U.S. TERMS OF SERVICE
Last Revised: January 2nd 2017
Handstand App, Inc. and its affiliates (“Handstand,” we,” “us,” or “our”) welcomes you to handstandapp.com, and Handstand’s other websites, online locations, and mobile applications (collectively, the "Sites").
Handstand provides an online marketplace through the Sites that connects independent personal trainers, fitness experts and other trainers (collectively, “Trainers”) who offer classes/sessions (each a “Workout”) with clients who seek to schedule Workouts with Trainers (“Clients”), a platform for Trainers to list information about themselves and the Workouts they offer and for Clients to schedule and pay for Workouts, and other services offered by Handstand through the Sites (collectively, the “Marketplace Services,” together with the Sites, the Content, defined below, and all features and functionality available through the Sites, the “Handstand Platform”). When used herein, the term “user” or “users” refers to Clients, Trainers, and any others that access, use or browse the Handstand Platform.
These Terms of Service together with any Supplemental Terms, defined below (collectively, these “Terms”) govern your access to, and use and browsing of the Handstand Platform.
YOUR SCHEDULING AND PARTICIPATION IN ANY WORKOUT IS SOLELY AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT HANDSTAND IS NOT A PARTY TO ANY WORKOUTS OR WORKOUT ARRANGEMENTS BETWEEN CLIENTS AND TRAINERS. YOU UNDERSTAND AND AGREE THAT TRAINERS ARE NOT EMPLOYEES, AGENTS, JOINT VENTURERS OR PARTNERS OF HANDSTAND. THE HANDSTAND PLATFORM SOLELY OFFERS A PLATFORM FOR TRAINERS AND CLIENTS TO CONNECT WITH ONE ANOTHER AND FOR CLIENTS TO ENGAGE TRAINERS DIRECTLY. HANDSTAND DOES NOT HIRE TRAINERS FOR CLIENTS. TRAINERS ACT EXCLUSIVELY ON THEIR OWN BEHALF AND NOT ON BEHALF OF HANDSTAND. HANDSTAND MAKES NO REPRESENTATIONS, WARRANTIES GUARANTEES, OR ENDORSEMENTS AS TO ANY TRAINER OR OTHER THIRD PARTY PRODUCTS OR SERVICES, THE COMPATIBILITY OF ANY CLIENT WITH ANY TRAINER, OR THE QUALITY, TIMING, LEGALITY OR OTHER ASPECT OF THE SERVICES OR PRODUCTS OFFERED OR DELIVERED BY TRAINERS, OR OTHERWISE RECOMMENDED, ADVERTISED, OR OFFERED ON OR THROUGH THE HANDSTAND PLATFORM. HANDSTAND MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO AMOUNTS TRAINERS MAY EARN THROUGH THE HANDSTAND PLATFORM, THE CONDUCT OF ANY CLIENT OR WORKOUT PARTICIPANT, THE SAFETY OR SUITABILITY OF ANY WORKOUT LOCATION, OR CLIENT OR TRAINER CANCELING ANY WORKOUT.
1. Acceptance of Terms of Service
3. Marketplace Services
4. Permitted Uses
5. User Content
6. Ownership and Proprietary Rights
7. Copyright Infringement Claims Policy
10. Suspension and Termination
11. Disclaimers and Limitations of Liability
12. Disputes with other Users
14. Notice Required by California Law
15. Arbitration, Governing Law and Dispute Resolution
16. Other Provisions
1. Acceptance of Terms of Service
These Terms may be revised or updated from time to time. Accordingly, you should check the Terms regularly for updates. You can determine when the Terms were last revised by referring to the "Last Revised" date at the top of this page. Each time you access, use or browse the Handstand Platform, you signify your acceptance of the then-current Terms.
Handstand may make changes to all content available on or through the Handstand Platform including, without limitation, text, brands, photographs, documents, graphics, audio, videos, logos, icons, images, media, data, charts, maps, software and other information and materials ideas, proposals, concepts, content, materials, works and deliverables (collectively, the “Content”), services or features of the Handstand Platform, and any other aspect of the Handstand Platform or any part or any of the foregoing, at any time. You understand and agree that Handstand may discontinue or restrict your use of all or any part of the Handstand Platform at any time for any reason or no reason and with or without notice.
Your access to or use of certain aspects of the Handstand Platform may be subject to additional terms, conditions, details and specifications, posted to the Handstand Platform, or may require you to agree with and accept additional terms and conditions ("Supplemental Terms"). By accessing or using those aspects of the Handstand Platform you are expressly agreeing to such Supplemental Terms. If there is a conflict between any part of these Terms and any Supplemental Terms, the Supplemental Terms will take precedence with respect to your access to or use of those aspects of the Handstand Platform.
