This agreement (“Agreement”) relates to your use of any products to which you gain access by subscribing to The Richard Simmons Clubhouse (“Clubhouse”), owned by Richard Simmons Inc. (“RSI”). By subscribing to the Richard Simmons Clubhouse, located on the Richard Simmons Website, at www.richardsimmons.com (the “Website”),or by using any such products or offerings included therein (the Clubhouse, the Subscription Area, and any and all other products or offerings being hereinafter collectively referred to as the “Products”), you agree to the terms and conditions set forth in this Agreement. We reserve the right, in our sole discretion, to change, modify, add or remove provisions of this Agreement at any time. Please check this Agreement periodically for changes. By using the Website or our Products after we post any changes to this Agreement or otherwise notify you of changes thereto, you agree that you accept such changes, whether or not you have reviewed them. If you do not agree to the terms of this Agreement, you should not use the Website and/or the Products, and you should cancel your subscription to the Clubhouse. In the event that you join the Clubhouse, you agree to be bound by both the Subscription Agreement and, by reference, the Terms and Conditions posted on the home page of the Website, outside the Clubhouse. In the event of any conflict between the two, this Subscription Agreement will control.
RSI and its affiliates are referred to collectively herein as “we,” “us,” or “our.” “Affiliates” means any entity or person directly or indirectly owning a controlling interest in, or owned by, RSI, and/or any of our contractors or vendors providing services to the Products.
In General: By subscribing to The Clubhouse you agree to be bound by these Terms and Conditions. If you don’t comply with these Terms and Conditions, we have the right to terminate your membership in The Richard Simmons Clubhouse and suspend your access thereto. We may, in our sole discretion and without prior notice or liability, discontinue, modify or alter any aspect of the Products, including restricting or terminating your access thereto.
Intellectual Property: Use of Materials.Unless otherwise noted, we grant you a non- transferable, non-exclusive and limited right to display and access the Clubhouse and its contents for your personal and noncommercial use; provided, however, that you comply with this Agreement. You acknowledge that the Clubhouse contains information, data, software, photographs, graphics, videos, text, images, typefaces, sounds, questions, creative suggestions, messages, comments, feedback, articles and other material (collectively “Content”) protected by copyrights, trademarks, or other proprietary rights, and that these rights are held by RSI and its Affiliates, and are valid and protected in all forms, media, and technologies existing now or hereinafter developed. You acknowledge and agree that except as specifically set forth in this Agreement, you have no rights in or to any intellectual property on the Website or in the Clubhouse. Our commercial business partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content made available in the Clubhouse. The Content is copyrighted as a collective work under the copyright laws of the United States (and if applicable, similar foreign laws). All trademarks and service marks appearing on the Clubhouse belong to RSI and/or its Affiliates. The following are our trademarks and service marks: RICHARD SIMMONS, SLIMMONS, RICHARD SIMMONS CLUBHOUSE, and AT HOME WITH RICHARD. All other trademarks and service marks in the Clubhouse are the property of their respective owners. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works from, or in any way exploit any of the Content, in whole or in part, without the prior express written consent of the owner of said Content, whether RSI or one of its Affiliates or a third party as set forth above.
Disclaimers of Warranties. RSI AND ITS AFFILIATES DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, OR CORRECT SEQUENCING OF ANY INFORMATION ON THE CLUBHOUSE, INCLUDING BUT NOT LIMITED TO INFORMATION CREATED BY RSI AND ITS AFFILIATES, OR GATHERED BY RSI AND ITS AFFILIATES FROM PUBLICLY AVAILABLE SOURCES. ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CLUBHOUSE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL. THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THE CLUBHOUSE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR NON- INFRINGEMENT.
NEITHER RSI OR ANY OF ITS AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE CLUBHOUSE OR ANY FUNCTION CONTAINED IN THE CLUBHOUSE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS CLUBHOUSE OR THE SERVERS THAT MAKE THE CLUBHOUSE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER RSI OR ANY OF ITS AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS CONTAINED IN THE CLUBHOUSE WITH RESPECT TO THEIR CORRECTNESS, RELIABILITY, ACCURACY, OR OTHERWISE. NEITHER RSI OR ANY OF ITS AFFILIATES REPRESENTS OR ENDORSES THE ACCURACY, RELIABILITY OR USEFULNESS OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION PROVIDED BY ANY USE OF THIS SITE OR ANY OTHER PERSON OR ENTITY. RELIANCE UPON ANY SUCH OPINION, ADVICE OR STATEMENT SHALL BE AT YOUR OWN RISK.
