Terms of Service

Introduction

Welcome to the www.survivorstrong.com website (the "Website"). The Website is owned by Survivor Strong, Inc. (the “Company”).  The Company provides the following services to you:

  • A guided online strength training program for cancer recurrence risk reduction and prevention, with the aim of promoting a healthy lifestyle by increasing lean muscle mass while decreasing fat mass.

  • Interaction with a supportive community of expert-level coaches, and participant-to-participant interaction to foster a sense of community.

These services above are collectively described as “Services” in this agreement (the "Agreement").  

The Company provides Services to you by way of www.trainheroic.com and our mobile application (“App”), subject to these notices, terms, and conditions set forth in this Agreement.  In addition, when you use any of our Services, you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such Services, and they are incorporated into this Agreement by this reference.  We reserve the right to change the Website and App, and any of these terms and conditions, at any time.

THIS DOCUMENT, THE TERMS OF SERVICE, IS A LEGAL AGREEMENT BETWEEN THE COMPANY AND YOU WHICH GOVERNS YOUR USE OF THE SERVICES, WEBSITE, OR APP.  YOUR USE OF THE SERVICES, WEBSITE, OR APP CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE AND THE PRIVACY POLICY INCORPORATED HEREIN; AND YOUR REPRESENTATION THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER.  IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.  If you accept these Terms of Service and are using the Services on behalf of a company, organization, or other legal entity or person, you represent and warrant to the Company that you have full power and authority to do so.  

Effective Date.   This Agreement is effective (“Effective Date”) on the date you first access or use the Services, App, or Website, whichever is earlier.

Participant Waiver and Release

Physical Examination.        The Company urges anyone who uses our Services (“Participants”), whether by way of www.trainheroic.com or by way of our Website and/or App, to obtain a physical examination from his or her physician(s) prior to initiating or continuing any exercise program, including use of the Services offered by the Company.  It is the sole responsibility of the Participant to determine whether s/he is sufficiently fit and healthy enough to use the Company’s App or Services.

Risk of Injury.        The Company’s Services are not designed for individuals with heart or lung problems, pre-existing bodily injuries such as but not limited to joint injuries, pre-existing bodily pain, or pre-existing functional impairment (“Injury” or collectively, “Injuries”).  Participants should be in good health and in proper physical condition.  Participants acknowledge that there is a risk of injury associated with participation in any exercise program, including using the Services; and that there exists the possibility for certain conditions occurring during or following use of the Services. These may include, but are not limited to, mild lightheadedness, fainting, abnormalities of blood pressure or heart rate, ineffective heart function in rare instances, heart attack, stroke or death. The reaction of the lung and cardiovascular system to such activity cannot be predicted without complete accuracy. Furthermore, Participants herein acknowledge the physical and mental rigors associated with the Services, and risks and dangers associated with same which include, without limitation, the potential for serious bodily injury, death or other damage or injury.

Changes to Physical Fitness.        The Company realizes that Participant may incur an Injury or Injuries while subscribing to our Services, regardless of whether they are caused by use of or in any way related to the Services.  Any changes in Participant’s diet, exercise, fitness routine, or bodily condition are entirely responsibility of Participant.  Participant should consult his or her physician(s) before continuing to use the Services.  Participant agrees to receive a medical clearance from his/her private physician prior to continuing to use the Services.

No Guarantees.        Participants herein acknowledge that individual factors such as diet and genetic makeup, overall health, or physiological differences may influence accomplishment of individual fitness goals. Individual weight loss or fitness goal results may vary from person to person, and use of the Services does not guarantee accomplishment of individual fitness goals or weight loss.

