Effective June 28, 2017
Welcome to Lymber Wellness! Through Lymber Wellness you can find and book openings with many kinds of fitness and personal wellness facilities in your area (the “Services”). These include Classes and other activities (“Classes” or “Class”) with fitness studios, gyms, trainers, and many other parties who work with us to make their Classes and facilities available to members of the Services (“Venues“). You take advantage of these Services through the use of the Lymber Wellness mobile application and website and the content and products made available thereon (collectively and individually, the “App“).
a) Acceptance of Terms. By accessing and/or using the App, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the App.
b) Amendment of Terms. MINDBODY may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the App after such posting constitutes your consent to be bound by the Terms, as amended.
c) Additional Terms. In addition to these Terms, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms are hereby incorporated by reference into the Terms, provided that in the event of any conflict between such additional terms and the Terms, the Terms shall control.
2. Services Platform.
a) Services Platform. The Services are free to utilize. MINDBODY does not independently offer or control any Classes; rather, it serves as a connection between you and the Venues. Once you book a Class, your ongoing relationship is between you and the Venue. Venues pay a fee to MINDBODY, which allows MINDBODY to offer the Services to you free of charge.
b) Offered Classes. MINDBODY reserves the right to change from time to time the Venues and Classes that are available on the App, and we don’t make any representations or warranties regarding the accuracy or content of the Apps with respect to the Classes or Venues, which may change in type, quantity, and availability. We reserve the right to modify or terminate any or all of our offerings at any time.
c) Promotional Offers. We may offer special promotions with differing conditions and limitations. We reserve the right to modify, terminate or otherwise amend our offered promotions.
d) Use of Services. Venues you book through the Services will have their own policies as to the transferability of your bookings. You agree to handle all questions regarding transferability directly with the Venues. We reserve the right to, and by using our service you agree that we may, include you in or exclude you from these test without notice.
e) Cancellations and Refunds. You will book Classes through the use of the Services. Therefore, payment is made through the App, and you authorize any charges to any credit card or other payment method (“Payment Method”) that you use with the App. Our policies regarding cancellation and refunds are found here [hyperlink this or insert our cancellation and refund policies].
f) Price Changes. Venues reserve the right to adjust pricing at any time before you book a Class.
g) Payment Methods. You may edit your payment method information by logging into your account and editing it under “My Account” and then “Settings”. If a payment is not successfully settled, you nonetheless will remain responsible for any uncollected amounts. If we cannot charge your Payment Method, we reserve the right, but are not obligated, to terminate your access to our App or any portion thereof.
h) Reservation and Cancellation of Classes. You must reserve and cancel Classes only through the App. It is a breach of the Terms if you reserve or cancel directly with a Venue, including through any online or mobile account you have with a Venue. If you reserve or cancel directly with such Venue, we reserve the right to charge you the full amount that the Venue charges for such class and/or any applicable cancellation fees.
3. Other Fees.
a) Fees Charged by Venues. In addition to fees we charge, some of the Venues may also charge equipment or other amenity fees that you will be responsible for directly. For example, some Venues might charge extra to rent some of the equipment you need for a Class. Further, the Services only gives you access to the Class for which you signed up on the App (and at the specified time and location). The Venue may have additional fees for use of additional Classes or spaces.
b) Third Party Fees for Using the Services. You are also responsible for all third party charges and fees associated with connecting and using the App, including fees such as internet service provider fees, telephone and computer equipment charges, sales tax and any other fees necessary to access the App.
4. Termination or Modification by MINDBODY.
MINDBODY reserves the right to modify or terminate your membership if you breach any of these Terms. These remedies are in addition to any other remedies MINDBODY may have at law or in equity.
5. Eligibility; Registration Information and Password; App Access.
a) Eligibility Criteria. You must be 18 years of age or older to use the App or access the Services.
b) Subscribing Organizations. If you are using or opening an account on behalf of a company, entity, or organization (a “Subscribing Organization”), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.
c) Account Information. You agree that the information you provide to MINDBODY at registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account.
7. Prohibited Uses.
As a condition of your use of the App, you will not use the App for any purpose that is unlawful or prohibited by these Terms. You may not use the App in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the App. You may not attempt to gain unauthorized access to the App, or any part of the App, other accounts, computer systems or networks connected to the App, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the App.
