TERMS OF SERVICE

Effective Date: January 1, 2024.

PLEASE READ THIS AGREEMENT CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND THE PRODUCTS AND SERVICES AVAILABLE FOR SALE THROUGH THE SERVICE.

THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.

Introduction

Welcome!  The Terms of Service (“Terms”) governs the Therabody website (www.therabody.com) (including both mobile and online versions) (the “Site”), our related Therabody mobile apps (each, an “App”), and your use of interactive features, widgets, plug-ins, mobile applications, content, downloads and/or other online services that we own and control and that post a link to these Terms (collectively with the Site and each App, the “Service”), which are made available by Therabody Inc., d/b/a Therabody (“Therabody”, “we”, “our” or “us”).  By using the Service, you acknowledge and accept the Service’s Privacy Policy and consent to the collection and use of your data in accordance with our Privacy Policy.

If You Want to Access or Use the Service,

then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations.  Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted.  Therefore, do not use the Service if you do not agree.

The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.

By accessing and/or using the Service, you agree to be bound by these Terms.  In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  Additionally, certain features and services made available through the Service from time to time may be governed by different terms of use.

Medical Advice/Device Disclaimer

THE PRODUCTS PROVIDED BY THERABODY ARE NOT INTENDED FOR USE IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS, AND SHOULD IN NO WAY BE CONSIDERED A REPLACEMENT FOR MEDICAL ADVICE AND ACTION IN ORDER TO CURE, TREAT OR PREVENT DISEASES OF ANY NATURE.

Please seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions.  Therabody does not recommend or endorse any specific physicians, procedures, products (including our products), opinions or other information that may be included on the Service; the same are only for informational purposes.  Reliance on any information appearing on the Service, whether provided by Therabody, its content providers, the visitors to the Service or others, is solely at your own risk.

Table of Contents

It is important that you read and understand these entire Terms before using the Service.  To ease review, each section below includes a brief introductory summary and a link to the full explanation.  Please note that the complete provisions, and not the headings or summaries shall govern.  You can click on the headings and “More” buttons to be taken to the full explanation.  Any capitalized terms have the meanings given to them where defined in the Terms.    

1. Service Content, Ownership, Limited License and Rights of Others

We only grant you a limited, revocable right to use the Service for your own non-commercial use, subject to rules and limitations. 

2. Service and Content Use Restrictions

Your use of our Service is subject to various restrictions designed to protect the Service and our users.  We may change or discontinue our Service in whole or in part. 

3. Terms Applicable to Purchases

If you purchase products and services from us via the Service, these terms apply. 

4. Accounts

You may have the opportunity to open, revise and close your accounts, subject to certain rules.  We may offer you the ability to make choices regarding how and to whom some aspects of your account are used and seen, but these may not be completely effective.

5. User Content and Community Usage Rules

You grant us a broad license, which we may sublicense, to the content you submit which you represent you have the right to allow us to use.  You, however, retain ownership of and responsibility for, your content.  Use of our Service is subject to community usage rules and we have the right to manage our Service to keep its content appropriate. 

6. Procedure For Alleging Copyright Infringement

Users may not post content they do not own or control, and may be suspended or terminated if they do so.  Copyright owners may give us notice of infringement by following specific instructions specifically addressed in this Section. 

7. Procedure For Alleging Infringement of Other Intellectual Property

You can also give notice of trademark and other infringements that you think occur on the Service. 

8. Notices and Questions

You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page of the Service, changing the date at the beginning of these Terms or by other reasonable means that we may elect, such as to the email address you provided. 

9. Links by You to the Service

You may link to our Service, subject to some basic rules. 

10. Linked-To Websites; Advertisements; Dealings with Third Parties

We are not responsible for third parties or their content, advertisement(s), apps, sites, products and/or services.  We may make advertisements and third-party content or services available to you on or via our Service, which we do not control.  Use caution when dealing with third parties. 

11. Wireless Features

Wireless carrier charges may apply to use of the Service via wireless networks or Devices. 