Waiver.  Participants agree to assume full responsibility for any injury or damages sustained while using the Services offered by the Company at Participant’ sole risk and discretion.  In electing to use the App or Services, you, as a Participant, hereby knowingly and voluntarily waive any cause of action of any kind whatsoever arising as the result of such activity from which liability may or could accrue to the Company, and each of their respective instructors, affiliates, officers, directors, advertising and promotional agencies, employees or agents of any of the aforementioned and/or any successors, subsidiaries, assigns, its/their employees, agents, officers, directors (“Releasees”), and hold harmless and indemnify Releasees against all claims, demands, injuries, damages, actions, or causes of action, whatsoever to person or property, arising out of or connected to the Services.

Participants agree to indemnify defend, hold harmless, release and discharge Releasees from and against any and all liability, or loss, damage, harm, injury (including health problems, injury and/or death), cost or expense which may occur (including, without limitation, attorney’s fees, costs, and expenses of any litigation, arbitration or other proceeding), resulting from preparation for or use of the Services, and/or any acts of active or passive negligence on the part of Releasees.

Participant expressly agree to release and discharge Releasees from any and all claims or causes of action, and Participants agree to voluntarily give up or waive any right that Participants may otherwise have to bring a legal action against Releasees, for personal injury or property damage. To the extent that applicable law does not prohibit releases for negligence, Participant agree to voluntarily give up or waive any right that Participant may otherwise have to bring a legal action against Releasees for negligence related to the Company’s provision of the Services.

Advertisement.        Participant gives the Company, or its agents or assigns, full and complete authorization to use all Participant’s photos and written and/or video testimonials in any and all advertisements, posters, websites, articles, recordings, taken, produced, acquired, or otherwise preserved based upon or arising out of Participant’s use of the Services or App for all manner of advertising, trade, promotion, exhibition, or any other lawful purpose whatsoever and in any form or medium in conjunction with the promotion, inclusive of social media, advertising, marketing, trade, or for any other lawful purpose as determined in the sole and complete discretion of the Company, at any time.

Evaluation Support.        If requested by the Company, you agree to cooperate and consult with Company in your evaluation of the Services provided, including your evaluation of  the features, performance, functionality and useability.  You will provide oral or written evaluations to the Company within seven (7) days of the Company’s request. You hereby assign and will assign to Company all rights and title in the evaluations, including, but not limited to, all patents, copyrights, trade secrets or other intellectual property rights in the evaluations. You will provide Company access to observe your use and evaluation of the Services, upon Company’s request.  You understand that you are exclusively responsible for the supervision, management and control of your smartphone or computer systems and network when using the App or Website to access the Services.

Referrals.        If you have been referred to the Company by your medical practitioner, you herein agree that use of the Services is not obligatory on your part or in any way required by your medical practitioner.

Fees.   Upon notice to you, the Company may increase any fees specified in connection with its Services.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”).  You are responsible for paying all taxes associated with purchases and transactions under this Agreement.  

You may pay by credit card by way of the Braintree Gateway, a third-party payment processor if paying for the service.  

You herein agree that if you choose to pay for the Services via our third-party payment processor, Braintree Gateway, you agree to Braintree Gateway’s Privacy Policy and Terms of Service.  You agree that the Company is not liable for the privacy practices of its third-party payment processor, Braintree Gateway, or how Braintree Gateway handles any of your personal information, including financial information.

You agree not to file a credit or debit card chargeback with regard to any amount of fees charged in connection with the Services.  Instead, you agree to abide by the and instead abide by the dispute resolution procedures outlined herein, below.

Termination.   The Company reserves the right, in its sole discretion, to terminate your access to our Services if you violate these Terms of Service or for any reason or no reason at any time.  We may also suspend your access to the Services, App, and/or Website if you: (a) have violated the terms of these Terms of Service, any other agreement you have with the Company; (b) pose an unacceptable credit or fraud risk to us or Website users; (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; or (d) for any other reason in the Company's sole discretion.