Limitation of Liability. RSI AND ITS AFFILIATES, AND ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS SHALL HAVE NO LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RESULTING FROM YOUR INABILITY TO USE THE CLUBHOUSE; THE USE OF ANY CONTENT ON THE CLUBHOUSE OR WEBSITES LINKED HERETO; ANY UNAUTHORIZED ACCESS TO OR CHANGES MADE TO YOUR DATA; THE COST OF YOUR PROCURING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED FROM THE CLUBHOUSE; OR ANY OTHER MATTER RELATING TO THE CLUBHOUSE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER ARISING IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), CONTRACT OR ANY OTHER CAUSE OF ACTION) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE CLUBHOUSE DURING THE 28 DAY PERIOD (THE “MONTH” OR “BILLING PERIOD”) PRIOR TO THE DATE THE CLAIM WAS FILED. IN THE EVENT THAT YOU ARE DISSATISFIED WITH THE CLUBHOUSE OR ANY PORTION THEREOF, OR CHOOSE NOT TO COMPLY WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO CANCEL YOUR MEMBERSHIP IN THE CLUBHOUSE.
Links and framing. This Agreement governs your use of the Clubhouse, and not your use of sites operated by third parties to which the Clubhouse may be linked. We or our Affiliates may provide links to other sites on the World Wide Web. You agree that we are not responsible for the availability of such sites, and that our linking thereto does not constitute endorsement of or responsibility for any content, advertising, products or other material or available on or through such sites. You also agree that we will be under no circumstances responsible or liable, directly or otherwise, for any loss or damage that is caused or alleged to have been caused to you in relation to your use of or reliance upon, any products, advertisements, content or other material available on any other site, regardless of whether we link thereto, whether directly or indirectly. You may not frame portions of the Website or the Clubhouse within any other website, or establish links from any other website to any page of the Website or the Clubhouse other than the home page without our prior written consent.
Third Party Products and Services. You may order merchandise or other products or services through the Clubhouse from third party sellers. Responsibility for services, merchandise and products ordered from such sellers, including but not limited to, purchase terms, warranties, limitations of liability, guarantees, payment terms, customer service and delivery rests with these third party sellers, and RSI and its Affiliates make no warranties or representations in regard thereto. You will not regard us as a party to such transactions, whether or not we have received some revenue or remuneration relating to these third party transactions; and we will have no liability for any costs or damages to you or anyone else arising out of such transactions, either directly or indirectly.
Health Disclaimers. The Clubhouse and the Products provide content and information intended to assist users in efforts to lose weight personally. RSI and its Affiliates are not a medical organization(s), and cannot give you medical advice or diagnose your condition(s), and nothing contained in the Clubhouse and/or other Products shall be interpreted as constituting such advice or diagnosis. The Clubhouse and Products are not a substitute for evaluation, consultation with, and treatment by, a physician. For the avoidance of confusion, this health disclaimer includes, but is not limited to, the following disease and condition-specific disclaimers:
Eating Disorder Disclaimer: If you suspect that you have an eating disorder or have been diagnosed as having an eating disorder, you must meet with your psychologist, registered dietitian, and doctor to make sure that the meal plans provided in the Products do not interfere with your treatment.
Pregnancy Disclaimer: Pregnancy is an ever-changing state. Depending on how far along you are and what special medical considerations you may have, appropriate recommendations for eating and exercise may vary. You understand and agree that any information provided in the Products regarding pregnancy is for educational purposes only, and that the Products and their owners are not engaged in the practice or medicine, nor do they render personal medical advice. If you have concerns about your health or the health of your baby, you must consult with your physician. The information provided in the Products should not be used in lieu of advice given by a qualified medical professional.
