Last Updated: May 27, 2021
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE "INITIAL TERM"), THEN THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT BE YOUR BEST’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 9.4 BELOW.
PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 17 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
Your use of the Services is also subject to any additional terms, conditions, rules, and policies that we separately post on the Services ("Supplemental Terms"), which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement. Supplemental Terms will be applied generally in a non-discriminatory manner to all users of the Services, and may include, for example, required or automated updates, modifications, and/or reinstallations of the Services and obtaining available patches to address security, interoperability or performance issues.
Subject to Section 17.9 of this Agreement, Be Your Best reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. USE OF THE SERVICES AND BE YOUR BEST PROPERTIES. The Application, the Website, the Services and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a "Be Your Best Property" and collectively, the "Be Your Best Properties") are protected by copyright laws throughout the world and may be owned by the Company or third parties. You agree not to make any use of the Be Your Best Properties that would infringe the copyright therein. Subject to the Agreement, Be Your Best grants you a limited license to reproduce obtain, listen to, view or read (as the case may be) portions of Be Your Best Properties that may be obtained by you in digital form for the sole purpose of using the Services for your personal, non-commercial entertainment purposes. Unless otherwise specified by Be Your Best in a separate license, your right to use any and all Be Your Best Properties is subject to the Agreement and applicable copyright law. You represent, warrant and agree that you are using the Be Your Best Properties for your own personal, non-commercial entertainment use and not for redistribution or transfer of any kind.
1.1 Application License. Subject to your compliance with the Agreement, Be Your Best grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a device that you own or control and to run such copy of the Application solely for your own personal, non-commercial entertainment purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a "Google Play Sourced Application"), Oculus Store or any other store where virtual reality products are sold (a "Virtual Reality Store Sourced Application"), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.2 Updates. You understand that Be Your Best Properties are evolving. As a result, Be Your Best may require you to accept updates to Be Your Best Properties that you have installed on your computer or mobile device. You acknowledge and agree that Be Your Best may update Be Your Best Properties with or without notifying you. You may need to update third-party software from time to time in order to use Be Your Best Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, broadcast, publicly perform or display, host or otherwise commercially exploit Be Your Best Properties or any portion of Be Your Best Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Be Your Best Properties (including images, text, page layout or form) of Be Your Best; (c) you shall not use any metatags or other "hidden text" using Be Your Best’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Be Your Best Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Be Your Best Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Be Your Best Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Be Your Best Properties or otherwise attempt to modify any Be Your Best Properties for any reason whatsoever, including for the purpose of disguising or changing any indications of the ownership or source of the applicable Be Your Best Property. Any future release, update or other addition to Be Your Best Properties shall be subject to the Agreement. Be Your Best, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Be Your Best Property terminates the licenses granted by Be Your Best pursuant to the Agreement.
1.4 Third-Party Materials. As a part of Be Your Best Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Be Your Best to monitor such materials and that you access these materials at your own risk.
2.1. Registering Your Account. In order to access certain features of Be Your Best Properties you may be required to become a Registered User. For purposes of the Agreement, a "Registered User" is a User who has a valid account on either Facebook or Apple through which the User has connected to the Application (each such account, a "Third-Party Account"), or has an account with the provider of the Application for the User’s mobile device.
2.2 Access Through Facebook or Apple. If you access the Be Your Best Properties through Facebook or Apple as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Be Your Best to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account log-in information to Be Your Best and/or grant Be Your Best access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Be Your Best to pay any fees or making Be Your Best subject to any usage limitations imposed by such third-party service providers. By granting Be Your Best access to any Third-Party Accounts, you understand that Be Your Best may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Be Your Best Properties (collectively, "Content") that you have provided to and stored in your Third-Party Account ("Third-Party Account Content") so that it is available on and through Be Your Best Properties via your Account. Unless otherwise specified in the Agreement, all Third-Party Account Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Be Your Best Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Be Your Best’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through Be Your Best Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND BE YOUR BEST DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Be Your Best makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Be Your Best is not responsible for any Third-Party Account Content.