If your access to Services is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by these Terms of Service; (b) to immediately stop using the Services, (c) that any licenses granted to you under these Terms of Service shall end; (d) that we reserve the right (but have no obligation) to hide or delete all of your information and account data stored on our servers; and (e) that the Company shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion or hiding of your information or account data.  You agree that the Company may retain and use your information and account data as needed to comply with investigations and applicable law, and as indicated in the Company’s Privacy Policy.

However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services.  Any termination of your use of the Services does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us, as provided in these Terms of Service.

Payment Processing.   Users of the Services will be required to provide their credit card or bank account details to Braintree Gateway, a third-party payment processor if paying for the service to process payment(s).  Specifically, you will be required to provide your credit card or bank account details to the third-party service provider, and/or register with the third-party service provider to process payment(s) for the Services.  You authorize us to receive your payment(s) for the Services, using the payment information you have supplied to the third party payment processor.  

You agree to provide the third-party service provider with accurate and complete information about you; and you authorize the third-party service provider to share that information with the Company for the purpose of processing payment(s), including but not limited to the fees owed to Company for the use of the Services.  The Company reserves the right, in its sole discretion (but not the obligation), to: (i) place on hold any payment and out of pocket expenses; and/or (ii) refund, provide credits or arrange for the third-party service provider to do so, as necessary.  

If you believe a payment has been processed in error, you must provide written notice to the third party payment processor and the Company within thirty (30) days after the date of payment, specifying the nature of the error and the amount in dispute.  If notice is not received by the Company within such thirty (30) day period, the payment will be deemed final and valid.

The Company is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any user that are deceptive, fraudulent or otherwise invalid.  By using the Services, you hereby release the Company from any liability arising from fraudulent actions. You will also use best efforts to promptly notify the Company of any fraudulent actions which may affect provision of the Services.  The Company reserves the right, in its sole discretion, to terminate the account of any Participant that engages in, or enables any other Participant to engage in, fraudulent actions with respect to payment processing.

The Company is not responsible for any fees or charges assessed by the third party payment processor, or any errors in the processing of payment(s) by third party service providers, including any errors that result from third-party negligence, improper transmission of payment information, mistaken submission of payment information, or submission of erroneous payment information.  As discussed above, you herein agree that if you choose to pay for the Services via our third-party payment processor, Braintree Gateway, you agree to Braintree Gateway’s Privacy Policy and Terms of Service.  You agree that the Company is not liable for the privacy practices of its third-party payment processor, Braintree Gateway, or how Braintree Gateway handles any of your personal information, including financial information. For any claims related to the third-party payment processor’s negligence, improper transmission of payment information, mistaken submission of payment information, or submission of erroneous payment information you herein agree that your sole recourse is with the third-party service provider which processed the payment(s).

General Terms

The foregoing provisions apply to Participants and anyone who visits our Website or downloads or App, regardless of whether he or she uses our Services as a Participant.  

Privacy Policy.        You herein agree to all the terms in the Company’s current Privacy Policy in order to use the Services, or access the Website or App.

Account.   By creating an online account with the Company on its Website or App ("Account"), you are granted a right to use the Services provided by the Company subject to the restrictions set forth in these Terms of Service and the Privacy Policy, incorporated by reference herein.  

Our Account registration process will ask you for information including your name, email and or physical address, phone number, etc. (hereinafter, collectively referred to as “Personal Information,” as previously defined in our Privacy Policy).  By registering for an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration process.  You further agree that you will not knowingly omit or misrepresent any material facts or information, and that you will promptly enter corrected or updated information in your Account, or notify us in writing regarding your corrected or updated information.  

We may verify your provided information, as required for your use of and access to the Services.  You agree to maintain your Account solely for your own use.  You agree that you will not allow another person to use your Account.  We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so.  Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services.

The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account.  You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you.  You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.

