BridgeAthletic Software as a Service Agreement
This Software as a Service Agreement (this “Agreement”) is entered into by and between BridgeAthletic Inc., a Delaware Corporation (“BridgeAthletic”, “we” or “us”) and you, acting on your behalf, and on behalf of your End Users (defined below) and employer or organization that you represent (“Customer” or “you”).
Whereas Customer, and certain End Users on behalf of whom Customer enters into this Agreement, desire to obtain access to and be permitted to utilize certain BridgeAthletic software, and BridgeAthletic desires to enable Customer to do the same for a certain fee.
Now therefore, in consideration of the foregoing, the mutual promises and covenants set forth herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
- Customer Data means all electronic data or information submitted or uploaded by Customer or End Users to the Service.
- End Users means those individual(s) who are authorized by Customer to use the Service and to whom Customer has provided access to the Service having registered Accounts with user identification name and password.
- Enhancements means any update or release of the Service that BridgeAthletic may provide to Customer from time to time during the term, that may contain, among other things, error corrections or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Service, but does not constitute a new version.
- Intellectual Property Rights means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, knowhow and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.
- Performance Data means team rosters and performance statistics entered by Customer or End User into the Service.
- Service means the Website, web widgets, feeds, Mobile Software, BridgeStrength, BridgeTracker, the Basic Service and any other mobile or web services or applications owned, controlled, or offered by BridgeAthletic, together with any Enhancements provided to Customer or an End User pursuant to this Agreement.
- User Content means Performance Data and Customer Data, including feedback, comments, questions, and other content that you post through the Service.
- Workout Content means any and all exercise videos, exercise images, exercise cues, exercise phases, workout blocks, and workout plans provided to the Customer by BridgeAthletic.
- Website means the website at http://www.BridgeAthletic.com.
Capitalized terms used but not defined in this Section will have the meaning(s) ascribed to them in the Agreement.
2. Customer Acknowledgment
- You represent and warrant that you are an authorized representative of End Users with the authority to grant access to the Services for your End Users subject to this Agreement. Except where the context so requires, any references in this Agreement to “Customer” or “you” shall include your End Users and Authorized Users (defined below). You further represent and warrant that you are responsible for your Authorized Users’ and End Users’ compliance with this Agreement.
- BridgeAthletic may contract with third parties to provide certain services and content through the Service (“Content Provider”). You understand, acknowledge and agree that: (i) releases, indemnifications, waivers and contractual benefits of any nature that apply, extend or inure to the benefit of BridgeAthletic may also apply, extend and inure to the benefit of Content Provider to the extent made available through the Services on our behalf; and (ii) you may be required to agree to separate instruments and agreements as required by the Content Providers concerning your acceptance and receipt of services from the Content Provider via the Services.
3. Use of the Service
- You represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; (c) your use of the Service is in compliance with all applicable laws and regulations in relation to the use of the Service; and (d) you will at all times comply with any terms of this Agreement and third party licenses for the Services.
- You acknowledge and agree that the Service is intended for use only by individuals healthy enough to perform strenuous exercise. End User’s older than thirty five (35) years of age, or who have not been physically active for more than 1 year or have any medical history that may put you at risk, including, without limitation, one or more the following conditions, are required to seek approval from a qualified health care practitioner prior to using the Service: heart disease, high blood pressure, family history of high blood pressure or heart disease, chest pain caused by previous exercise, dizziness or loss of consciousness caused by previous exercise, bone or joint problems, diabetes, high cholesterol, obesity, arthritis.
- YOU ACKNOWLEDGE AND AGREE THAT BRIDGEATHLETIC IS NOT A MEDICAL ORGANIZATION, AND ITS RECOMMENDED WORKOUT PLANS AND SPECIFIC EXERCISES DO NOT CONSTITUTE MEDICAL ADVICE, PRESCRIPTIONS, OR DIAGNOSES.
- End Users should discontinue exercise in cases where it causes pain or severe discomfort, and should consult a medical expert prior to returning to exercise in such cases. We reserve the right to deny End Users access to the Service for any reason or no reason, including on the basis of your End User’s medical conditions.
- In order to use the Service, you agree to create an account (“Account”) with us (“Registration”). You agree:
BridgeAthletic will not be liable for any losses caused by any unauthorized use of your Account caused by you and your users’ use and activity.