In consideration of your use of the Handstand Platform, you represent that you are 18 years of age or older, or of an age to form a legal binding contract where you reside and you are that not prohibited from accessing or using the Handstand Platform or participating in any Workout under the laws of the United States or any other applicable jurisdiction.
3. Marketplace Services
Prior to using the Marketplace Services you must register an account with a username and password (“Account”). You agree to follow the on-screen instructions, and to complete the applicable forms and input information requested in connection with the registration process. You represent and warrant that the information you provide in connection with the registration process or as otherwise requested for the Account or in connection with use of the Marketplace Services will at all times be accurate, truthful, current and complete.
You agree to prevent anyone other than yourself from accessing or using the Account, and you agree to take all reasonable and appropriate security measures to prevent any unauthorized access or use of the Account or other breach of security relating to the Handstand Platform or data accessible through the Account. You agree to keep the Account username and password confidential and not to provide Account information to anyone else. You are fully responsible for all uses of the Account. Without limiting the foregoing, you are fully responsible for all statements made and acts or omissions that occur while your Account password is being used, whether by you or third parties. You shall log out of the Account at the end of each session. Handstand is authorized to act on instructions or information received through use of any Account and is not liable for any loss or damage arising from your failure to comply with this Section. You are solely responsible to keep backups of any content that you do not want deleted, modified or removed from your Account.
B. Marketplace Services for Clients
i. Scheduling Workouts
When logged into your Account you may schedule Workouts with Trainers. When scheduling a Workout you will be asked to specify the following (“Workout Selection”): (a) a class type for your Workout (e.g., boxing, yoga, pre/post natal, pilates, etc.), (b) the date and time for your Workout (“Workout Time”), (c) whether more than one (1) person will join the Workout (in addition to the Trainer) (“Workout Participants”), provided that no more than four (4) people may participate in a Workout; (d) a Trainer for your Workout; and (e) the location where your Workout will take place (“Workout Location”). As part of your Workout Selection, you also may have the option to provide the Trainer with additional information, such as preferences for your Workout. For your Workout Location you may select:
If you select a Self-Selected Workout Location, you represent and warrant that Self-Selected Workout Location is a safe and suitable location for the Workout and you or the other Workout Participants are authorized to host the Workout in such location.
If you select a Partner Gym you can obtain access to the Partner Gym by providing your name to the Partner Gym, and you may be required to sign a release provided by the Partner Gym. You may only use the Partner Gym for the purposes of your Workout and may not otherwise use any of the Partner Gym’s facilities or equipment.
After submitting your Workout Selection, the Trainer you selected will be notified of your selections and will have the option of accepting or denying the Workout. If the Trainer agrees to the Workout, you will receive a notification of the Trainer’s acceptance (“Trainer’s Acceptance”). If the Trainer you select is not available or does not agree to the Workout, Handstand will select another Trainer and upon the replacement Trainer’s Acceptance, will send you an email regarding the change in Trainer and the replacement Trainer’s Acceptance. If you do not cancel your Workout, your Workout will remain scheduled with the replacement Trainer.
Client agrees, and shall cause each Workout Participant in a Workout scheduled by Client to agree, to be bound by all obligations and all terms and conditions that apply to Client under these Terms, provided that only Client will have the obligation to make payments for the Workout and only Client will have the right to schedule and cancel Workouts or cancel Client’s subscription for any Membership Plan, defined below. Client acknowledges and agrees that only individuals who agree to the foregoing may participate in Workouts. Client shall be fully responsible and liable for each Workout Participant's breach of these Terms. Client agrees that upon request, Client shall disclose to Handstand the name and contact information for each Workout Participant. Client shall immediately notify Handstand if Client becomes aware of any breach of these Terms by Client or any Workout Participant.
ii. Fees and Payments
Clients will have the option to subscribe to a monthly membership plan where the Client will be charged a monthly fee for a pre-selected number of Workouts per month (“Membership Plan”) or to schedule and pay for a single Workout (“Single Workout Option”). You also may be charged additional fees for: (a) Workouts that consist of more than one participant (apart from the Trainer), and (b) for choosing a Partner Gym as the Workout Location. The fees for the Single Workout Option or Membership Plan that you select, as well as additional described in the preceding sentence, will be displayed when you checkout (collectively, the “Fees”).