Diabetes Disclaimer: You acknowledge and agree that information in the Products regarding diabetes is provided for educational purposes only, and that the Products are not engaged in rendering personal medical advice, and that the information provided therein should not be used in lieu of medical advice from qualified medical professionals such as your doctor or registered dietitian. Diabetes is a complicated disease, and dieting and exercise recommendations from medical professionals will vary from person to person depending on their condition; use information provided hereon only in conjunction with qualified medical guidance.
Exercise Disclaimer: Exercise programs may be safe and pose minimal risks. However, you agree to consult your doctor before beginning any exercise program set forth in the Products.
Heart Conditions and High Blood Pressure Disclaimer: If you have a heart condition or high blood pressure, be sure to consult your physician before commencing any exercise program in the Products.
Miscellaneous Health-Based Disclaimers: If in the course of exercising, you experience chest pains, become dizzy or breathless, or experience any discomfort or pain of any kind, cease exercising and consult your physician before commencing it again.
9. Passwords, Unauthorized Access, and Billing:
In General: In order to access the Products, you must register to become a
member of the Clubhouse. For purposes of your use of the Products including identification, you agree to provide us with true, accurate and complete information as required by the subscription process in the Clubhouse (“Subscription Data”), including your legal name, address, telephone number, email address and applicable information and to allow us to share your Subscription Data with third parties in order to verify the accuracy of the information submitted. You agree to maintain and promptly update the Subscription Data when necessary, to keep it accurate. If you provide any information that is false, inaccurate or incomplete, or if we have reason to suspect that this is the case, we reserve the right in our sole discretion to suspend or terminate your user account or subscription and to refuse any and all current or future use by you of the Products, including but not limited to the Clubhouse.
Confidentiality of Data: You are solely responsible for maintaining the confidentiality of your password and user account information, and agree to notify us immediately in the event of any known or suspected unauthorized use of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password. In the event of such a breach of security on your part, you will remain liable for any unauthorized use of your
Subscription Data until you update this information. You are entirely responsible
for any activities occurring under your user account.
Cancellation of Subscription: Either you or we may terminate or cancel your
Standards of Behavior in the Clubhouse: The Clubhouse is a place to meet and talk with others concerning exercise, motivation and weight loss issues. Chat Rooms and Bulletin Boards are open to all subscribers, and we welcome a variety of viewpoints. Postings in Chat Rooms and Bulletin Boards are not private, and can be read by any other subscriber. It is not a good idea to post your address, home telephone number, password, credit card information, or personal details about yourself. The Clubhouse does not accept advertising from subscribers, and you may not promote your products or services, or conduct business, in the Products, Chat Rooms or Bulletin Boards. You further agree not to use the Clubhouse to transmit or upload any content, messages, postings, or other communications which:
are (in our sole discretion) Unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, disruptive, libelous, invasive of anyone else’s privacy, hateful, or racially, ethnically or otherwise objectionable;
are in anyway harmful to minors;
impersonate any person or entity, or falsely stating or misrepresenting your affiliation with Richard Simmons or Richard Simmons Inc.;
forge headers or otherwise manipulate identifiers in order to disguise the origin of a posting or other material(s) transmitted to or through the Clubhouse;
upload, post, or in any other way transmit materials which you have no right to disclose, including but not limited to confidentiality rights, or material covered under non-disclosure agreements;
upload, post, email or otherwise transmit any postings or other material that infringes upon any patent, trademark, trade secret, copyright, right of privacy or publicity or any other proprietary right of any other party;
upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, or any other form of commercial solicitation;
upload, post, email, or otherwise transmit any postings that contain software viruses or any other code designed to interrupt, destroy or limit the functionality of computer software or any other hardware or equipment;
disrupt the flow of normal conversation on the Chat Boards or Bulletin Boards, or negatively affect the ability of other subscribers to use any area of the Clubhouse;
interfere with or disrupt the Website, the Clubhouse, or servers or networks connected thereto, or fail to comply with any provisions of this Agreement or the Terms and Conditions on the Website;
violate, whether intentionally or unintentionally (in our sole discretion)any applicable state, federal, or international law or regulation;
collect or store, or attempt to collect or store, personal data regarding other users of the Website or subscribers to the Clubhouse. You further agree that in the event that, despite the foregoing prohibition, you do use the Clubhouse to transmit or upload any such prohibited content, messages, postings, or other communications, we may, at our sole discretion, terminate your membership in the Clubhouse immediately upon written notice thereof, and deny you further access thereto. In the event that we terminate your membership under such circumstances, you agree that you will not be entitled to any refund of any membership fees paid prior to the date of your receipt of said termination notice; and you will not be charged for any additional membership fees after the date of your receipt of said notice.
