Terms Of Service – BodiMetrics (BM)
BM designs products and tools that track everyday health and fitness to empower and inspire users to lead healthier, more active lives. These Terms of Service (“Terms”) govern your use of our personal fitness and electronic body monitoring products, our websites, including www.bodimetrics.com, the software embedded in BM devices, the BM Connect software, the BM mobile applications, memberships and other BM services (collectively, the “BodiMetrics Service”).
You must accept these Terms to create a BM account and to use the BM Service. If you do not have an account, you accept these Terms by visiting www.bodimetrics.com or using any part of the BM Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.bodimetrics.COM OR — USE THE BM SERVICE.
These Terms May Change
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.bodimetrics.com. We will notify you by email, through the BM Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the BM Service after a modification is posted, you are telling us that you accept the modified terms.
Who Can Use BM?
You may use the BM Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the BM Service using a device that is manufactured, distributed, or sold by or on behalf of BM; the BM mobile applications; the BM Connect software; approved third-party applications; or www.bodimetrics.com (“Authorized Connections”). You may not connect to the BM Service with any device that is not manufactured, distributed, or sold by or on behalf of BM (such as a knock off or counterfeit version of a BM Product); otherwise intends to resemble or purports to be a BM Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the BM Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact email@example.com.
Creating an Account
Full use of the BM Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. BM is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the BM Service. These communications are part of the BM Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Full use of the BM Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the BM Service and it is your responsibility to ensure the equipment’s functionality.
Posting Your Content On The BM Service
You may post photos, exercise regimens, food logs, recipes, comments, and other content (“Your Content”) to the BM Service. You retain all rights to Your Content that you post to the BM Service. By making Your Content available on or through the BM Service you grant to BM a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the BM Service.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the BM Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You also agree that Your Content will comply with the following community guidelines:
Be respectful of the opinions of others. Even though you might not agree with someone, that doesn’t mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return.
- Do not post profane or explicit content.
- Do not post profile pictures that might be considered inappropriate.
- Do not post communications that could be interpreted as threatening or harassing.
- Do not post, advertise, or promote products or services commercially.
“BM Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the BM Service to you. Except for Your Content, BM Content, the BM Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the BM Service.
What You Can Do On The BM Service
The BM Service is intended for your personal, non-commercial use.
BM grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the BM Content, (2) access and use the software and mobile applications provided by the BM Service, and (3) use the software that is embedded into BM products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the BM Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the BM Content, BM Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by BM or its licensors, except for the licenses and rights expressly granted in these Terms.
Things You Cannot Do On The BM Service
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the BM Service: (1) use, display, mirror or frame the BM Service or any individual element within the BM Service, BM name, any BM trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without BM express written consent; (2) access or tamper with non-public areas of the BM Service, BM computer systems, or the technical delivery systems of BM providers; (3) test the vulnerability of any BM system or breach any security or authentication measures; (4) circumvent any technological measure implemented by BM or any of BM providers or any other third party (including another user) to protect the BM Service or BM Content; (5) access the BM Service or BM Content through the use of any mechanism other than through the use of an Authorized Connection, BM Service or BM API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that BM provides to you or any other part of the BM Service.
Our Enforcement Rights
We are not obligated to monitor access or use of the BM Service, BM Content, or Your Content or to review or edit any BM Content or Your Content, but we have the right to do so for the purpose of operating the BM Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the BM Service, any BM Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the BM Content, Your Content, or your use of the BM Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the BM Service.
Use The BM Service At Your Own Risk
Our goal is to provide helpful and accurate information on the BM Service, but we make no endorsement, representation or warranty of any kind about any BM Content, information, services or recommendations. The accuracy of the data collected and presented through the BM Service is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the BM Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any BM Content or the BM Service, you do so solely at your own risk.
Consult Your Doctor Before Using The BM Service
The BM Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the BM Service, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the BM Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the BM Service. If you engage in any exercise program you receive or learn about through the BM Service you agree that you do so at your own risk and are voluntarily participating in these activities.
BM products technology have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use if you (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders.
Use Common Sense
Use of the BM Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your BM product.
BM respects copyright law and expects its users to do the same. It is BM policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see BM Copyright Policy.
Additional Policies Apply To Product Orders
BM Terms of Sale and Return Policy and Warranty apply to purchases made through the BM store at www.bodimetrics.com. All orders placed are subject to BM acceptance. We may accept, decline, or place limits on your order for any reason.
Feedback And Submissions Policy
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by BM, or obtained from sources other than you. Our Feedback and Submissions Policy is also part of the Terms.
- Terms Specifically Related to BM Membership
- Additional terms and conditions apply to BM membership.
Contests And Giveaways
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by BM and its partners. It is your responsibility to carefully review those terms and conditions.
You Agree to Receive Alerts And Notifications
As part of your use of the BM Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
We Are Not Responsible For Third-Party Links On The BM Service
The BM Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under BM control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
BM Does Not Control Third-Party Services That You Link With Your BM Account
Changes To The BM Service
BM may change or discontinue, temporarily or permanently, any feature or component of the BM Service at any time without notice. BM is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the BM Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by BM products without prior notice to you.
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support. Upon any termination, discontinuation or cancellation of the BM Service or your account, the following provisions of these Terms will survive: Posting Your Content On The BM Service; BM Rights; Our Enforcement Rights; Consult Your Doctor Before Using The BM Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
THE BM SERVICE AND BM CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the BM Service or BM Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the BM Service or any BM Content. You acknowledge and agree that if you rely on any BM Content or the BM Service, you do so solely at your own risk.
You will indemnify and hold harmless BM and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the BM Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER BM, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE BM SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE — USE OF OR INABILITY TO — USE THE BODIMETRICS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BODIMETRICS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL BM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE — USE OF OR INABILITY TO — USE THE BM SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO BM FOR — USE OF THE BM SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BM, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BM AND YOU.
You agree that any dispute between you and BM arising out of or relating to these Terms of Service, the BM Service, or any other BM products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against BM, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or BM may bring a formal proceeding.
We Both Agree To Arbitrate: You and BM agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Los Angeles, California, or any other location we agree to.
Exceptions to Agreement to Arbitrate: Either you or BM may assert claims, if they qualify, in small claims court in Los Angeles (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the BM products or BM Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with BM on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and BM agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Los Angeles County, California. Both you and BM consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the BM products or BM Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between BM and you regarding the BM Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between BM and you regarding the BM Service and BM Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without BM prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. BM may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by BM under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the BM Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
BM failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of BM. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Please contact us if you have any questions about these Terms.
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