If you subscribe to a Membership Plan you will have until the end of the billing period (the one-month period after your subscribing to the Membership Plan and each one-month period starting on the one-month anniversary of your subscription thereafter) (each a “Billing Period”) to complete your pre-selected number of Workouts for that Billing Period. You will not be provided with any refund or credits for failing to use your pre-selected number of Workouts within the applicable Billing Period.
AUTOMATIC RECURRING MONTHLY CHARGES: IF YOU SUBSCRIBE TO A MEMBERSHIP PLAN, THE MEMBERSHIP PLAN THAT YOU SELECT WILL CONTINUE MONTH-TO-MONTH UNTIL YOU CANCEL YOUR MEMBERSHIP PLAN (AS EXPLAINED IN THE NEXT SECTION) OR HANDSTAND TERMINATES THE MEMBERSHIP PLAN OR YOUR ACCESS TO THE HANDSTAND PLATFORM. UNTIL SUCH TIME, YOU WILL BE CHARGED FEES FOR YOUR MEMBERSHIP PLAN ON A RECURRING MONTHLY BASIS (“MEMBERSHIP PLAN MONTHLY FEE”). BY PURCHASING A MEMBERSHIP PLAN, YOU AUTHORIZE HANDSTAND TO CHARGE THE RECURRING MEMBERSHIP PLAN MONTHLY FEE , AND ANY OTHER CHARGES YOU MAY INCUR IN CONNECTION WITH THE ACCOUNT, AT THE THEN CURRENT RATE TO YOUR PAYMENT METHOD ON FILE WITHOUT FURTHER AUTHORIZATION. TO AVOID BEING CHARGED THE MEMBERSHIP PLAN MONTHLY FEE, YOU MUST CANCEL YOUR MEMBERSHIP PLAN PRIOR TO THE COMMENCEMENT OF THE NEXT BILLING PERIOD. YOU ACKNOWLEDGE THAT THE AMOUNT YOU ARE CHARGED EACH MONTH MAY VARY FROM MONTH TO MONTH FOR REASONS THAT MAY INCLUDE PROMOTIONAL OFFERS AND/OR CHANGES YOU MAKE TO YOUR MEMBERSHIP PLAN. YOU AUTHORIZE HANDSTAND TO CHARGE YOUR PAYMENT METHOD ON FILE FOR SUCH VARYING AMOUNTS.
Handstand may increase any Fees at any time, with at least thirty (30) days’ notice to Client, provided that: (a) Clients who subscribe to a Membership Plan may cancel the subscription to their Membership Plan within such notice period or otherwise as provided in the next section; and (b) any increase in Fees will not impact Workouts that are already scheduled through the Single Workout Option. Notice of any increase in Fees will be provided to you via an email address associated with the Account.
Fees for the Single Workout Option may be due and payable any time after the Trainer’s Acceptance. Fees for a Membership Plan will become due and payable as follows: (a) the first payment of the Membership Monthly Fee will be due and payable upon your subscribing to a Membership Plan; and (b) each subsequent payment of the Membership Plan Monthly Fee will be due and payable on the commencement of a new Billing Period.
You authorize Handstand to charge your credit card, debit card or other payment method on file in the Account and to collect payment through such method for any and all Fees as they become due and payable. If you desire to designate a different payment method to be charged for future Fees, or there is a change in validity or details with respect to such payment method, you shall update the Account promptly. You may have the option to split the Fees for a specific Workout with other Workout Participants through the Handstand Platform. You may not request that someone under the age of 18 or that someone without a Handstand Account split the Fees for a Workout with you.
At Handstand’s sole discretion, pro rata refunds or credits may be granted in extenuating circumstances for Workouts that Client did not receive, as a result of specific refund guarantee promotion, to correct any errors made by Handstand, or in the event that Handstand permanently terminates or ceases to offer the Marketplaces Services or terminates your access to the Marketplace Services for any reason other than your breach of these Terms. Other than pursuant to the preceding sentence, all Fees paid to Handstand are non-refundable.
All Fees charged to Client are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all taxes, levies, or duties associated with his or her purchases made in connection with the Handstand Platform.
iii. Canceling Workouts
You may cancel any scheduled Workout through the Account or by emailing firstname.lastname@example.org. If you cancel a Workout you scheduled through the Single Workout Option, you will only be entitled to a refund of Fees paid for the canceled Workout, if the Workout was canceled at least twelve (12) hours prior to the scheduled Workout. If you cancel a Workout you scheduled under your Membership Plan, you will not be entitled to any refund of the Fees paid for the Workout, but you will be entitled to schedule a new Workout in place of the canceled Workout, unless you cancel the Workout within twelve (12) hours of the Workout Time.
