarding dietary or health conditions or illnesses from physicians practicing medicine and other licensed healthcare professionals. Under no circumstances will any of your interactions with our Plans be deemed or construed to create a physician-patient relationship or a fiduciary duty of any kind whatsoever. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH THE PLANS.
9.3. Success Stories Not Typical
Success stories posted by users of Muscle Mode or our Services may not represent typical or even accurate results obtained from any particular fitness activity or diet. To the extent permitted by applicable law, Muscle Mode and the Company has no and assumes no obligation or liability associated with the accuracy, reliability or effectiveness of any fitness activity or dietary recommendation contained in any user success stories.
If you are a resident of New Jersey or the Netherlands:
Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by Muscle Mode’s own fraud, recklessness, gross negligence or willful misconduct.
10. MODIFICATIONS AND INTERRUPTIONS
10.1. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Service at any time or for any reason without notice to you.
10.2. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Service.
10.3. We cannot guarantee the Service will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Service, resulting in interruptions, delays, or errors.
10.4. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Service during any downtime or discontinuance of the Service.
10.5. Nothing in these Terms will be construed to obligate us to maintain and support the Service or to supply any corrections, updates, or releases in connection therewith.
11. INDEMNIFICATION
11.1. You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, contractors and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Service; (2) breach of these Terms; (3) any breach of your representations and warranties set forth in these Terms; or (4) your violation of the rights of a third party, including but not limited to intellectual property rights.
11.2. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
12. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
12.1. Using the Service, sending us emails, and completing online forms constitute electronic communications, you consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and at the Service, satisfy any legal requirement that such communication be in writing.
12.2. You Hereby Agree To The Use Of Electronic Signatures, Contracts, Orders, And Other Records, And To Electronic Delivery Of Notices, Policies, And Records Of Transactions Initiated Or Completed By Us Or Via The Service.
12.3. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
13. MISCELLANEOUS
13.1. These Terms and any policies or operating rules posted by us at the Service constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.
13.2. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Service.
13.3. We may transfer or assign any and all of its rights and obligations under these Terms to any other person, by any way, including by novation, and by accepting these Terms you give us consent to any such assignment and transfer. You confirm that placing on the Service of a version of these Terms indicating another person as a party to the Terms shall constitute valid notice to you of the transfer of our rights and obligations under the Terms (unless otherwise is expressly indicated).
13.4. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
14. CONTACT DETAILS
If you want to send any notice under these Terms or have any questions regarding the Service, you may contact us at: [email protected].