- not to use another Account without permission from BridgeAthletic;
- to provide accurate and complete information and to keep this information accurate and up-to-date at all times;
- that you are solely responsible for your and your users’ activity that occurs on your Account;
- that you must keep your Account password secure;
- that you must notify BridgeAthletic immediately of any breach of security or unauthorized use of your Account;
- to use the Service only in accordance with the Agreement, applicable laws and government regulations.
- You may control your profile and how you interact with the Service by changing the settings of your Account. By providing BridgeAthletic your email address you consent to our using your email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change the preferences of your Account. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- Administration of the Account will be limited to you and employee-personnel responsible for the administration of the Account on behalf of you and End Users (“Authorized Users”). The Authorized Users may create other user accounts for administration of your Services where authorized by BridgeAthletic. You are responsible for:
You will be responsible for all of your activities that occur under your users’ usernames, passwords or accounts.
- identifying and authenticating such additional users;
- unless we provide otherwise, approving access to such users to the Service; and
- maintaining the confidentiality of all usernames, passwords and user account information.
3.3. Service Rules
- You acknowledge and agree that the Service is not for use in emergency or urgent situations. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
- You should be aware that there are inherent physical and mental health risks to exercise, including risk of injury or illness. By accessing the Service, you acknowledge and agree that your performance of any and all exercises or activities recommended by the Service is wholly at your and your End Users own risk. BridgeAthletic, its employees and its agents will not be liable for any physical or mental injury or illness that may result, whether directly or indirectly, from any of our recommended workout plans or exercises. While we may provide guidelines such as written descriptions, pictures, or videos describing how to perform specific exercises or activities, you assume sole responsibility for performance of those exercises or activities with proper form, as risk of injury or illness increases with improper form. We encourage you and your End User’s to seek multiple sources of information regarding how to perform each exercise correctly and to consider consulting with a qualified coach, instructor, personal trainer, or physical therapist, especially if you or your End Users are new to any of the forms of training or activity you seek to perform. We highly recommend you and your End Users seek guidance from a physical therapist or other qualified health care practitioner for preexisting injuries or conditions that may compromise the joints, muscles, or other tissues involved in your workouts, or that might otherwise interfere with recommended activities.
- BridgeAthletic may, at any time and subject to refunds for payments received for Services not rendered, permanently or temporarily terminate, modify, suspend (including by limiting or discontinuing certain features of the Service), or otherwise refuse to permit your access to the Service without notice, including if in BridgeAthletic’s sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. We will attempt to limit the material impact for changes to the Service or any suspension or termination of your access to or use of the Service, such as by providing advance notice where reasonable.
- All aspects of the Service are subject to change or elimination at BridgeAthletic’s sole discretion. BridgeAthletic reserves the right to interrupt the Service with or without prior notice for continued maintenance and other business reasons. Except as provided herein, you agree that BridgeAthletic will not be liable to you for any interruption of the Service, delay, or failure to perform.
- You are solely responsible for your interactions with other individuals using the Service. Subject to our data protection policies and procedures, we reserve the right, but have no obligation, to monitor communications between you and such other individuals. BridgeAthletic shall have no liability for the content of you share in your interactions with other individuals using the Service, or for the action or inaction of any individual using the Service.
3.4. Prohibited Conduct
- You agree not to engage in any of the following prohibited activities:
- copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
- using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the BridgeAthletic servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that BridgeAthletic grants the operators of public search engines revocable permission to use spiders to copy materials from BridgeAthletic.com 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);
- transmitting spam, chain letters, or other unsolicited email;
- attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
- taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- uploading invalid data, viruses, worms, or other software agents through the Service;
- using the Service for any commercial solicitation purposes;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- interfering with the proper working of the Service;
- accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
- bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or
- attempting to do any of the acts described in this Section 3, or assist or permit any person in engaging in any of the acts described in this Section 3.
- Accessing the audiovisual content available on the Service for any purpose or in any manner other than Streaming is expressly prohibited. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to your device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by you.
4. User Content
- Some areas of the Service may allow you to post User Content. You are solely responsible for your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand that whether or not such User Content is published, BridgeAthletic does not guarantee any confidentiality with respect to any User Content.