12. Dispute Resolution

You agree to arbitrate most disputes and waive jury trial and class actions and to bring many types of claims within one (1) year. 

13. Disclaimer of Representations and Warranties

We disclaim warranties to the extent permitted by applicable law, and provide the Service “As Is”. 

14. Limitations of our Liability

Our liability is greatly limited. 

15. Waiver of Injunctive or Other Equitable Relief

You waive equitable or injunctive relief. 

16. Updates to Terms

These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves.  Posting of new Terms on the Service is notice to you thereof, though we may also provide them to you via e-mail or other means. 

17. General Provisions

You agree to various other terms and conditions, which you should read here, including regarding: (a) our control and discretion; (b) your indemnity of us; (c) accessing the Service from outside of the United States; (d) enforcement and interpretation of these Terms; (e) communications with us; (f) investigations, cooperation with law enforcement, termination and survival; (g) limit on assignment and delegation of rights and obligations; (h) how waivers may be made; (i) your California consumer rights; and (j) your responsibility for your connectivity and access. 

18. Terms Applicable For Apple Device Users

There are some other things you should know if you are accessing or using our mobile app through an Apple Device. 

19. Terms Applicable For SMS Subscribers

There are additional terms that apply if you sign up to receive recurring automated promotional and personalized marketing text messages (e.g. cart reminders) from Therabody.

Full Details of the Terms of Service

1. Service Content, Ownership, Limited License and Rights of Others

A. Content.  The Service contains a variety of: (i) materials and other items relating to Therabody, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) our Therabody blog(s); (iii) the Therabody podcast; (iv) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Therabody (collectively, “Trademarks”); and (v) other forms of intellectual property (all of the foregoing collectively, “Content”).

B. Ownership.  The Service (including past, present, and future versions) and the Content are owned or controlled by Therabody, our licensors and/or certain other third parties.  All right, title, and interest in and to the Content available via the Service is the property of Therabody or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.  Therabody owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.

C. Limited License.  Subject to your strict compliance with these Terms and any Additional Terms, Therabody grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Therabody’s sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

D. Rights of Others.  When using the Service, you must respect the intellectual property and other rights of Therabody and others.  Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 6 below.

2. Service and Content Use Restrictions

A. Service Use Restrictions.  You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Therabody; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Therabody, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.

B. Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Therabody or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

C. Availability of Service and Content.  Therabody may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Therabody’s sole discretion, and without advance notice or liability.

D. Reservation of All Rights Not Granted as to Content and Service.  These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by Therabody and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.

3. Terms Applicable to Purchases

A. Purchases Generally.  To purchase certain products, services sold on the Service, we may require you to be of sufficient legal age as specifically indicated in any Additional Terms posted on the Service. Prior to the purchase of any product or services, you will be asked to supply certain information relevant to your purchase, including, without limitation, associated payment information (such as your payment card number, the card type, the date of expiration, and any activation numbers or codes needed to charge your card or payment account), your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. You will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. By submitting that information to us or to our third party payment processor, you agree that you authorize us and/or our processor to charge your card/account at our convenience.  For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order.  We will automatically bill your credit card or other account/form of payment submitted as part of the order process for such price.  Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering. Verification of information may be required prior to the acknowledgment or completion of any transaction on the Service.  If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents.  Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products and services.  You are responsible for paying any such taxes or charges imposed on your purchases, including, without limitation, sales, use or value-added taxes.  We shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that we deem is required in accordance with our order policy in effect at the time of purchase.