Intellectual Property Rights.        All text, photographs, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to the Company or its affiliates. The collection, arrangement, and assembly of all Content on this Website (the "Compilation") belongs exclusively to the Company or its affiliates. All software used on this Website (the "Software") is the property of the Company its affiliates or its Software suppliers. The Content, the Compilation and the Software are all protected by copyright laws. The Company’s logos, slogans, trade names or wordmarks are registered trademarks, trademarks or service marks of the Company its affiliates, suppliers, or third parties. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.

Links to Other Websites.   As described in the Privacy Policy, incorporated herein, the Website and/or App may contain links to third party websites, such as but not limited to www.trainheroic.com, that are not owned or controlled by the Company.  The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites.  In addition, the Company will not and cannot censor or edit the content of any third-party site.  By using the Website, App, and/or Services, you expressly relieve the Company from any and all liability arising from your use of any third-party website that is referenced or linked on our Website or App.

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

No Submission of Unsolicited Ideas and/or Materials.   In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or Services (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the App or Website are deemed user Content and licensed to us as set forth below. In addition, Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

Blog/Public Forum on our Website.   As indicated in our Privacy Policy, incorporated herein, if you create an Account on our Website or App, you may post content on the Company’s message boards, blogs, and community forums.

You agree not to post on our Website any content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current.  You agree that any user content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy.

The Company reserves the right, but is not obligated, to reject and/or remove any user content on the blog/public forum that the Company believes, in its sole discretion, violates these provisions.  We also reserve the right to block or remove any content we deem inappropriate, obscene, lewd, lascivious, filthy, violent, harassing, defamatory, libelous, tortious, illegal, threatening, or otherwise objectionable, regardless of whether it was intended to be private or public.  Since we do not review all content on our Website, we cannot guarantee that we will be able to take protective measures in the event that any user posts content that violates the terms of this provision.  However, when we become aware of content that we consider violates this provision (i.e., is offensive or could compromise the privacy of your personal or confidential information or that of another person), we will make a good-faith, reasonable effort to block or remove such content.

The Company takes no responsibility and assumes no liability for any user content that you or any other user or third party posts or sends over the Website or mobile app, or any action you take in reliance on any user content posted by another user.  You shall be solely responsible for your user content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your user content.

Furthermore, you understand and agree that you may be exposed to other people’s user content that may be inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that the Company shall not be liable for any damages you allege to incur as a result of exposure to such user content.

You may self-edit and/or remove the content you posted on our Website and/or mobile app by logging into your account.  Or, to request removal of any content that you believe violates this provision or that you previously posted on our blog/community forum, please contact us at  info@survivorstrong.com.  In some cases, we may not be able to remove your content, especially if it was already re-posted by another user.  If this is the case, we will let you know if we are unable to do so and why in response to your request.  

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

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

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

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

(iv) your full name, address, telephone number, and e-mail address;

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

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

(vii) your electronic or physical signature.

The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.

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

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

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.  Without limiting the Company's other rights, the Company may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by the Company or its affiliates.

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

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

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

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

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

(vi) your electronic or physical signature.

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

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

Data Ownership and Usage.   As specified in the Company’s Privacy Policy, incorporated herein, we will own all Aggregated Data, and the Privacy Policy will govern how we collect and use Personal Information that is submitted through the Website or App. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy.

Data Security.        As explained in our Privacy Policy, we have controls in place to prevent outside parties from stealing or accessing your data and Personal Information, but they are not foolproof.  Please exercise caution when disclosing any Personal Information while using our Website.  We will notify one another if either of us becomes aware that your data and/or Personal Information has been compromised.

You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business.  You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.

Personal Information.           As outlined in the Company’s Privacy Policy, incorporated herein, we will protect your Personal Information and disclose it only in a limited number of circumstances.  We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, or disclosure.  However, we cannot guarantee that unauthorized third parties will never be able to thwart those measures, or use your Personal Information for improper purposes.  You acknowledge that you provide your Personal Information at your own risk.