- You agree not to post User Content that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
- may create a risk of any other loss or damage to any person or property;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
- contains any information or content that you know is not correct and current. You must not post any User Content to the Service if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to post to the Service. You agree that you have sufficient and lawful rights to post any User Content and that the User Content you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. BridgeAthletic reserves the right, but is not obligated, to reject and/or remove any User Content that BridgeAthletic believes, in its sole discretion, violates these provisions or is otherwise objectionable. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
- BridgeAthletic does not control and does not have any obligation to monitor User Content or the use of the Service by its users. BridgeAthletic takes no responsibility and disclaims any and all liability in connection with User Content that you or any other End User or third-party posts or sends over the Service. You shall be solely responsible for your own User Content and the consequences of posting or publishing it. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. In connection with your User Content, you affirm, represent and warrant the following:
- Where required by applicable law, you have the authorization of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You own or otherwise have and will have the necessary rights and authorization in and relating to User Content so that User Content and BridgeAthletic’s use thereof as contemplated by this Agreement does not and will not:
- infringe, violate, or misappropriate any Intellectual Property Rights, privacy rights, rights of publicity, or any proprietary right;
- slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person;
- cause BridgeAthletic to violate any law or regulation; or
- result in a breach of contract between you and a third party.
- BridgeAthletic may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. You agree to pay all monies owing to any person as a result of posting your User Content on the Service and from BridgeAthletic’s exercise of the license set forth in Section 5.
- BridgeAthletic is not responsible for any public display or misuse of your User Content resulting from your activities. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against BridgeAthletic with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If we are notified or otherwise determine (in our sole discretion) that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
5. User Content License Grant
You retain all your ownership rights in your User Content. By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to BridgeAthletic a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to host, store, transfer, use, reproduce, modify, list information regarding, edit, translate, distribute, syndicate, and make derivative works of all such User Content for use in connection with the Service. You also hereby grant each End User of the Service a non-exclusive license to access your User Content through the Service to use such User Content as permitted through the functionality of the Service and for purposes of BridgeAthletic providing the Services and compliance with this Agreement.
6. End User License Grant
6.1. BridgeAthletic Service
Subject to the terms and conditions of this Agreement, BridgeAthletic hereby grants you a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your noncommercial use of the Services in accordance with this Agreement. BridgeAthletic reserves all rights in the Service not expressly granted herein. BridgeAthletic may terminate this license at any time for any reason or no reason.
6.2. Mobile Software
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. BridgeAthletic does not warrant that the Mobile Software will be compatible with your mobile device. BridgeAthletic hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Account on multiple mobile devices owned or leased solely by you, for your personal use. You may not:
- modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law;
- rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party;
- make any copies of the Mobile Software;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or
- delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that BridgeAthletic may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device.
You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and as between the parties, all right, title, and interest in and to the Mobile Software (and any copy thereof) are vested and shall remain vested in BridgeAthletic or its third party partners or suppliers.
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the BridgeAthletic Service.
7. Our Proprietary Rights
As between the parties, all rights, title and interest, including any Intellectual Property Rights, in and to the Service are vested and shall remain vested in BridgeAthletic and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place BridgeAthletic under any fiduciary or other obligation, and that we are free to use the Idea in any manner and without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, BridgeAthletic does not waive any rights to use similar or related ideas previously known to BridgeAthletic, or developed by its employees, or obtained from sources other than you.
You understand and agree that User Content and Customer Data does not include any data or other information generated by BridgeAthletic through any automated data analysis or aggregated and/or deidentified information related to any usage of the Services. BridgeAthletic reserves the right to use such data or information for its own business purposes, including to improve the Services.
8.1. Recurring Billing
You will pay all fees specified in BridgeAthletic order forms (“Order Form”). Except as otherwise specified herein or in an Order Form, (Example in Appendix A) (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
8.2. Payment method
You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 16(b) (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
8.3. Fee changes
If BridgeAthletic changes the fees for the Service, including by adding additional fees or charges, BridgeAthletic will provide you reasonable advance notice of those changes. Changes in fees for the Service you previously purchased are effective following the term of your purchased Services. If you do not accept the changes, you may discontinue the Service, effective upon the end of the term of your Service.
8.4. Billing Cycle
Unless noted in your Order Form, the fee will be billed at Registration and at the beginning of each billing period thereafter unless and until you terminate this Agreement in accordance with Section 16(c) below. We automatically bill your payment method each billing period on the calendar day corresponding to the commencement of your Registration. Membership fees are fully earned upon payment. You agree to pay all invoiced fees within thirty (30) days of the invoice date.