You will not be entitled to any refund, credit or replacement Workout for Workouts that you cancel within twelve (12) hours of the Workout Time.
If a Trainer cancels a scheduled Workout, you may be notified via telephone or email through the telephone number or the email address associated with the Account, and will be entitled to schedule a new Workout in place of the canceled Workout.
iv. Canceling Your Subscription to a Membership Plan
CLIENT MAY CANCEL ANY MEMBERSHIP PLAN TO WHICH CLIENT HAS SUBSCRIBED AT ANY TIME BY EMAILING INFO@HANDSTANDAPP.COM. CANCELATIONS WILL BE EFFECTIVE AS OF THE END OF THE THEN CURRENT BILLING PERIOD, AND YOU WILL BE RESPONSIBLE FOR ALL FEES INCURRED TO THE ACCOUNT THROUGH THE EFFECTIVE DATE OF THE TERMINATION. NO REFUND FOR A PARTIAL MONTH WILL BE PROVIDED.
C. Marketplace Services for Trainers
In addition to these Terms (excluding the prior section for Clients), Trainers must agree to the Terms and Conditions for Trainers prior to offering or accepting any Workouts through the Handstand Platform. The Terms and Conditions for Trainers will be presented to Trainers for acceptance after a Trainer applies to be a Trainer.
4. Permitted Uses
The Handstand Platform and all Content are made available for your personal, noncommercial use, provided that Trainers may use the Handstand Platform to promote and receive payment for services that they perform at Workouts, so long as the Trainer is in full compliance with these Terms. You agree to abide by any posted limitations relating to use, reproduction or dissemination of any Content. Any use of the Handstand Platform, including, without limitation, the Sites, Content or any part of any of the foregoing, in any way not expressly permitted by these Terms is prohibited, and may be actionable under the law.
The Handstand Platform is controlled within the United States of America and are directed to individuals residing in the United States. Those who choose to access the Handstand Platform from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable. Handstand does not represent that the Handstand Platform is appropriate outside the United States of America. Handstand reserves the right to limit the availability of the Handstand Platform for any person, geographic area or jurisdiction at any time in its sole discretion.
You are responsible for your use of the Handstand Platform. You agree that the following actions, without limitation, are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and Handstand reserves the right to determine what types of conduct it considers to be inappropriate use of the Handstand Platform or any part thereof. In the case of inappropriate use, Handstand may take such measures as it determines in its sole discretion. By way of example, and not as limitation, you agree that you will not:
You acknowledge that Handstand has no obligation to monitor your access to or use of the Handstand Platform, but has the right to do so for any purpose, in its sole discretion. Handstand may at its discretion investigate and prosecute violations of these Terms to the fullest extent of the law. Handstand may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
5. User Content
The Handstand Platform may include features that enable you to send information, materials, emails and other types of messages or notices to Handstand or to others users of the Handstand Platform, create a profile in connection with your Account accessible to other users of the Handstand Platform or the public, submit reviews, opinions, biographical information and other content that others may be able to access or view, or to make other information, materials or submissions available on or through the Handstand Platform (“User Content”). User Content shall be deemed part of the defined term “Content” for purposes of these Terms. You retain the rights you hold in your User Content. All User Content made available on the Handstand Platform is strictly that of the originating author or user, who shall be solely responsible for such content. Handstand may or may not screen, review, monitor or respond to any User Content submitted by users, and is not responsible for the accuracy or truthfulness of any User Content. However, Handstand reserves the right to edit, block, or remove any User Content at any time for any reason, in its sole discretion. Use of or reliance on User Content is entirely at your own risk.
HANDSTAND HAS NO OBLIGATION TO SCREEN OR MONITOR ANY USER CONTENT AND DOES NOT GUARANTEE THAT ANY CONTENT COMPLIES WITH THESE TERMS OR IS SUITABLE FOR ALL USERS OF THE HANDSTAND PLATFORM.
By submitting User Content, you grant Handstand a royalty-free, perpetual, irrevocable, worldwide license, without further compensation, to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such User Content for any purposes, including, without limitation to advertise and promote Handstand or the Handstand Platform. You warrant and covenant that your User Content is true, your own original work, and does not violate any applicable law, infringe or violate any other person's or entity's rights, or require any third party releases or any payment to a third party.
