Terms of Service
TERMS OF SERVICES
Last Updated: March 15, 2024
1. Introduction
These are the terms of use ("Terms of Use") for your use of services or features on the sites owned and controlled by Betterfit, including www.yourbetterfit.com and https://yourbetterfit.com (the "Sites"). We may add additional Sites from time to time as we expand our beauty offerings and these Terms of Use will govern those new Sites when added. You may be accessing our Sites from a computer or mobile phone device (through an iPhone application, for example) and these Terms of Use govern your use of our Sites and your conduct, regardless of the means of access.
BY USING THE SITES, YOU SIGNIFY YOUR AGREEMENT TO THESE TERMS OF USE, OUR PRIVACY POLICY AND OUR GUIDELINES AND RULES. IF YOU DO NOT AGREE WITH ANY OF THESE, YOU SHOULD NOT USE OUR SITES.
We also like to interact with you on third party sites where we post content or invite your feedback, such as https://www.facebook.com/Betterfit ("Third Party Sites"). Our Terms of Use and other areas of our Sites provide guidelines ("Guidelines") and rules and regulations ("Rules") in connection with our Interactive Services, including services that involve Third Party Sites, but Betterfit does not control those Third Party Sites, and these Terms of Use, our Guidelines and our Rules do not apply to companies that Betterfit does not own or control, or to the actions of people that Betterfit does not employ or manage. You should always check the terms of use posted on Third Party Sites.
By using the Sites, you signify your agreement to these Terms of Use, our Privacy Policy and our Guidelines and Rules, whether or not you have read them. Betterfit reserves the right to change or modify any of the terms and conditions contained in the Terms of Use, Guidelines and Rules from time to time at any time, without notice, and in its sole discretion. If Betterfit decides to change these Terms of Use, Betterfit will post a new version on the Sites and update the date set forth above. Any changes or modifications to these Terms of Use, Guidelines or Rules will be effective upon posting of the revisions. YOUR CONTINUED USE OF THE SITES FOLLOWING POSTING OF ANY CHANGES OR MODIFICATIONS CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS AND IF YOU DO NOT AGREE WITH THESE CHANGES OR MODIFICATIONS, YOU MUST IMMEDIATELY CEASE USING THE SITES. For this reason, you should frequently review these Terms of Use, our Guidelines and Rules and any other applicable policies, including their dates, to understand the terms and conditions that apply to your use of the Sites.
2. Copyright
All design, text, graphics, logos, button icons, images, audio and video clips, the selection and arrangement thereof, and all software on the Sites is Copyright (c) 2018-2022 Betterfit, ALL RIGHTS RESERVED. The compilation (meaning the collection, arrangement and assembly) of all content on the Sites is the exclusive property of Betterfit and protected by U.S. and international copyright laws. All software used on the Sites is the property of Betterfit or its software suppliers and is protected by U.S. and international copyright laws. Permission is granted to electronically copy and to print in hard copy portions of the Sites for the sole purpose of placing an order with Betterfit, using the Interactive Services or using the Sites as a shopping resource. Any other use of materials on the Sites - including reproduction for purposes other than those permitted above, modification, distribution, republishing, transmission, display or performance - without the prior written permission of Betterfit is strictly prohibited.
3. Trademarks
yourbetterfit.com and all page headers, custom graphics and button icons are service marks, trademarks, and/or trade dress of Betterfit and may not be used in connection with any product or service that is not offered by Betterfit in any manner that is likely to cause confusion among customers. All other trademarks, product names and company names or logos cited herein are the property of their respective owners.
4. Product Information
The products displayed on the Sites can be ordered and delivered only within the U.S. and certain select countries. See the International Shipments section of yourbetterfit.com for more information. Betterfit products displayed on the Sites may be available in select Betterfit retail stores in the U.S. and certain foreign markets. All prices displayed on yourbetterfit.com are quoted in U.S. Dollars and are valid and effective only in the U.S. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Betterfit.