2.3 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least eighteen (18) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Be Your Best Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Be Your Best Properties by minors. However, if you conclude that the Services are appropriate for your teenage child, you may exercise your judgment to allow your teenage child to use the Services under your close supervision; provided that you will remain responsible for any such use by your teenage child. You may not share your Account or password with anyone, and you agree to (y) notify Be Your Best immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Be Your Best has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Be Your Best has the right to suspend or terminate your Account and refuse any and all current or future use of Be Your Best Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Be Your Best reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Be Your Best Properties if you have been previously removed by Be Your Best, or if you have been previously banned from any of Be Your Best Properties.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Be Your Best.
2.5 Necessary Equipment. Unless the Services are purchased in conjunction with a bundle that includes an Oculus or other virtual reality headset, you must provide all equipment necessary to connect to Be Your Best Properties, including but not limited to, a mobile device and/or a headset that is suitable to connect with and use Be Your Best Properties, in cases where the Services offer a mobile component. You are solely responsible for: (i) any fees, including Internet connection or mobile fees, that you incur when accessing Be Your Best Properties; and (ii) reading and following any and all instructions provided by Oculus, available at https://www.oculus.com/legal/health-and-safety-warnings, or provider of other virtual reality headset, prior to connecting to Be Your Best Properties and using the Services. The headset is not a toy and should not be used by children under the age of 13. Adults should make sure children (age 13 and older) use the headset in accordance with the above instructions provided by Oculus, and should monitor children (age 13 and older) who are using or have used the headset to participate in the Services. Be Your Best has no responsibility or liability to you related to the functionality of any virtual reality headset provided by a third party (e.g., Be Your Best is not responsible for any malfunction of or physical damage to such a device as the result of perspiration or any moisture that might affect how the device works, or for any other reason).
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including Be Your Best Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Be Your Best, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through Be Your Best Properties ("Your Content"), and that you and other Users of Be Your Best Properties, and not Be Your Best, are similarly responsible for all Content that you and they Make Available through Be Your Best Properties ("User Content").
3.2 No Obligation to Pre-Screen Content. You acknowledge that Be Your Best has no obligation to pre-screen Content (including, but not limited to, User Content), although Be Your Best reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Be Your Best pre-screens, refuses or removes any Content, you acknowledge that Be Your Best will do so for Be Your Best’s benefit, not yours. Without limiting the foregoing, Be Your Best shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Be Your Best in writing elsewhere, Be Your Best has no obligation to store any of Your Content that you Make Available on Be Your Best Properties. Be Your Best has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Be Your Best Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Be Your Best retains the right to create reasonable limits on Be Your Best’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Be Your Best in its sole discretion.
4.1 Be Your Best Properties. Except with respect to Your Content and User Content, you agree that Be Your Best and its suppliers own all rights, title and interest in Be Your Best Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Be Your Best Properties.
and all related graphics, logos, service marks and trade names used on or in connection with any Be Your Best Properties or in connection with the Services are the trademarks of Be Your Best and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Be Your Best Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Be Your Best Properties.
4.4 Your Content. Be Your Best does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Be Your Best Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Be Your Best a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Be Your Best Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of Be Your Best Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Be Your Best, are responsible for all of Your Content that you Make Available on or in Be Your Best Properties.
4.6 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Be Your Best in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Be Your Best through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Be Your Best has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Be Your Best a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Be Your Best Properties and/or Be Your Best’s business.