6. Ownership and Proprietary Rights
You acknowledge and agree that, as between Handstand and you, all right, title, and interest in and to the Handstand Platform, including, without limitation, any patents, copyrights, trademarks, trade secrets, inventions, know-how, and all other intellectual property rights, are owned exclusively by Handstand, its licensors, related entities and other content providers, and are protected by United States intellectual property and other applicable laws.
You acknowledge and agree that, as between Handstand and you, all Content, other than the User Content, available on or through the Handstand Platform shall remain the exclusive property of Handstand and Handstand shall retain all rights with respect to same, including, without limitation, the sole right to implement, use, publish and/or publicly disseminate the Content. You agree that you will not use any Content other than as permitted herein, without Handstand’s prior written consent.
A. Copyright: All Content (other than User Content) is the copyright and property of Handstand, its licensors, related entities or content providers and is protected by U.S. and international copyright laws. Other than with respect to your own User Content, you agree not to copy, modify, distribute, transmit, republish, sell, resell or exploit, for any purpose, any portion of the Handstand Platform, including, without limitation, the Content other than as expressly authorized by Handstand in writing.
B. Trademarks: The trademarks, service marks, logos, slogans, trade names and trade dress used on the Handstand Platform is proprietary to Handstand, its licensors, related entities, or content providers. Third party trademarks referenced on the Handstand Platform do not constitute or imply affiliation with, endorsement, or recommendation of Handstand by the respective trademark owners.
7. Copyright Infringement Claims Policy
If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to our Copyright Agent:
A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
B. A description of the copyrighted work or other intellectual property that you claim has been infringed;
C. A description of where the material that you claim is infringing is located on the Handstand Platform (providing URL(s) in the body of the communication is the best way to help Handstand locate content quickly);
D. Your name, address, telephone number and e-mail address;
E. A signed 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; and
F. A statement by you, made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Handstand’s copyright agent can be reached as follows:
Handstand App, Inc.
1447 2nd Street, Suite 200
Santa Monica, CA 90401
Attn: Tiffany O. Hakimianpour
Email: email@example.com (Please put "Copyright Infringement" in the subject line)
Handstand may, in its sole discretion, disable and/or terminate use of the Handstand Platform by users who infringe the intellectual property of others, including, without limitation, repeat offenders.
The Handstand Platform may contain advertisements, posts and links to websites operated by other parties. The Handstand Platform provide these as a convenience, and your interaction with or use of these advertisements, posts, links and other websites is at your own risk. The advertisements, posts and linked websites are not under the control of Handstand which is not responsible for their content or privacy practices. Such advertisements, posts or links or references to other parties’ products or services do not imply Handstand’s endorsement of any other party or its information, material, products or services or website. Handstand disclaims all liability with regard to your access to and use of such information, material, products or services or transactions with such linked websites or other parties. You acknowledge and agree that Handstand is not responsible or liable, directly or indirectly, for any damage, loss or other claim caused or alleged to be caused by or in connection with, access to, use of or reliance on any content available on or through any other website or resource.
10. Suspension and Termination
Handstand reserves the right, at its sole discretion, immediately and without notice, to suspend, discontinue, or terminate your access to the Handstand Platform or any portion thereof for any reason, including, without limitation, any breach by you of these Terms. You agree that Handstand shall not be liable to you or any third party for any such suspension, discontinuance or termination. If you breach or violate any of these Terms, your permission to access or use the Handstand Platform is automatically and immediately revoked and you may not continue using the Handstand Platform or participate in any Workout.
11. Disclaimers and Limitations of Liability
A. General Disclaimers
HANDSTAND PROVIDES THE HANDSTAND PLATFORM UNDER NO WARRANTY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND “WITH ALL FAULTS.” HANDSTAND AND ITS LICENSORS, AND THEIR RESPECTIVE OFFICERS, MEMBERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES AND SUCCESSORS AND ASSIGNS (“HANDSTAND PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, WITH RESPECT TO THE HANDSTAND PLATFORM, ANY WORKOUT, OR ANY PART OF ANY OF THE FOREGOING, AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERACHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, UNINTERRUPTED USE, ACCURACY, COMPLETENESS, OPERABILITY AND/OR NON-INFRINGEMENT.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY HANDSTAND OR ITS LICENSORS OF THE SAFETY, SUITABILITY, FUNCTIONALITY OR USEFULNESS OF THE HANDSTAND PLATFORM, ANY WORKOUT, ANY PART OF ANY OF THE FOREGOING, OR THAT ANY DATA IMPLEMENTED OR ACCESSED THROUGH THE HANDSTAND PLATFORM WILL BE COMPLETE, ACCURATE OR FREE FROM ERRORS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT NONE OF THE HANDSTAND PARTIES IS RESPONSIBLE FOR OR INDEPENDENTLY VERIFIES ANY USER CONTENT, USER STATEMENTS OR COMMUNICATIONS MADE THROUGH THE HANDSTAND PLATFORM OR OUTSIDE OF THE HANDSTAND PLATFORM, OR THIRD PARTY MATERIALS ACCESSED OR RECEIVED THROUGH THE HANDSTAND PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HANDSTAND, THROUGH THE HANDSTAND PLATFORM OR THROUGH ANY CLIENT, TRAINER, OTHER USER OF THE HANDSTAND PLATFORM OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE HANDSTAND PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
YOUR USE OF THE HANDSTAND PLATFORM AND ANY MATERIAL OR INFORMATION ACCESSED, RECEIVED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HANDSTAND PLATFORM IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSSES, DEFINED BELOW, ARISING FROM SAME.