8.5. Overdue Charges
All undisputed late payments shall (a) bear interest at the lesser of the rate of 1.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly and (b) BridgeAthletic may condition future renewals on payment terms shorter than those specified in this Agreement.
8.6. Suspension of Service and Acceleration
If any undisputed amount owed by you under this Agreement is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts you have authorized BridgeAthletic to charge to your credit card), BridgeAthletic may, without limiting your other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Services to you until such amounts are paid in full. BridgeAthletic will give you at least ten (10) days prior notice that account is overdue, before suspending the Service to you.
BridgeAthletic’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all taxes associated with the Service hereunder. If BridgeAthletic has a legal obligation to pay or collect taxes for which you are responsible then, following any such payment, BridgeAthletic will invoice you and you will pay that amount unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, BridgeAthletic is solely responsible for taxes assessable against BridgeAthletic based on its income, property and employees.
8.8. No Refunds
EXCEPT AS SET FORTH IN THIS AGREEMENT AND ORDER FORM, ALL PAYMENTS ARE FINAL AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS.
10. Security and Confidential Information
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information or PII from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information or PII for improper purposes. You acknowledge that you provide your personal information and PII at your own risk. For additional details regarding our data protection and security practices, please contact us at email@example.com. We and you both will secure and keep confidential all non-public information disclosed by the other party. However, either of us may disclose the other party’s non-public information if required by law, so long as this is communicated to the other party before disclosing the information.
11. DMCA (Digital Millennium Copyright Act)
11.1. Respect of Third-Party Rights
BridgeAthletic respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
11.2. Repeat Infringer Policy
BridgeAthletic’s intellectual property policy is to:
- remove or disable access to material that BridgeAthletic believes in good faith, upon notice from an intellectual property owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and
- remove any User Content uploaded to the Service by “repeat infringers.”
BridgeAthletic considers a “repeat infringer” to be any user that has uploaded User Content to or through the Service and for whom BridgeAthletic has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. BridgeAthletic reserves the right, however, to suspend or terminate the Account of any user after receipt of a single notification of claimed infringement or upon BridgeAthletic’s own determination.
11.3. Procedure for Reporting Claimed Infringement
If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “ Notification of Claimed Infringement ” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by BridgeAthletic with the user alleged to have infringed a right you own or control, and you hereby consent to BridgeAthletic making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BridgeAthletic to locate the material on the Service;
- Information reasonably sufficient to permit BridgeAthletic to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright or other intellectual property owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by BridgeAthletic with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to BridgeAthletic making such disclosures. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4. Designated Agent Contact Information
BridgeAthletic’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Phone: (650) 644-7416
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: P.O. Box 610123, Redwood City, CA 94061
Attn: BridgeAthletic Copyright Department
11.5. Counter Notification
If you receive a notification from BridgeAthletic that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide BridgeAthletic with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to BridgeAthletic’s Designated Agent through one of the methods identified in Section 11.d, and include substantially the following informat
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which BridgeAthletic may be found, and that you will accept service of process from the person who provided notification under Section 11.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6. Reposting of Content Subject to a Counter Notification
If you submit a Counter Notification to BridgeAthletic in response to a Notification of Claimed Infringement, then BridgeAthletic will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that BridgeAthletic will replace the removed User Content or cease disabling access to it in 10 business days, and BridgeAthletic will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless BridgeAthletic’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on BridgeAthletic’s system or network.
11.7. False Notifications of Claimed Infringement or Counter Notifications
The Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 51
- that material or activity is infringing, or
- that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Bridge] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
BridgeAthletic reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
You agree to defend, indemnify and hold harmless BridgeAthletic and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s’ fees) (“Losses”) arising from:
- your use of and access to the Service, including any data or content transmitted or received by you;
- your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
- your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;
- your violation of any law, rule or regulation of the United States or any other country;
- any claim or damages that arise as a result of any of your User Content or any that is submitted by you;
- any other party’s access and use of the Service with your unique username, password or other appropriate security code; or
- physical or mental injury or death occurring, whether to you or a third party, in connection with your use of the Service.