 

C. Return Policy and Orders/Shipping Policy.  All purchase transactions made through the Service are subject to our return policy and orders/shipping policy in effect at the time of purchase.  Our current Return Policy can be found here  and is incorporated into these Terms by reference.  Our current Orders/Shipping Policy can be found here  and is incorporated into these Terms by reference.  Some products or services are made-on-demand and may be subject to additional policies, conditions and restrictions, and may take longer to ship. Such on-demand items are made and fulfilled to order, and will be noted on the product or services description.  Products or services made-on-demand may not be returned or exchanged unless damaged or incorrect on arrival due to our error or mistake. All products purchased from us are delivered to you by a third-party delivery company, pursuant to a shipping contract.  You shall become the owner of the products and shall assume the risk of loss at the time of delivery by us of the products to the third-party delivery company.  We shall not be in default if delivery is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, terrorism, fire, storm, flood, explosion, strikes, walkouts, pandemic, other industrial disturbances, utility, services or transportation interruptions or any other cause beyond our reasonable control.

D. Order Acceptance Policy.  Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell or that the price or availability of an item has been confirmed.  We reserve the right at any time after receipt of your order to accept or decline your order (or otherwise cancel your order) for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item or refuse to fulfil your order. Your order will be deemed accepted by us upon our delivery of the products or services that you have ordered. We may require additional verifications or information before accepting any order. Unlike in-stock orders, certain products or services are made-on-demand and may be shipped to you directly from the third party on-demand vendor and subject to additional delay due to production methods.  Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your card or payment account in the amount charged for the cancelled portion or the quantity not provided (if your card/account has already been charged for the order); or (b) we will not charge your card/account for the cancelled portion of the order or the quantity not provided.  Do not assume that a cancellation or change of an order you have placed with us has been effectuated until you receive a confirmation from us via email.  As stated above, you will be responsible for, and your credit/debit card or other third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your order was received.  We may refuse any order that is connected with a previous credit card dispute.   We may refuse to accept any order if fraudulent activity is suspected and we may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.

E. No Responsibility to Sell Mispriced Products.  We do our best to describe every item, product or service offered on the Service as accurately as possible.  However, we are human, and therefore we do not warrant that specifications or pricing on the Service is complete, accurate, reliable, current, or error-free.  In the event of any errors relating to the pricing or specifications of any item, product or service, we shall have the right to refuse or cancel any orders in our sole discretion.  If we charged your credit/debit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.  If we accept and process your order where a pricing or specification error is obvious and unmistakable and could reasonably have been recognized by you as a mispricing or misdescription, we may cancel the sale, refund you any sums you have paid and require the return of any goods provided to you under the order.  If a product you purchased from us is not as described on the Service, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging, subject to the terms of the Return Policy.

F. Modifications to Prices or Billing Terms.  Purchases of products and services on the Service are subject to availability. All descriptions, images, references, features, content, information, specifications, products and prices described or depicted in connection with the Service are subject to change at any time without notice.  We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services, including for any items sold by third parties (if any).  We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice.  Descriptive, typographic and photographic errors are subject to correction and we shall have no liability of any kind for such errors.  We reserve the right to modify or cancel orders for any reason, including for typographical, pricing and other errors at any time.  We strive to display as accurately as possible the colors of the products shown on the Service; however, we cannot and do not guarantee that your monitor’s display of any color will be accurate.  PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. 

G. Offers and Discounts.  For most promotional offers, such as coupons, vouchers, and discounts, restrictions apply.  See offer for full terms and conditions applicable thereto.  Offers are not valid on previously purchased merchandise, gift cards, taxes or shipping and there is no cash value.  Limit one (1) offer per order. Offers may not be combined with other offers or promotions.  Offers are not valid if reproduced and they are only accepted for a limited time.  Please read the details of each offer, as coupons and promotional code restrictions vary.  We reserve the right to modify, suspend, impose conditions on or cancel offers at any time without notice.  If you return any of the items purchased with a discount offer, the discount or value may be subtracted from the return credit.  We have no obligation for payment of any tax in conjunction with the distribution or use of any offer.  You are required to pay any applicable sales tax related to the use of the offer.

4. Accounts

In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for a user account through our registration process that we make available through the Service.  The Service’s practices governing any resulting collection and use of your personal information are disclosed in our Privacy Policy.  If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive.  We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.  We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.  If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account.  We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.