B. Disclaimers Regarding Your Communications, Interactions and Dealings with Users
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, INTERACTIONS AND DEALINGS WITH OTHER USERS OF THE HANDSTAND PLATFORM AND WITH OTHER INDIVIDUALS OR ENTITIES THAT YOU COMMUNICATE, INTERACT OR DEAL WITH THROUGH THE HANDSTAND PLATFORM OR AS A RESULT OF YOUR USE OF THE HANDSTAND PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, TRAINERS, PARTNER GYMS, AND OTHER THIRD PARTIES. HANDSTAND IS NOT OBLIGATED TO CONDUCT REVIEWS, VERIFICATIONS, BACKGROUND CHECKS OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) OF TRAINERS OR CLIENTS. ACCORDINGLY, YOU AGREE TO TAKE ALL REASONABLE PRECAUTIONS AND TO CONDUCT WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH SUCH COMMUNICATIONS, INTERACTIONS OR DEALINGS. HANDSTAND IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OF ANY KIND OR NATURE INCURRED AS THE RESULT OF SUCH COMMUNICATIONS, INTERACTIONS OR DEALINGS.
HANDSTAND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE CONDUCT, ACTIONS, INTEGRITY, OR RESPONSIBILITY OF OTHER USERS OF THE HANDSTAND PLATFORM OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE HANDSTAND PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, TRAINERS, PARTNER GYMS, AND OTHER THIRD PARTIES, AND HANDSTAND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. HANDSTAND HAS NO CONTROL OVER, AND NO RIGHT TO CONTROL, USERS OF THE HANDSTAND PLATFORM, OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE HANDSTAND PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, TRAINERS, PARTNER GYMS, AND OTHER THIRD PARTIES, OR THEIR ACTIVITY OR CONDUCT ON OR OUTSIDE OF THE HANDSTAND PLATFORM. WITHOUT LIMITING ANY OF THE FOREGOING, HANDSTAND DISCLAIMS ANY RESPONSIBILITY OR LIABILITY ASSOCIATED WITH THE HANDSTAND PLATFORM OR ANY ACTIVITY OCCURING OUTSIDE OF THE HANDSTAND PLATFORM, INCLUDING, WITHOUT LIMITATION, CONDUCT OCCURING DURING WORKOUTS OR ANY OTHER ASPECT OF ANY WORKOUTS. HANDSTAND EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CLIENT, TRAINER, OTHER USER OF THE HANDSTAND PLATFORM OR THIRD PARTY.
C. Limitations of Liability
EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE, INTENTIONAL WRONGDOING, WILLFUL, MALICIOUS OR WANTON MISCONDUCT OR WHERE OTHERWISE REQUIRED BY LAW, UNDER NO CIRCUMSTANCE SHALL ANY OF THE HANDSTAND PARTIES HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON FOR OR ON ACCOUNT OF (A) ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, INTEREST, FINES, PENALTIES, COSTS AND EXPENSES OF ANY KIND OR NATURE INCLUDING REASONABLE ATTORNEY FEES AND COSTS (COLLECTIVELY, “LOSSES”) SUSTAINED, ASSESSED OR IMPOSED ON YOU OR ANY OTHER PERSON, OR (B) ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS, OR ANY INTERRUPTION OF BUSINESS) WHETHER BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, WHICH ARISE OUT OF OR RELATE TO OR ARE IN CONNECTION WITH THE HANDSTAND PLATFORM, ANY WORKOUT, OR ANY PART OF THE ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION LOSSES CAUSED BY DISRUPTION OF THE HANDSTAND PLATFORM, DELETION OF YOUR DATA, UNAUTHORIZED ACCESS TO THE HANDSTAND PLATFORM OR YOUR PERSONAL OR FINANCIAL INFORMATION, COMPUTER MALFUNCTION, MALICIOUS CODE THAT MAY BE TRANSMITTED ON OR THROUGH THE HANDSTAND PLATFORM, ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE HANDSTAND PLATFORM OR PARTICPATION IN ANY WORKOUT, OR ANY OTHER LOSSES INCURRED BY YOU OR ANY OTHER PERSON, WHETHER OR NOT HANDSTAND KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES.