All material and information presented by Betterfit and its products is intended to be used for personal educational or informational purposes only. The statements made about products have not been evaluated by the U.S. Food and Drug Administration and the results reported, if any, may not necessarily occur in all individuals. The statements and products sold through Betterfit are not intended to diagnose, treat, cure or prevent any condition or disease. If any minor uses any goods or product from Betterfit it should be only after the legal or parental guardian has discussed the product with the minor's doctor.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. To reduce irritation, keep it clean, keep it dry, don’t wear it too tight, and give your wrist a rest by removing the band for an hour after extended wear. If you notice any skin irritation, soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after wearing the product, remove your device and please discontinue use. If any symptoms persist longer than 2-3 days after removing the device, consult your doctor. Before charging your device, make sure both watch and charger are completely dry. If charging your device causes unusual heat, please unplug the charging chord and keep it away from any heat sensitive material.
All products should be used strictly in accordance with their materials, precautions and guidelines. You should always check the ingredients for products to avoid potential allergic reactions. Use of the Sites is not meant to serve as a substitute for professional medical advice: these Sites are solely online stores for specialty products. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information received from the Sites before using or relying on them. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. Betterfit does not give or intend to give any answers to medical related questions and these Sites do not replace any medical professional or medical resource. Betterfit does not represent itself as a physician nor is this implied. No prescription medications or medical treatments are intentionally provided on the Sites. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.
The products available on the Sites and the Interactive Services, including any samples Betterfit may provide to you, are for your personal use only. You may not sell or resell any products you purchase or otherwise receive from Betterfit. Betterfit reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms of Use, as determined by Betterfit in its sole discretion.
Except where prohibited by law, Betterfit may limit the number of products available for purchase. Specifically, clients may be limited to the purchase of 1 Dyson branded item and 3 Chanel branded items per sku per transaction.
5. Color Information
While Betterfit has tried to accurately display the colors of products, the actual colors you see will depend on your monitor and may not be accurate.
6. Responsibility for your Content
You are solely responsible for all content that you upload, post, email or otherwise transmit via or to the Sites, through our Interactive Services or otherwise, including the submission of product ratings and reviews and all other data, profile information, documents, text, software, applications, music, sound, photographs, graphics, video, messages, forum postings, comments, questions, answers or other materials (collectively, "Content"). We will not accept Content from you unless you are a registered user of the Sites.
7. Your Use of Content on the Sites and Limitation of Liability
Betterfit provides the Sites and the Interactive Services and all other applications and services on the Sites as a forum only. Betterfit is not liable for any statements, representations, or Content provided by its users in any public forum on the Sites or any Third Party Site, including without limitation through the Interactive Services. Any Content, if displayed, is displayed for entertainment and informational purposes only. More generally, Content posted via or on the Sites or any Third Party Site, including through the Interactive Services, is not controlled by Betterfit. Betterfit cannot guarantee the accuracy, integrity or quality of such Content. You understand that by using the Interactive Services, you may be exposed to Content that may be offensive, indecent or objectionable and Betterfit shall not be liable for any such Content and that the risk of harm or damage from the foregoing rests entirely with you. Under no circumstances will Betterfit be liable in any way for any Content, including, but not limited to, for (i) any errors or omissions in any Content; or (ii) any loss or damage (including, without limitation, personal injury or property damage) of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via or to the Sites or through the Interactive Services. The preceding sentence does not apply to New Jersey residents.
You may access the Content and any other content on the Sites only as permitted under these Terms of Use and the Privacy Policy and you agree to not engage in the use, copying or distribution of any of the Content other than as expressly provided herein.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use of any Content or enforce limitations on use of the Site or the Content therein. You may not interfere with or disrupt the Sites, or servers or networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites, including by using any device, software or routine to bypass robot exclusion headers. Betterfit reserves all rights not expressly granted in and to the Content. When using the Interactive Services, you may not disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges.