5. USER CONDUCT.
5.1 General. In connection with your use of Be Your Best Properties, you shall not:
a) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
b) Harm minors in any way;
c) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d)Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
e)Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
f)Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
g) Stalk or otherwise harass any other user of our Be Your Best Properties; or
h) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
5.2 Ratings and Reviews. The Services may allow users to post reviews, ratings and comments about the Website and/or Application (collectively, "Reviews"), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are User Content that is not endorsed by Be Your Best and does not represent the views of Be Your Best. You acknowledge that any opinions, statements, recommendations, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Be Your Best shall have the right, but not the obligation to monitor or review any Reviews at any time. Be Your Best reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Be Your Best is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Be Your Best does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Service; (ii) you will not provide a rating or review for any Service with respect to which you have an employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If Be Your Best determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
6.INVESTIGATIONS. Be Your Best may, but is not obligated to, monitor or review Be Your Best Properties and Content at any time. Without limiting the foregoing, Be Your Best shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Be Your Best does not generally monitor user activity occurring in connection with Be Your Best Properties or Content, if Be Your Best becomes aware of any possible violations by you of any provision of the Agreement, Be Your Best reserves the right to investigate such violations, and Be Your Best may, at its sole discretion, immediately terminate your license to use Be Your Best Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7:INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Be Your Best reserves the right, but has no obligation, to intercede in such disputes. You agree that Be Your Best will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Be Your Best Properties may contain User Content provided by other Users. Be Your Best is not responsible for and does not control User Content. Be Your Best has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8.1 Third-Party Websites and Applications. Be Your Best Properties may contain links to third-party websites ("Third-Party Websites") and applications ("Third-Party Applications"). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Be Your Best Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Be Your Best. Be Your Best is not responsible for any Third-Party Websites or Third-Party Applications. Be Your Best provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website or Application, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., Apple App Store, Google Play, Oculus Store or any other virtual reality app stores (each, an "App Store"). You acknowledge that the Agreement is between you and Be Your Best and not with the App Store. Be Your Best, not the App Store, is solely responsible for Be Your Best Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Be Your Best Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Be Your Best Property, including the Application. You acknowledge that the App Store (and its subsidiaries), as well as all third-party owners of Be Your Best Properties and Content, are third-party beneficiaries of the Agreement and will have the right to enforce it.
9.FEES AND PURCHASE TERMS.
9.1 Payment. If you subscribe to any Service or make any other purchases within the Application (individually, an "In-App Purchase" and collectively, "In-App Purchases"), you acknowledge and agree: (a) to pay all fees or charges associated with such In-App Purchases in accordance with any and all applicable terms whether imposed by Be Your Best or the App Store at the time a fee or charge is due and payable; (b) to provide accurate, current and complete payment information in connection with such In-App Purchases; (c) that Be Your Best may retain any such payment information, including, but not limited to all debit and credit card information provided in connection with any In-App Purchase; and (d) that you will be charged for all fees and charges due and payable for any In-App Purchases hereunder and that no additional notice or consent is required to use the payment information you provide. You agree to keep your payment information up to date. Be Your Best accepts certain credit cards as well as other forms of cash payment (e.g., PayPal) that are accepted by the App Store as payment methods for In-App Purchases.
9.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a "Service Subscription Fee") at the time you create your Account and select your monthly or annual subscription package (each, a "Service Commencement Date"). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Be Your Best for the Services until Be Your Best accepts your order by a confirmatory e-mail or other appropriate means of communication.
9.3 Taxes. Be Your Best’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Be Your Best, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Be Your Best for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, "Sales Tax" shall mean any sales or use tax, and any other tax measured by sales proceeds, that Be Your Best is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a "Renewal Commencement Date") and continue for an additional equivalent period, at Be Your Best’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription before your Renewal Commencement Date. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Be Your Best at email@example.com or login and navigate to "Account Management" from the “Account” tab in the main menu. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Upon renewal of your subscription, if Be Your Best does not receive payment from your payment provider through the App Store or Stripe as described herein, you agree that Be Your Best may either terminate or suspend your subscription, and continue to attempt to charge your payment provider until payment is received (upon receipt of payment through the App Store, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.5 Free Trials and Other Promotions. Any free trial or other promotion that provides a Registered User access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Be Your Best to have the charges reversed.
10. INDEMNIFICATION. You agree to indemnify and hold Be Your Best, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "Be Your Best Party" and collectively, the "Be Your Best Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Be Your Best Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Be Your Best reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Be Your Best in asserting any available defenses. This provision does not require you to indemnify any of the Be Your Best Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Be Your Best Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF BE YOUR BEST PROPERTIES IS AT YOUR SOLE RISK, AND BE YOUR BEST PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. BE YOUR BEST PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
a) BE YOUR BEST PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) BE YOUR BEST PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF BE YOUR BEST PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF BE YOUR BEST PROPERTIES WILL BE ACCURATE OR RELIABLE.