Because some jurisdictions, including the State of New Jersey, do not allow for certain limitations with respect to duration or disclaimer of warranties, or exclusion or limitation of liability for certain types of damages, portions of this Section 11 may not apply to you. IF, FOR ANY REASON, ANY OF THE FOREGOING LIMITATIONS IS FOUND TO BE INVALID OR UNENFORCEABLE AS FINALLY DETERMINED BY A COURT OF LAW, THE SOLE AND TOTAL LIABILITY OF ANY OF THE HANDSTAND PARTIES SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE AMOUNT OF COMMISSION THAT HANDSTAND RECEIVED FOR YOUR USE OF THE HANDSTAND PLATFORM DURING THE TWELVE MONTH PERIOD PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE CLAIM; OR (2) $1,000. THE FOREGOING LIMITATION OF LIABILITY IS FAIR AND REASONABLE UNDER THE CIRCUMSTANCES AND IN CONSIDERATION FOR THE RIGHTS GRANTED HEREUNDER.
12. Disputes with other Users
BY USING THE HANDSTAND PLATFORM, YOU AGREE THAT ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF OTHER USERS OF THE HANDSTAND PLATFORM OR WITH OTHER INDIVIDUALS OR ENTITIES THAT YOU COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE HANDSTAND PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, TRAINERS, PARTNER GYMS, AND OTHER THIRD PARTIES, WILL BE LIMITED TO A CLAIM AGAINST THE PARTICULAR INDIVIDUAL OR ENTITY THAT CAUSED YOU HARM AND YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON, OR SEEK ANY LEGAL REMEDY FROM HANDSTAND WITH RESPECT TO SUCH ACTIONS OR OMISSIONS.
In the event of a dispute between you and any other user of the Handstand Platform or with other individuals or entities that you communicate, interact or deal with as a result of your use of the Handstand Platform, including, but not limited to, Clients, Trainers, Partner Gyms, and other third parties, you understand and agree that Handstand is under no obligation to become involved and you hereby release and discharge the Handstand Parties from all Losses of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such dispute. You expressly waive California Civil Code § 1542, if you are a California resident, or any other statute of similar import or effect, that otherwise may exclude unknown claims from this release, as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify, hold harmless and defend the Handstand Parties from and against any and all Losses arising out of, relating to, resulting from or in connection with: (a) your breach or violation of any term, condition, obligation, representation, warranty or covenant set forth in these Terms, violation of any applicable law or violation of the rights of Handstand or any third party damaged by your actions or by the actions of anyone else accessing the Account; (b) any information (including your User Content or any other content) that you submit, post, or transmit on or through the Handstand Platform; or (c) any activity that occurs in connection with use of the Account, your activity and conduct in connection with any Workout, or your dispute with any other user of the Handstand Platform or with other individuals or entities that you communicate, interact or deal with as a result of your use of the Handstand Platform, including, but not limited to, Clients, Trainers, Partner Gyms, and other third parties (each of the foregoing for the purposes of this Section 13, a “Claim”).
Handstand shall have the unilateral right to undertake the control and defense and settlement or other disposition of any Claim hereunder with counsel of its choice with all attorney fees and costs paid or reimbursed by you on demand, provided however that (i) you at your own expense may participate with Handstand in the defense of any Claim, and (ii) you shall not stipulate or consent to judgment or settle any Claim without Handstand’s prior written consent. You shall provide Handstand with reasonable cooperation in connection with any such defense.
14. Notice Required by California Law
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
The name, address and telephone number of the provider of this service is Handstand App, Inc., 1447 2nd Street Suite 200 Santa Monica, CA 90401. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (800) 952-5210.