5. User Content and Community Usage Rules

A. User-Generated Content.

(i)  General.  Therabody may now or in the future offer users of the Service the opportunity to create, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) product reviews, testimonials, messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”).  Therabody may allow you to do this through forums, workspaces, email, and other communications functionality.  Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.

(ii)  Non-Confidentiality of Your User-Generated Content.  Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) Therabody does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.  Upon Therabody’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk.  In your communications with Therabody, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below.  In addition, Therabody retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  Therabody’s receipt of your Unsolicited Ideas and Materials is not an admission by Therabody of their novelty, priority, or originality, and it does not impair Therabody’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

(iii)  License to Therabody of Your User-Generated Content.  Except as otherwise described in any applicable Additional Terms, you grant to Therabody the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.  You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so.  In order to further effect the rights and license that you grant to Therabody to your User-Generated Content, you also hereby grant to Therabody, and agree to grant to Therabody, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(iii).

(iv) Exclusive Right to Manage Our Service.  Therabody may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Therabody may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner.  Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5(B)).  Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.

(v) Representations and Warranties Related to Your User-Generated Content.  Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Therabody the rights to it that you are granting by these Terms and any Additional Terms, all without any Therabody obligation to obtain consent of any third party and without creating any obligation or liability of Therabody; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Therabody’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.

(vi) Enforcement.  Therabody has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Therabody’s cost and expense, to which you hereby consent and irrevocably appoint Therabody as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

B. Community Usage Rules.  As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of visitors of the Service’s online forums and user content areas (collectively, “Communities”).

(i) Nature of Rules.  Your participation in the Communities is subject to all of the Terms, including these Rules:

• Your User-Generated Content.  All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms.  Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties.  Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet.  If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Therabody (for example, if someone has taken a picture of you and your friend, and you submit that photo to Therabody as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.).

• Speaking of Photos:  No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family.  If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.

• Act Appropriately.  All of your Service activities must be venue appropriate, as determined by us.  Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy.  If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service.  Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited.  Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap.  Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.

• Do Not Use for Commercial or Political Purposes.  Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.

• Do Not Use for Inappropriate Purposes.  Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.

• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content.  Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.

• Others Can See.  We hope that you will use the Communities to exchange information and content and have venue appropriate discussions about job search-related issues with other members.  However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users.  Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.

• Don’t Share Other Peoples’ Personal Information.  Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Therabody.

• Don’t Damage the Service or Anyone’s Computers or Other Devices.  Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.

If you submit User-Generated Content that Therabody reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion.  However, we are not obligated to take any action not required by law.  We may require, at any time, proof of the permissions referred to above in a form acceptable to us.  Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.

(ii) Your Interactions With Other Users; Disputes.  You are solely responsible for your interaction with other users of the Service, whether online or offline.  We are not responsible or liable for the conduct or content of any user.  We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.  Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.

C. Alerting Us of Violations.  If you discover any content that violates these Terms, then you may report it to us here.  For alleged infringements of intellectual property rights, see Sections 6 and 7, below.

6. Procedure For Alleging Copyright Infringement

A. DMCA Notice.  Therabody will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below.  If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);

(iv) your full name, address, telephone number and email address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii) your electronic or physical signature.

Therabody will only respond to DMCA Notices that it receives by mail or email at the addresses below:

By Mail: Therabody Inc., 4910 Merrifield Road Dallas, TX 75236 (Attn: DMCA Agent)

 

By Email: info@theragun.com

It is often difficult to determine if your copyright has been infringed.  Therabody may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Therabody may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work.  That person may elect to send us a DMCA Counter-Notification.

Without limiting Therabody’s other rights, Therabody may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Therabody.