8. Your Content Submissions
By submitting Content to Betterfit, you represent and warrant that:
♦ You understand you are participating in a public forum and that your Content will be available to all other users of the Sites, the Interactive Services and potentially Third Party Sites;
♦ You are the sole author and owner of the intellectual property and other rights thereto (or have the necessary licenses, rights, consents and permissions to use and provide a non-exclusive license to Betterfit to use all intellectual property and other rights thereto to enable inclusion and use of the Content in the manner contemplated by the Sites and these Terms of Use);
♦ You understand that your Content may be utilized and distributed by Betterfit in its marketing materials, including but not limited to, yourbetterfit.com, Betterfit emails, social channels, and store materials;
♦ You shall comply with the Federal Trade Commission’s Guides on the Use of Endorsements and Testimonials in Advertising. Without limiting the generality of the foregoing, this means that if you received compensation in any form (including free product) or any other incentive (such as an entry in a sweepstakes or contest or a coupon) in exchange for posting content on Betterfit's sites or channels (including but not limited to product reviews, Q&A, photographs, and social channels), then you must disclose this in your posting. All disclosures must be made clearly and conspicuously;
♦ All "moral rights" that you may have in such Content have been voluntarily waived by you and you do not require that any personally identifying information be used in connection with the Content that you submit, or any derivative works of or upgrades or updates thereto;
♦ All Content that you post is accurate;
♦ You are at least 13 years old and, if you are a minor, that you have obtained the consent of your parent or legal guardian to use the Site and agree to these Terms of Use;
♦ and that use of the Content you supply does not violate these Terms of Use and will not cause injury to any person or entity.
You also represent and warrant that any Content you submit:
♦ Is not false, inaccurate or misleading;
♦ Does not harm minors;
♦ Does not infringe any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any person or entity;
♦ Does not violate any obligations you may have with respect to such Content under any law or under contractual or fiduciary relationships (such as, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
♦ Does not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
♦ Is not, or would not reasonably be considered to be, unlawful, harmful, defamatory, trolling, bullying, libelous, vulgar, obscene, invasive of another's privacy, hateful, racially or religiously biased or offensive, abusive, tortious, threatening or harassing to any individual, partnership or corporation;
♦ Is not submitted for compensation or other consideration from any third party;
♦ does not include any information that references other websites, addresses, email addresses, contact information or phone numbers;
♦ Complies in all respects with these Terms of Use, our Privacy Policy and all Guidelines and Rules;
♦ Is not a form of phishing and does not contain unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; and
♦ Does not contain any computer viruses, worms or other potentially damaging computer programs or files.
Betterfit does not endorse any Content or any opinion, recommendation or advice expressed therein, and Betterfit disclaims all liability with respect to the Content posted by third parties.
If your Content includes ideas, suggestions, documents or proposals to Betterfit through the Interactive Services, (a) such Content is not confidential or proprietary and Betterfit has no obligation of confidentiality, express or implied, with respect thereto; (b) Betterfit may have something similar to that Content already under consideration or development; and (c) you are not entitled to compensation, payment or reimbursement of any kind for such Content from Betterfit under any circumstances unless you are otherwise notified by Betterfit in writing.
For any Content that you submit, you grant Betterfit a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sublicenseable and transferable right and license to use, reproduce, communicate, distribute, copy, modify, delete in its entirety, edit, adapt, publish, translate, publicly display, publicly perform, use, create derivative works from and/or sell and/or distribute such Content and/or incorporate such Content into any form, medium or technology whether now or hereafter known throughout the world without compensation to you. This license will survive the termination of these Terms of Use and your use of the Site.
9. Guidelines for Interactive Services
We want to know what you think of the products you've tried, bought, know and love and we encourage you to use our Interactive Services. When writing a review for the RR Service, posing a question on the Q&A Service please consider the following guidelines:
♦ Focus on the product and your individual experience using it;
♦ Provide details about why you like or dislike a product; and
♦ All submitted reviews, comments and questions are read by our moderators and are subject to these Terms of Use.