15. Arbitration, Governing Law and Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT OUTLINES CERTAIN RIGHTS THAT YOU ARE WAIVING OR LIMITING BY USING THE HANDSTAND PLATFORM. REMEMBER THAT USE OF THE HANDSTAND PLATFORM CONSTITUTES ACCEPTANCE OF THESE TERMS, INCLUDING THE PROVISIONS RELATING TO GOVERNING LAW AND DISPUTE RESOLUTION. THIS SECTION WAIVES THE FOLLOWING RIGHTS THAT YOU MIGHT OTHERWISE HAVE:
• THE RIGHT TO HAVE THE LAW OF ANY JURISDICTION, OTHER THAN THAT OF THE STATE OF CALIFORNIA, APPLY TO A DISPUTE BETWEEN YOU AND HANDSTAND ARISING OUT OF OR RELATING TO THESE TERMS OR THE HANDSTAND PLATFORM.
• THE RIGHT TO HAVE A JURY DECIDE ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE HANDSTAND PLATFORM.
• THE RIGHT TO HAVE A COURT DECIDE ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE HANDSTAND PLATFORM, UNLESS YOUR CLAIM QUALIFIES FOR SMALL CLAIMS COURT.
• THE RIGHT TO PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, INCLUDING AS A CLASS REPRESENTATIVE OR CLASS MEMBER.
• THE RIGHT TO JOIN OR CONSOLIDATE CLAIM(S) INVOLVING YOU WITH CLAIMS INVOLVING ANY OTHER PERSON.
• THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION.
Agreement to Arbitrate. You agree that in the event of any dispute, claim, question, or disagreement arising out of or relating to the Handstand Platform, this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes in effect at the time the arbitration is initiated (“AAA Rules”), except as modified herein (“Arbitration Agreement”).
Opting out of Your Agreement to Arbitrate. You may opt out of your Arbitration Agreement by providing Handstand with notice of your desire to opt-out, by emailing Handstand at firstname.lastname@example.org within thirty (30) days of agreeing to these Terms. Such notice must contain the subject line “Arbitration Opt-Out” and the email must include your full name and a clear statement that you are exercising your option to opt out of the requirements to arbitrate that are specified in these Terms. If you exercise your option to opt-out of the Arbitration Agreement pursuant to this section: (a) the provisions of this Section 15.A will not apply to you, but all other provisions of these Terms will apply to you, including, without limitation, the provisions of Section 15.B below; and (b) you agree that the sole and exclusive jurisdiction and venue for your claims arising out of or relating to the Handstand Platform, this Agreement, or the breach thereof will be the federal of state courts located in Los Angeles, California.
Arbitration Procedure. The arbitration shall take place before a single arbitrator. The place of arbitration shall be in the county where you reside, unless another place is agreed upon by all parties. If your claim is for $10,000 or less, the arbitration will be conducted based solely on written documents submitted to the arbitrator, unless you request a hearing or the arbitrator requires one. Either party may attend any hearing via telephone, unless the arbitrator requires the parties to be physically present. Except as may be required by law, no party nor the arbitrator may disclose the existence or results of, the content of any hearings for, or the content of any documents or pleadings submitted or produced in connection with any arbitration proceeding hereunder without the prior written consent of all parties.
Arbitration Rewards. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Arbitration Costs.Each party shall bear the filing, administration and arbitrator fees as required by the AAA Rules, provided that if your position is substantially upheld by the arbitrator, Handstand will reimburse you for your filing, administration and arbitrator fees.
Arbitration Alternative: Regardless of whether you opt-out of your obligation to arbitrate, if your claims qualify for small claims court, you may assert your claims in small claims court, as long as the claims stay in small claims court and progress solely on an individual basis.
B. Governing Law and Dispute Resolution
Governing Law: This Agreement and all matters arising out of, relating to or in connection with this Agreement or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law or conflict of law rules or provisions, provided that all matters relating to arbitration, shall governed by the Federal Arbitration Act.
Waiver of Certain Types of Actions: You agree that to the fullest extent permitted by law: (i) no claims by you shall be joined with the claims of any other person and you agree not to participate in any claim brought by other persons, whether in arbitration or litigation; (ii) YOU HAVE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE LITIGATED ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (iii) you have no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other person; and (iv) you have no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general action. To the extent that the foregoing sentence or any portion thereof is found to be unenforceable and severed from these Terms, and if such a finding allows for your claims to brought on non-individual, class action, collective action, representative or private attorney general basis, you and Handstand agree that such actions will not be decided in arbitration and must be litigated in a civil court of competent jurisdiction.
Waiver of Jury Trial: YOU AND HANDSTAND HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY WITH REGARD ANY DISPUTE, CLAIM, QUESTION, OR DISAGREEMENT ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
16. Other Provisions