We agree to defend, indemnify and hold you harmless from Losses arising from any claims made by a third party to the extent they arise from the use of the Services in accordance with this Agreement infringing or misappropriating such third party’s Intellectual Property Rights; provided that, if BridgeAthletic becomes aware of, or anticipates, a claim subject to indemnification under this Section, then we may, at our option
- modify the Services that is the subject of the claim so that it becomes non-infringing, or substitute functionally equivalent Services;
- obtain a license to the third-party Intellectual Property Rights giving rise to the claim; or
- terminate any Services that rely on the Services subject of the claim, and coordinate with you in providing any refunds for impacted Services.
14. No Warranty
- THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRIDGEATHLETIC OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BRIDGEATHLETIC, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
- BRIDGEATHLETIC DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BRIDGEATHLETIC WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
- BRIDGEATHLETIC MAKES NO CLAIM THAT RECOMMENDED WORKOUT PLANS OR SPECIFIC EXERCISES ARE MEDICALLY SAFE FOR ANY INDIVIDUAL TO PERFORM AND HEREBY EXPLICITLY DISCLAIMS ALL WARRANTIES THEREFOR. BRIDGEATHLETIC MAKES NO WARRANTY OR GUARANTEE THAT USE OF THE INFORMATION OR CONTENT PROVIDED BY THE SERVICE WILL RESULT IN ANY HEALTH RESULT, INCLUDING WITHOUT LIMITATION HEALTH BENEFITS. OUR TRAINING RECOMMENDATIONS ARE INTENDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. YOU ARE REQUIRED TO SEEK MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PRACTITIONER PRIOR TO BEGINNING ANY NEW EXERCISE OR TRAINING PROGRAM.
- SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
15. Limitation of Liability
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOU, BRIDGEATHLETIC, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL BRIDGEATHLETIC BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIDGEATHLETIC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY, PHYSICAL INJURY, MENTAL INJURY, DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL BRIDGEATHLETIC, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BRIDGEATHLETIC HEREUNDER.
- EXCEPT AS PROVIDED IN SECTION 19, THE AGGREGATE LIABILITY OF BRIDGEATHLETIC TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BRIDGEATHLETIC FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
- EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BRIDGEATHLETIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
16. Term and Termination
16.1. Commencement and Renewal
Agreement commences on the date you first accept it and continues until all Services ordered have expired or have been terminated (the “term”).
16.2. Term of Purchased Subscriptions
Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless we provide you notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
Either party may terminate this Agreement without cause upon thirty (30) days’ written notice to the other party. BridgeAthletic may terminate this Agreement immediately upon your breach of any terms or conditions of this Agreement.
16.4. Refund or Payment upon Termination
If the Service is terminated by you in accordance with Section 16(c), all amounts owed to BridgeAthletic at the time of such termination will become immediately due and payable. If the Service is terminated by BridgeAthletic without cause, BridgeAthletic will provide you with a pro-rated refund of any prepaid fees covering the period from the date of termination through the end of the term in accordance with your Order Form. In no event will termination relieve your obligation to pay any fees payable to BridgeAthletic for the period prior to the effective date of termination.
16.5. Customer Data
Upon request by you made within 30 days after the effective date of termination or expiration of this Agreement, we will make Customer Data available to you for export or download as provided in the online support and feature documentation for the Services. After such 30-day period, we will have no obligation to maintain or provide any Customer Data, and as provided in the documentation, will thereafter obfuscate, delete or destroy all copies of Customer Data in our systems or otherwise in our possession or control unless legally prohibited, in which case we shall retain such Customer Data as may be required by relevant laws and regulations and subject to reasonable security and confidentiality requirements.
16.6. Surviving Provisions
Sections 5, 7, 8, 13, 14, 16 (f), 18 and 19 will survive any termination or expiration of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by BridgeAthletic without restriction.
18.1. Governing Law
You agree that:
- the Service shall be deemed to be solely based in California; and
- the Service shall be deemed a passive one that does not give rise to personal jurisdiction over BridgeAthletic, either specific or general, in jurisdictions other than California.
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and BridgeAthletic that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in San Francisco County, California, unless submitted to arbitration as set forth in Section 19 below.
18.2. Notification Procedures
BridgeAthletic may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on the Website, as reasonably determined by BridgeAthletic in our sole discretion under the circumstances. BridgeAthletic reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement. BridgeAthletic is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add email@example.com to your email address book to help ensure you receive email notifications from us.