b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH BE YOUR BEST PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS BE YOUR BEST PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. BE YOUR BEST MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
d)NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BE YOUR BEST OR THROUGH BE YOUR BEST PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
e) FROM TIME TO TIME, BE YOUR BEST MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT BE YOUR BEST’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 Professional Advice Disclaimer. BE YOUR BEST OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN OR VIA THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE WEBSITE OR APPLICATION. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.NOTHING STATED OR POSTED ON THE WEBSITE, APPLICATION OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. BE YOUR BEST IS CONTINUALLY UNDER DEVELOPMENT AND BE YOUR BEST MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS ON THE WEBSITE OR APPLICATION. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE BE YOUR BEST PROPERTIES WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
11.3 Medical Disclaimer. IN SUBSCRIBING TO OR OTHERWISE USING BE YOUR BEST, YOU AFFIRM THAT EITHER YOUR PHYSICIAN HAS APPROVED YOUR USE OF THE SERVICES OR THAT ALL OF THE FOLLOWING STATEMENTS ARE TRUE: (I) NO PHYSICIAN HAS EVER INFORMED YOU THAT YOU HAVE A HEART CONDITION OR THAT YOU SHOULD ONLY DO PHYSICAL ACTIVITIES RECOMMENDED BY A PHYSICIAN; (II) YOU HAVE NEVER FELT CHEST PAIN WHEN ENGAGING IN PHYSICAL ACTIVITY; (III) YOU HAVE NOT EXPERIENCED CHEST PAIN WHEN NOT ENGAGED IN PHYSICAL ACTIVITY AT ANY TIME BE YOUR BEST THE PAST MONTH; (IV) YOU HAVE NEVER LOST YOUR BALANCE BECAUSE OF DIZZINESS AND YOU HAVE NEVER LOST CONSCIOUSNESS AS A RESULT OF EXERTION; (V) YOU DO NOT HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN YOUR PHYSICAL ACTIVITY; (VI) YOUR PHYSICIAN IS NOT CURRENTLY PRESCRIBING DRUGS FOR YOUR BLOOD PRESSURE OR HEART CONDITION; (VII) YOU DO NOT HAVE A HISTORY OF HIGH BLOOD PRESSURE; AND (VIII) YOU DO NOT KNOW OF ANY OTHER REASON YOU SHOULD NOT EXERCISE.
11.4 Play Space Environment Disclaimer. ALWAYS BE AWARE OF YOUR SURROUNDINGS BEFORE BEGINNING USE AND WHILE USING YOUR HEADSET. IN USING BE YOUR BEST, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR CREATING AND MAINTAINING A SAFE ENVIRONMENT FOR USE AT ALL TIMES. BECAUSE SERIOUS INJURIES MAY OCCUR FROM TRIPPING OR RUNNING INTO OR STRIKING WALLS, FURNITURE, OTHER OBJECTS OR PEOPLE, CLEAR AN AREA FOR SAFE USE BEFORE USING YOUR HEADSET. PLEASE TAKE SPECIAL CARE TO ENSURE THAT YOU ARE NOT NEAR ITEMS THAT YOU MAY HIT OR STRIKE, OR AREAS WHICH MAY CAUSE YOU TO LOSE YOUR BALANCE WHEN USING, OR IMMEDIATELY AFTER USING, YOUR HEADSET, LIKE OTHER PEOPLE, OBJECTS, STAIRS OR STEPS, RAMPS, SIDEWALKS, BALCONIES, OPEN DOORWAYS, WINDOWS, FURNITURE, OPEN FLAMES, CEILING FANS OR LIGHT FIXTURES, TELEVISIONS OR MONITORS OR OTHER THINGS. TAKE APPROPRIATE STEPS TO PREVENT PEOPLE OR PETS WHO DO NOT UNDERSTAND YOUR PERCEPTIONS ARE LIMITED FROM ENTERING YOUR PLAY SPACE.
11.5 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT BE YOUR BEST PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BE YOUR BEST PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.6 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF BE YOUR BEST PROPERTIES. YOU UNDERSTAND THAT BE YOUR BEST DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF BE YOUR BEST PROPERTIES.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BE YOUR BEST PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BE YOUR BEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF BE YOUR BEST PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE BE YOUR BEST PROPERTIES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON BE YOUR BEST PROPERTIES; OR (4) ANY OTHER MATTER RELATED TO BE YOUR BEST PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BE YOUR BEST PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BE YOUR BEST PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BE YOUR BEST PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL BE YOUR BEST PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO BE YOUR BEST BY YOU DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) ONE THOUSAND TWO HUNDRED US DOLLARS (U.S. $1200). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BE YOUR BEST PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BE YOUR BEST PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BE YOUR BEST PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BE YOUR BEST AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Be Your Best’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Be Your Best by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Be Your Best Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Be Your Best Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Be Your Best’s Copyright Agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org, Be Your Best, c/o Phil Weiss Law, 510 5th Avenue, Floor 3, New York, New York 10036.