You may not use our Interactive Services to impersonate any person or entity, including, without limitation, any Betterfit official, forum leader, guide or host, or to falsely state or otherwise misrepresent your affiliation with a person or entity. You may not use the Interactive Services to collect or store personal data about other users.
Your review will be excluded or withdrawn if it violates Guidelines or the provisions in these Terms of Use regarding submission of Content generally.
10. Third Party Content and Third Party Sites
Betterfit may provide content of third parties ("Third Party Content") or links to Third Party Sites as a service to those interested in this information. Betterfit does not monitor, approve or have any control over any Third Party Content or the Third Party Sites and the inclusion of links to Third Party Content or Third Party Sites does not imply any association or relationship between Betterfit and such third party. Betterfit does not guarantee, endorse or adopt the accuracy or completeness of any Third Party Content or any Third Party Site. Betterfit is not responsible for updating or reviewing Third Party Content or Third Party Sites. You use Third Party Content and Third Party Sites at your own risk. Third Party Content, including comments from third party users submitted to Betterfit through the Interactive Services, do not necessarily reflect the views of Betterfit.
11. Mobile Services
If you access the Sites via your mobile phone (through an iPhone application, for example), we do not currently charge for this access. Please be aware that your carrier's normal rates and fees, such as text messaging fees or data charges, will still apply.
12. Modification of Content
All Content that you submit is not confidential and may be used at Betterfit's sole discretion. Betterfit may or may not pre-screen Content. However, Betterfit and its designees will have the right (but not the obligation) in their sole discretion to pre-screen, change, condense or delete any Content on the Sites. In particular, Betterfit and its designees will have the right to remove any Content that Betterfit deems, in its sole discretion, to violate the Guidelines, or any other provision of these Terms of Use. Betterfit does not guarantee that you will have any recourse through Betterfit to edit or delete any Content you have submitted. Betterfit reserves the right to incorporate any Content you have submitted into any account you may have, now or in the future, as a registered user of the Sites. Ratings, written comments, questions and answers are generally posted within two to four business days. However, Betterfit reserves the right to remove or to refuse to post any submission for violation of any relevant terms or guidelines. You acknowledge that you, not Betterfit, are responsible for the contents of any Content you submit. None of the Content that you submit shall be subject to any obligation of confidence on the part of Betterfit, its agents, subsidiaries, affiliates, partners or third-party service providers and their respective directors, officers and employees.
13. Reservation of Rights
Betterfit reserves the right, at any time, without notice and in its sole discretion, to terminate your license to use the Interactive Services and the Sites and to block or prevent your future access to and use of the Interactive Services and the Sites. Betterfit may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce these Terms of Use, (iii) respond to claims that any Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Betterfit (and its employees), its users and the public.
14. Disclaimer of Warranties
Betterfit IS PROVIDING THE SITES, THEIR CONTENTS AND THE INTERACTIVE SERVICES ON AN "AS-IS" BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITES OR INTERACTIVE SERVICES, THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS, INCLUDED ON THE SITES OR AS PART OF THE INTERACTIVE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, Betterfit DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING FOR EXAMPLE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, Betterfit DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITES OR THE INTERACTIVE SERVICES IS ACCURATE, COMPLETE OR CURRENT. Please note that some jurisdictions may not allow the exclusion of implied warranties and conditions, so some of the above exclusions may not apply to you but shall apply to the maximum extent permitted by applicable laws. Price and availability information is subject to change without notice.
15. Disclaimer of Liabilities
Betterfit WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITES OR THE INTERACTIVE SERVICES. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. This provision does not apply to New Jersey residents.
15. Enforcement of Refunds
You agree to handle any requests for reimbursement or refunds with Betterfit directly. Any unauthorized attempt to refund through credit/debit card chargebacks or Paypal disputes will be met with legal action in pursuit of damages.