18.3. Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with BridgeAthletic in connection with the Service, shall constitute the entire agreement between you and BridgeAthletic concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
18.4. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and BridgeAthletic’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
18.5. Force Majeure
We will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as a result of any cause or condition beyond our reasonable control, so long as we use commercially reasonable efforts to avoid or remove such causes of non-performance.
18.6. Independent Contractors
Our relationship is an independent contractor relationship, and unless we and you both agree, neither of us has the power to (i) act as an agent or (ii) direct or control the day-to-day activities, of the other.
18.7. Third Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.
19. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and BridgeAthletic in the most expedient and cost effective manner, and except as described in Section 19.b and 19.c, you and BridgeAthletic agree that any dispute arising in connection with this Agreement, the Service, and communications from us will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement, the Service, or any communications to or from us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BRIDGEATHLETIC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding Section 19.a above, nothing in this Agreement will be deemed to waive, preclude or otherwise limit the right of either party to:
- bring an individual action in small claims court;
- pursue an enforcement action through the applicable federal, state or local agency if that action is available;
- seek injunctive relief in aid of arbitration from a court of law of competent jurisdiction; or
- to file suit in a court of law to address an intellectual property infringement claim.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to this Agreement by sending a letter to BridgeAthletic, Inc., Attention: Compliance Department, P.O. Box 610123, Redwood City, CA 94061 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once BridgeAthletic receives your Opt-Out Notice, this Section 19 will be void and any action arising out of this Agreement will be resolved as set forth in Section 18. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
ny arbitration between you and BridgeAthletic will be settled under the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BridgeAthletic. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
19.5. Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice ”). BridgeAthletic’s address for Notice is: 290 Division Street, Suite 410, San Francisco, CA, Attn: Chief Executive Officer. The Notice must:
- describe the nature and basis of the claim or dispute; and
- set forth the specific relief sought (“Demand”).
The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or BridgeAthletic may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BridgeAthletic must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by BridgeAthletic prior to selection of an arbitrator, BridgeAthletic will pay you the highest of the following:
- the amount awarded by the arbitrator, if any; and
If you commence arbitration in accordance with this Agreement, BridgeAthletic will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your billing address, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted:
- solely on the basis of documents submitted to the arbitrator;
- through a non-appearance based telephone hearing; or
- by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BridgeAthletic for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 19.
19.7. No Class Actions
OU AND BRIDGEATHLETIC AGREE THAT EACH 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and BridgeAthletic agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.8. Modifications to this Arbitration Provision
If BridgeAthletic makes any future change to this arbitration provision, other than a change to BridgeAthletic’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to BridgeAthletic’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and BridgeAthletic.
If Section 19.g above is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, or if BridgeAthletic receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to this Agreement.
20. Public Announcements
BridgeAthletic may, with your consent, issue or release any announcement, statement, press release, or marketing materials relating to this Agreement, which may include the use of your trademarks, service marks, trade names, logos, domain names, or other indicia of source; prepare and utilize testimonials made by you; and use your name or other indicia of source in our lists of our current, or as the case may be, former customers in promotional and marketing materials.
21. Manner of Giving Notice
Except as provided under Section 18 (b), all notices to Customer or to BridgeAthletic shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at email@example.com, if by email, or at BridgeAthletic, Inc., 290 Division St., Suite 410, San Francisco, California 94103 USA, if by conventional mail. Notices to Customer may be sent to the email address supplied by Customer when registering or updating his or her Account. In addition, BridgeAthletic may broadcast notices or messages through the Service to inform you of changes to the Service or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under this Agreement will be deemed delivered to the party receiving such communication
- on the delivery date if delivered personally to the party;
- two business days after deposit with a commercial overnight carrier, with written verification of receipt;
- five business days after the mailing date, if sent by US mail, return receipt requested;
- on the delivery date if transmitted by facsimile;
- on the delivery date if transmitted by email.
22. Notice Regarding Apple
This Section 22 only applies to the extent you are using our mobile application on AN iOS device. You acknowledge that this Agreement is between you and BridgeAthletic only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including:
- product liability claims;
- any claim that the Service fails to conform to any applicable legal or regulatory requirement; or
- claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that:
- you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and
- you are not listed on any U.S. Government list of prohibited or restricted parties. If BridgeAthletic provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.
23. Notice to California Residents
If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.