14.1 Violations. If Be Your Best becomes aware of any possible violations by you of the Agreement, Be Your Best reserves the right to investigate such violations. If, as a result of the investigation, Be Your Best believes that criminal activity has occurred, Be Your Best reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Be Your Best is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Be Your Best Properties, including Your Content, in Be Your Best’s possession in connection with your use of Be Your Best Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce this Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Be Your Best, its Users or the public, and all enforcement or other government officials, as Be Your Best in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Be Your Best determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Be Your Best Properties, Be Your Best reserves the right to:
a) Warn you via email (to any e-mail address you have provided to Be Your Best) that you have violated the Agreement.
b)Delete any of Your Content provided by you to Be Your Best Properties.
c)Discontinue your registration(s) with any of Be Your Best Properties;
d) Discontinue your subscription to any Services;
e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
f) Pursue any other action which Be Your Best deems to be appropriate.
15 TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use Be Your Best Properties, unless terminated earlier in accordance with the Agreement.
15.2 Termination of Services by Be Your Best. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Be Your Best is required to do so by law (e.g., where the provision of the Website, the Application or the Services is, or becomes, unlawful), Be Your Best has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Be Your Best’s sole discretion and that Be Your Best shall not be liable to you or any third party for any termination of your Account.
15.3 Termination of Services by You. If you want to terminate the Services provided by Be Your Best, you may do so by (a) notifying Be Your Best at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Be Your Best’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 9.4.
15.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Be Your Best will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. INTERNATIONAL USERS. Be Your Best Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Be Your Best intends to announce such Services or Content in your country. Be Your Best Properties are controlled and offered by Be Your Best from its facilities in Norway. Be Your Best makes no representations that Be Your Best Properties are appropriate or available for use in all locations. Those who access or use Be Your Best Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Be Your Best and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Be Your Best, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Be Your Best may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
17.2 Arbitration Law. The laws of Norway govern the interpretation and enforcement of this Arbitration Agreement.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Be Your Best. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial. YOU AND BE YOUR BEST HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Be Your Best are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES BE YOUR BEST THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the Federal Court of Norway. All other claims shall be arbitrated.
17.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Be Your Best username (if any), the email address you used to set up your Be Your Best account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.7 Severability. Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Be Your Best.
17.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Be Your Best makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Be Your Best at the following address: Be Your Best Global AS, Gaustadalléen 21, 0349 Oslo, Norway.
18. GENERAL PROVISIONS.
18.1 Electronic Communications. The communications between you and Be Your Best may take place via electronic means, whether you visit Be Your Best Properties or send Be Your Best e-mails, or whether Be Your Best posts notices on Be Your Best Properties or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Be Your Best in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Be Your Best provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Be Your Best’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.3 Force Majeure. Be Your Best shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Be Your Best Properties, please visit beyourbest.com/contact. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Be Your Best agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the federal court of Norway located in Oslo, Norway.
18.6 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF NORWAY, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
18.7 Notice. Where Be Your Best requires that you provide an email address, you are responsible for providing Be Your Best with your most current email address. In the event that the last e-mail address you provided to Be Your Best is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Be Your Best’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Be Your Best at the following address: Be Your Best Global AS, Gaustadalléen 21, 0349 Oslo, Norway. Such notice shall be deemed given when received by Be Your Best by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.10 Export Control. You may not use, export, import, or transfer Be Your Best Properties except as authorized by Norwegian law, the laws of the jurisdiction in which you obtained Be Your Best Properties, and any other applicable laws. You also will not use Be Your Best Properties for any purpose prohibited by Norwegian law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Be Your Best are subject to the export control laws and regulations of Norway. You shall comply with these laws and regulations and shall not, without prior Norwegian government authorization, export, re-export, or transfer Be Your Best products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations
18.11 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
a) You acknowledge and agree that (i) the Agreement is concluded between you and Be Your Best only, and not Apple, and (ii) Be Your Best, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Be Your Best and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Be Your Best.
d)You and Be Your Best acknowledge that, as between Be Your Best and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e)You and Be Your Best acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Be Your Best and Apple, Be Your Best, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
f) You and Be Your Best acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
g)Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
18.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Agreement
Last Updated: May 27, 2021
SUBSCRIPTION COVERAGE & BILLING
Subscription Coverage. By purchasing a Subscription, you will get access to all of the Services available under your Subscription for as long as the Subscription remains active and in good standing. Subscriptions can be purchased from Be Your Best via the Application or the Website. You may not use a Subscription on more than one (1) headset or device.