16. Indemnification
You agree to defend, indemnify and hold harmless Betterfit (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages including reasonable legal fees, arising out of (a) your misuse of the Sites and the Interactive Services; (b) your violation of any term of these Terms of Use; (c) a breach of your representations and warranties set forth above regarding Content; (d) your violation of any law or the rights of a third party (including, without limitation, any copyright, property or privacy right); or (e) any claim that any Content you submitted caused damage to a third party. This indemnification obligation will survive the termination of these Terms of Use and your misuse of the Sites and the Interactive Services.
17. DMCA
If you believe your work or content has been copied and posted to the Sites in a way that constitutes copyright infringement, please provide Betterfit's designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the "DMCA"):
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed upon;
• A description of where the material that you claim is infringing is located on the Sites;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• Your name, address, telephone number and email address (if available); and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
Betterfit's DMCA designated copyright agent for notice of claims of copyright infringement on the Sites is our General Counsel, Craig Moyer, who can be reached at: E-mail: support@yourbetterfit.com
18. Fraud Protection Program
As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If such is the case, we may reject your order or our Customer Service department may call you at the phone number you provided (or use your email address) to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
19. Waiver
No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Betterfit's failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
20. English Language
It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C'est la volonté expresse des parties que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
21. Dispute Resolution
If a dispute should arise between you and Betterfit, we want to provide you with a resolution that is efficient and cost effective by using our customer service team. Almost all customer service disputes can be resolved to the customer’s satisfaction by using our customer service, reachable by sending an email to support@yourbetterfit.com
If your dispute cannot be resolved using our customer service team, these Terms describe how we shall proceed with the resolution of the dispute.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND Betterfit AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES AND THE INTERACTIVE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. The preceding sentence does not apply to New Jersey residents.
22. Agreement to Arbitrate Disputes
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
IF YOU ARE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
WE BOTH AGREE TO ARBITRATE: You and Betterfit agree to resolve any claims relating to these Terms through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate Betterfit's intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Betterfit may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision.
Arbitration under this agreement shall be held in the United States county where you live or work, Nevada, or any other location we mutually agree to, subject to Nevada law. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and Betterfit, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Betterfit.
NO CLASS ACTIONS: You may only resolve disputes with us 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 are not allowed.
WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Betterfit in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Betterfit WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing Betterfit at support@yourbetterfit.com and providing the requested information as follows: (1) Your Name; (2) the URL of Terms of Use and Agreement to Arbitrate Disputes; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms of Use. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms of Use by using the website.
23. Choice of Law/Forum Selection
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of Nevada, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Carson City, Nevada.
24. Severability
The provisions of these Terms of Use are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision is found to be partially or wholly invalid, illegal or unenforceable, such provision shall be modified or restricted to the extent and in the manner necessary to render it valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by Betterfit, or alternatively, by disposition of an arbitrator or a court of law. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from the Terms of Use without affecting the validity, legality or enforceability of any of the remaining provisions.
25. Precautions
Content found on yourbetterfit.com or through the Betterfit Services is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You should always consult a physician before starting a fitness program, changing your diet or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Betterfit Services. You should consult with your physician before following any training instructions you receive through the Betterfit Services or participating in any event announced on or through the Betterfit Services. Not all exercises or activities described on the Betterfit Services are suitable for everyone. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. People who have Type 1 diabetes or other adverse medical or nutritional conditions should not use the Betterfit Services unless such use is directed and closely monitored by a physician. By using the Betterfit Services, you represent that you have received consent from your physician to participate in the programs, workouts, and exercises described on the Betterfit Services.
We are not responsible for any health problems that may result from training programs, products, or events you learn about through the Betterfit Services. If you engage in any exercise program you receive or learn about through the Betterfit Services you agree that you do so at your own risk and are voluntarily participating in these activities.
26. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Betterfit is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of Betterfit products.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at support@yourbetterfit.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Betterfit's principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.