MINDBODY reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
8. Ownership; Proprietary Rights.
a) If you provide MINDBODY with any comments, bug reports, feedback, or modifications proposed or suggested by you to the App (“Feedback”), MINDBODY shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the App. You hereby grant MINDBODY a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
b) The App is owned and operated by MINDBODY. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the App (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of the United States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the App are the copyrighted property of MINDBODY or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to MINDBODY or its affiliates and/or third-party licensors. Except as expressly authorized by MINDBODY, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
Except as explicitly stated otherwise, legal notices will be served, with respect to MINDBODY, on MINDBODY’s national registered agent, and, with respect to you, to the email address you provide to MINDBODY during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three days after the date of mailing.
10. Electronic Signatures and Agreements.
You acknowledge and agree that by clicking on the button labeled “CONFIRM PURCHASE,” “SUBMIT”, “DOWNLOAD”, “PLACE MY ORDER”, “I ACCEPT” or such similar links as may be designated by MINDBODY to accept the terms and conditions of these Terms, you are submitting a legally binding electronic signature and are entering into a legally binding contract.
11. Disclaimers; No Warranties.
CLASSES, ACTIVITIES, AND OTHER UNRELATED PRODUCTS AND SERVICES OFFERED VIA THE APP ARE OFFERED AND PROVIDED BY THIRD PARTIES (AND THE DESCRIPTIONS OF THE FOREGOING POSTED ON THE APP ARE PROVIDED BY SUCH THIRD PARTIES), NOT MINDBODY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YOUR ATTENDANCE AT AND PARTICIPATION IN THESE CLASSES, ACTIVITIES, AND YOUR USE OF THESE UNRELATED PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE APP, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. MINDBODY IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
THE APP AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MINDBODY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, MINDBODY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE APP AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APP AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE APP AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE APP IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS SET FORTH IN THESE TERMS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Waiver and Release.
You understand that MINDBODY is not a gym or fitness studio or other service provider and the Classes you take or services you use are operated and delivered by the applicable Venue and not by MINDBODY. Although MINDBODY endeavors to offer inventory that is of high quality, MINDBODY is not responsible for the quality of any class or service. You understand that there are certain inherent risks and dangers in exercising and that the Classes you may attend offer a range of activity and intensity level. By signing up for a Services membership, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns that you are aware of these risks which include, but are not limited to, property damage, illness and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any class or service is appropriate for you. You also understand and agree that the App offers health and fitness information that is designed for informational, educational and entertainment purposes only. The use of any of the information provided on the App is solely at your own risk.
Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless MINDBODY, its parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages and liabilities arising out of or in any way related to your participation in or use of your Services membership or the App, including with respect to bodily injury, physical harm, illness, death or property damage.
13. Indemnification; Hold Harmless.
You agree to indemnify and hold MINDBODY, its affiliated companies, and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your misuse of the App, violation of these Terms, violation of the rights of any other person or entity, or any breach of your representations, warranties, and covenants set forth in these Terms.
14. Limitation of Liability and Damages.
UNDER NO CIRCUMSTANCES WILL MINDBODY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, MINDBODY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
MINDBODY’ LIABILITY TO YOU IS LIMITED TO $500 OR THE AMOUNTS, IF ANY, PAID BY YOU TO MINDBODY UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Venue Waivers and Terms.
Members taking Classes or attending a gym are deemed to agree to the liability waivers of individual Venues. Your participation in any class or service may be subject to addition policies, rules or conditions of the applicable Venue and you understand and agree that you may not be permitted to reserve or attend Classes or services if you do not comply with these Terms or the policies of the Venues. If you have questions about a Venue’s waiver or other terms, please see the applicable Venue’s website or contact the Venue directly.
a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Utah, without regard to conflict of law provisions.
b) Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
d) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
e) Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and MINDBODY relating to the subject matter herein.
f) Claims; Statute of Limitations. YOU AND MINDBODY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Disclosures. The services hereunder are offered by MINDBODY, located at: 4051 Broad St #220, San Luis Obispo, CA 93401. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
h) Waiver. No waiver of any of these Terms by MINDBODY is binding unless authorized in writing by an executive officer of MINDBODY. In the event that MINDBODY waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of MINDBODY to enforce the same at a later time.
i) Force Majeure. MINDBODY will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond MINDBODY’s reasonable control.