Billing Cycles and Auto-Renewal. All Subscriptions continue indefinitely until they are canceled or terminated in accordance with these Membership Terms. For each Subscription, billing occurs automatically at the beginning of the Initial Term. After the Initial Term, the Subscription will automatically renew for additional equivalent periods at Be Your Best’s then-current price unless cancelled before your Renewal Commencement Date in accordance with these Membership Terms. By purchasing a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Be Your Best. To change or terminate your Subscription or if you do not wish your Account to renew automatically, please go to www.beyourbest.com/faq, or login and go to the “Account” tab in the main menu click on either “Upgrade To All-Access” or “Manage Billing Account” and follow the prompts for canceling your subscription.
Free Trials and Promotions. Be Your Best may offer promotions or discounts related to Subscriptions from time to time. Please read the details of those offers carefully, as any additional terms presented to you during the signup process will form part of these Membership Terms. Unless specified in writing, all discount offers that require a payment are non-refundable. Any free trial or other promotion, if offered, must be used within the specified time frame of the trial or promotion. No person will be able to initiate more than one (1) free trial. You may be required to have a valid payment method on file in order to initiate a free trial; in this case, if you do not cancel before your free trial period ends, your account will be converted to a paid Subscription and will be charged in accordance with these Membership Terms. At certain times we may offer special promotional offers that may have a different free trial period length, or no free trial period. Various special promotional offers may not be combined or retroactively updated if a new promotion offers different or better terms after your free trial period begins. Cancelling a free trial early will be considered full completion of that free trial. In all instances, your Subscription remains subject to these Membership Terms and you will continue to be automatically billed monthly after your free trial ends.
TERMINATION OR CANCELLATION OF SUBSCRIPTION
Cancellation of Subscription. If you want to terminate your Subscription, please visit www.beyourbest.com/faq or login and go to the “Account” tab in the main menu click on “Manage Billing Account” and follow the prompts for canceling your subscription. If you terminate your Subscription after the applicable period commencement date, you may use the Services until the end of the then-current period and your Subscription will not be renewed after that period expires. Except as stated above, all Service Subscription Fees are non-refundable.
Amount to be Charged. You agree to pay the monthly, quarterly or annual fee specified when purchasing a Subscription (plus any applicable taxes and other charges) and any amount(s) associated with any In-App Purchases in accordance with any and all applicable terms, whether imposed by Be Your Best or an App Store, at the time a fee or charge is due and payable. If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction, unless applicable law requires you to expressly consent to the change in price. Any agreement you have with your payment provider governs your use of your specified payment method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Your failure to terminate and/or continued use of your Subscription reaffirms that we are authorized to charge you for that Subscription. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you.
Billing Authorization. You may be asked to provide a payment method (such as a credit, charge or debit card number) that we accept in order to activate your Subscription or in connection with any In-App Purchases, if applicable, along with other payment information. You represent and warrant that you have the legal right to use all payment method(s) that you provide to us. Your authorizations in this section also apply to our payment processors and any other companies who act as billing agents for us. You hereby authorize us to charge your specified payment method (i) on a monthly or annual basis (as applicable), in advance, for your Subscription(s), (ii) to place a hold on your payment method with respect to any unpaid charges for your Subscription(s), or (iii) in connection with any In-App Purchases. You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt, and you agree that these Membership Terms shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither Be Your Best, nor any Be Your Best employee, officer, director, or agent, will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified payment method as contemplated by these Membership Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.
Bill Inquiries and Refunds. If you believe you have been billed in error for a Subscription, please notify us within 60 days of the billing date by visiting www.beyourbest.com/contact. Be Your Best will not issue refunds or credits after the expiration of this 60-day period, except where required by applicable law.
Be Your Best, Gaustadalléen 21, 0349 Oslo, Norway.