HIPAA.          Health Insurance Portability and Accountability Act (“HIPAA”) imposes rules to protect certain personal health information.  You should not share any protected health information, or any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual.  The App and this Website are not intended to be used to communicate protected health information, nor comply with HIPAA. If you do share any protected health information, you do so at your own risk.

No Representations or Warranties.   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE.

THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.  

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “THE COMPANY PARTIES”).

Indemnification.   You agree to indemnify, defend, and hold harmless the Company and its affiliates from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement; (b) any access to or use of the Services, App, or Website; (c) any actual or alleged violation by you, an affiliate, or end user of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party and/or user regarding ownership of or access to your data.

No Liability.   THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY THE COMPANY.  THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT.  ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.

IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN userS RELATED TO OR ARISING FROM USE OF THE SERVICES.  YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER user, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF  SERVICES OR OTHERWISE.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Choice of Law.   These Terms of Service and the relationship between you and the Company shall be governed by the laws of the State of California without regard to its conflict of law provisions.

Dispute Resolution.  

  • Informal Dispute Resolution.   We want to address your concerns without needing a formal legal case. Before filing a claim against the Company, you agree to try to resolve the Dispute informally by contacting info@survivorstrong.com.  We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or the Company may bring a formal proceeding.

  • We Both Agree To Arbitrate.   You and the Company agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

  • Opt-out of Agreement to Arbitrate.   You can decline this agreement to arbitrate by contacting info@survivorstrong.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.

  • Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco, California, or any other location we agree to.

  • Arbitration Fees.   The AAA rules will govern payment of all arbitration fees. The Company will pay all arbitration fees for claims less than $75,000. The Company will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

  • Exceptions to Agreement to Arbitrate.  Either you or the Company may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work.  Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the the Company’s products or the Company Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

  • No Class Actions.   You may only resolve Disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.  Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.

  • Judicial Forum for Disputes.   In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California.  Both you and the Company consent to venue and personal jurisdiction there.  We both agree to waive our right to a jury trial.

  • Limitation on Claims.   Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the the Company’s products or Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

Miscellaneous Provisions

  • Relationship of the Parties.   This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.

  • Entire Agreement.   These Terms of Service and Privacy Policy referenced herein constitute the entire agreement between you and the Company concerning the subject matter herein and the use of the Services and/or Website.  They supersede any and all previous agreements, written or oral, between you and the Company, including previous versions of these Terms of Service and/or Privacy Policy.

  • Modification.   The Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Terms of Service and/or Privacy, and any and all referenced and/or incorporated exhibits or policies, programs and guidelines.  The Company will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so.  If any future changes to these Terms of Service and/or Privacy Policy are unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using, the Services.  Your continued use of the Services following any revision to these Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.

  • Assignment.   The Company may assign these Terms of Service and/or Privacy Policy in whole or part at any time.  However, you may not assign, delegate or transfer this Agreement in whole or in part, without the Company’s prior written consent.

  • No Waiver.   Any failure of the Company to enforce or exercise a right provided in these Terms of Service and/or the Privacy Policy  is not a waiver of that right.

  • Severability.   Should any provision of these Terms of Service be found invalid or unenforceable, the remaining terms shall still apply.

  • Force Majeure.   Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.  Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

  • Electronic Communications and Signatures.   You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Website or App.  Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

  • Notices.   Any notices provided by the Company under this Agreement and/or the Privacy Policy may be delivered to you to the email address(es) we have on file for your Account.  You hereby consent to receive notice from us through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.  Except as otherwise specified in the Agreement, any notices to the Company under this Agreement must be delivered either via email to info@survivorstrong.com or via first class registered U.S. mail, overnight courier, to: Survivor Strong, Inc., ℅ ℅ David Spitz / California Strength, 2021 Omega Road, Suite 120, San Ramon, CA 94583.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, INCLUDING THE COMPANY'S PRIVACY POLICY, AND AGREE THAT MY USE OF THE SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND THE COMPANY’S PRIVACY POLICY INCORPORATED HEREIN.