We reserve the right to monitor some, all or no areas of the Website and the Clubhouse for adherence to the provisions of this Agreement, including Chat Boards and Bulletin Boards. You acknowledge that by providing you with the ability to distribute postings in the Chat Boards and Bulletin Boards, we are acting as a passive conduit for such distribution and that we are not undertaking any obligation or liability relating to any postings that you or any other subscriber may upload to the Clubhouse. We reserve the right to remove without notice any postings for any reason; however, we have no obligation to delete postings that you may find objectionable or offensive.
12. Permission of Parent or Guardian: INDIVIDUALS UNDER THE AGE OF 13 ARE NOT PERMITTED TO SUBSCRIBE TO THESE SERVICES, and the Website is not intended for users under 13. Users between the ages of 13 and 18 must ask for their parent’s or guardian’s permission before viewing the Website. Neither the Website nor the Clubhouse has any intention of collecting personally identifiable information from
children under 13. Where appropriate, we take reasonable measures to inform children not to submit such information to the Website in response to advertisements, and not to join the Clubhouse. If a child has provided us with personally identifiable information, that child’s parent or guardian should contact Customer Service with a letter marked “Privacy-Urgent” to Richard Simmons Customer Service, [email protected], and indicate you request that all information submitted by the child be deleted from our database. We will use all reasonable efforts to delete such information from our database.
13. Copyright Complaints: Please note that RSI owns, protects and enforces copyright and other rights in its proprietary intellectual property, and respects the intellectual property rights of others. Materials may be made available in the Clubhouse and on the Website by third parties not within the control of RSI. It is our policy not to permit materials known by us to be infringing to remain in the Clubhouse. Please notify us promptly if you believe any materials on the Website or in the Clubhouse to infringe on the intellectual property rights of another. Upon our receipt of a proper notice of claimed infringement under the Digital Millenium Copyright Act (“DMCA”), RSI will respond expeditiously to remove the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Notices of alleged infringement must be sent marked “Privacy-Urgent” to Richard Simmons Customer Service, [email protected]
14. Indemnification. You agree to indemnify, hold harmless, and, at our option, defend RSI and its Affiliates, and our and their officers, directors, employees, stockholders, agents, contractors and representatives from and against any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorney’s fees and expenses) arising from your improper use of the Clubhouse or our products or offerings, your violation of these Terms and Conditions, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
15. Governing Law. These Terms and Conditions shall be governed by the laws of the State of California, without giving effect to any principles of conflicts of laws. By using or accessing the Clubhouse, you agree that any action at law or in equity arising out of or relating to your use of the Clubhouse or these Terms and Conditions will be filed only in the state or federal courts in the State of California, County of Los Angeles, and you hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action.
16. Miscellaneous Terms.
Legal Fees: In any action against us arising from the use of the Clubhouse, the
prevailing party shall be entitled to recover al legal expenses incurred in connection with the action, including but not limited to its costs and reasonable attorney’s fees and expenses.
Severability: If any provision of these Terms and Conditions should be unlawful, void, or for any reason unenforceable, that provision shall be deemed severable from these Terms and Conditions, and shall not effect the enforceability of any remaining provisions.
Assignment: We may assign our rights and obligations hereunder, and these Terms and Conditions will inure to the benefit of our successors, assigns, and licensees. You may not assign your rights and obligations hereunder without our prior express written consent.
Waiver: The failure of either party hereto to insist upon or enforce the strict performance of the other party with respect to any provision hereof, or the failure to exercise any right under these Terms and Conditions, shall not be construed as a waiver of said right (s), and the party’s right to assert or rely upon any such provision in that or any other similar instance shall remain in full force and effect.