B. Counter-Notification.  If access on the Service to a work that you submitted to Therabody is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above.  Your DMCA Counter-Notification should contain the following information:

(i) a legend or subject line that says: “DMCA Counter-Notification”;

(ii) a description 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 (please include the URL or page of the Service from which the material was removed or access to it disabled);

(iii) a statement under penalty of perjury that you have 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;

(iv) your full name, address, telephone number, e-mail address, and the username of your account;

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi) your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification.  However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service.  You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

7. Procedure For Alleging Infringement of Other Intellectual Property

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:

(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;

(b) a description of the intellectual property that you claim has been infringed;

(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);

(d) your full name, address, telephone number and email address;

(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(g) your electronic or physical signature.

We will act on such notices in our sole discretion.  Any user of the Service that fails to respond satisfactorily to Therabody with regard to any such notice is subject to suspension or termination.  We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

8. Notices and Questions

You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you.  You agree to promptly notify us if you change your email or mailing address by updating your account information.

If you have a question regarding using the Service, you may contact us at info@theragun.com.  You acknowledge that the provision of customer support is at Therabody’s sole discretion and that we have no obligation to provide you with customer support of any kind.

9. Links by You to the Service

 

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Therabody or cause any other confusion, and (c) the links and the content on your website do not portray Therabody or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Therabody.  Therabody reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

10. Linked-To Websites; Advertisements; Dealings with Third Parties

A. Linked Services; Advertisements.  The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with Therabody.  Therabody may have no control over the content, operations, policies, terms, or other elements of Linked Services, and Therabody does not assume any obligation to review any Linked Services.  Therabody does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, Therabody is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services.  Finally, Therabody will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.  Therabody disclaims all liability in connection therewith.

B. Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  Therabody disclaims all liability in connection therewith.

11. Wireless Features

A. Wireless Features.  The Service may offer certain features and services that are available to you via your wireless Device.  These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features.  Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance.  Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device.  You should check with your carrier to find out what plans are available and how much they cost.  Contact your carrier with questions regarding these issues.

B. Terms of Wireless Features.  You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties.  Further, we may collect information related to your use of the Wireless Features.  If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.

12. Dispute Resolution

If you, in the capacity of a consumer or user of Therabody products or the Service and not in connection with any efforts by you to sell or resell Therabody products, reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and Therabody agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act.

A. First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Therabody’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 12(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such information exists or if such information is not current, then we have no obligation under this Section 12(A).  Your notice to us must be sent via email to: info@theragun.com.  For a period of sixty (60) days from the date of receipt of notice from the other party, Therabody and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Therabody to resolve the Dispute or Excluded Dispute on terms with respect to which you and Therabody, in each of our sole discretion, are not comfortable.

B. Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 12(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND THERABODY (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE.  For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Therabody and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  Therabody and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 12(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Therabody regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Therabody consent to in writing.  If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Los Angeles County, California.  You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Therabody to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then Therabody will have the right to elect to pay the fees and costs and proceed to arbitration.  The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  All issues are delegated to the arbitrator to decide, including the scope and enforceability of the arbitration and class action waiver provisions provided herein.  This arbitration provision shall survive termination of these Terms or the Service.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com. If an arbitrator or court determines that the AAA Consumer Due Process Protocol, JAMS Minimum Consumer Standards, or other similar arbitration due process requirements apply to the Dispute and/or an arbitration between you and Therabody, such standards/requirements shall control with respect to any conflicts with these Terms of Service.

C. Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 12(A); (b) filing for arbitration as set forth in Section 12(B); or (c) filing an action in state, Federal or provincial court.

D. Injunctive Relief.  The foregoing provisions of this Section 12 will not apply to any legal action taken by Therabody to seek an injunction or similar equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Therabody’s intellectual property rights (including such rights as Therabody may claim to be in dispute), Therabody’s operations, and/or Therabody’s products or services, where delay would cause irreparable harm and where the injunctive or equitable relief sought by Therabody would only remain in place long enough for Therabody to complete the process described in Section 12(a), submit the matter to arbitration, and present the request for equitable or injunctive relief to the arbitrator.

E. No Class Action Matters.  YOU AND THERABODY 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 OR AS AN ASSOCIATION.  Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 12(F).  Notwithstanding any other provision of this Section 12, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.

F. Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Los Angeles County, California.  Accordingly, you and Therabody consent to the exclusive personal jurisdiction and venue of such courts for such matters.

G. Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

H. Governing Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of California, without regard to its conflicts of law provisions

13. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.  THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, Therabody, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agencies, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, the “Therabody Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

(a) the Service (including the Content and the User-Generated Content);

(b) the functions, features, or any other elements on, or made accessible through, the Service;

(c) any products, services or instructions offered or referenced at or linked through the Service;

(d) security associated with the transmission of your User-Generated Content transmitted to Therabody via the Service;

(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, reliable or safe;

(g) whether any defects to, or errors on, the Service will be repaired or corrected;

(h) whether your access to the Service will be uninterrupted, timely, secure or error-free;

(i) whether the Service will be available at any particular time or location; and

(j) whether your use of the Service is lawful in any particular jurisdiction.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A THERABODY PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE THERABODY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

14. LIMITATIONS OF OUR LIABILITY

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY THERABODY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

(a) the Service (including the Content and the User-Generated Content;

(b) your use of or inability to use the Service, or the performance of the Service;

(c) any action taken in connection with an investigation by Therabody Parties or law enforcement authorities regarding your access to or use of the Service;

(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;

(e) any injury you sustain directly or indirectly as a result of your use of the Service or any products or services purchased through the Service;

(f) any errors or omissions in the Service’s technical operation; or

(g) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Therabody Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THERABODY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID THERABODY TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

15. Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY THERABODY (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF THERABODY.

16. Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission).  The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice.  You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.

17. General Provisions

A. Therabody’s Consent or Approval.  As to any provision in these Terms or any Additional Terms that grant Therabody a right of consent or approval, or permits Therabody to exercise a right in its “sole discretion,” Therabody may exercise that right in its sole and absolute discretion.  No opt-in consent or approval may be deemed to have been granted by Therabody without being in writing and signed by an officer of Therabody.   

B. Indemnity.  You agree to, and you hereby, defend, indemnify, and hold Therabody Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Therabody Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Therabody Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by Therabody Parties in the defense of any Claims and Losses.  Notwithstanding the foregoing, Therabody Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  Therabody Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Therabody Party.

C. Operation of Service; Availability of Products and Services; International Issues.  The Service is operated in the United States, and is primarily intended for users located in the U.S.  Therabody makes no representation that the Service is appropriate or available for use beyond the U.S.  If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.

D. Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”.  The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

E. Communications.  As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

F. Investigations; Cooperation with Law Enforcement; Termination; Survival.  Therabody reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Therabody in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to Therabody under these Terms or any Additional Terms.  Upon suspension or termination of your access to the Service, or upon notice from Therabody, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.  The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Therabody in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

G. Assignment.  Therabody may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Therabody.

H. No Waiver.  Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Therabody in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  For avoidance of doubt, nothing herein shall be construed to restrict Therabody’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.

I. California Consumer Rights.  Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254.  Their website is located at: http://www.dca.ca.gov.

J. Connectivity.  You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.

18. Terms Applicable For Apple Device Users

If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):

(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Therabody and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.

(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.

(iii) You acknowledge that Therabody, and not Apple, is responsible for providing the Service and Content thereof.

(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.

(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.

(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Therabody, Therabody and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.

(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.

(x) You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

19. Terms Applicable For SMS Subscribers

1. By signing up via text, you agree to receive recurring automated promotional and personalized marketing text messages (e.g. cart reminders) from Therabody at the cell number used when signing up. Consent is not a condition of any purchase. 

2. You can cancel the SMS service at any time. Just text "STOP" to the short code. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. 

3. If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at info@therabody.com. 

4. Carriers are not liable for delayed or undelivered messages. 

5. As always, message and data rates may apply for any messages sent to you from us and to us from you. Msg frequency varies. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. 

If you have any questions regarding privacy, please read our privacy policy: https://www.therabody.com/us/en-us/privacy-and-security/privacy-policy.html