TERMS OF SERVICE
These Terms of Service (“Terms”) govern your use of the Helf website, any Helf mobile application, application programming interfaces, content, products and other services offered by Helf, as well as Helf services offered through third parties integrating Helf functionality (collectively, the “Services”). Helf, Inc. (“Helf”, “Company”, “we”, “our” or “us”) provides the Services. “You” refers to you as a user of the Services.
THE DISPUTE RESOLUTION PROVISION IN SECTION 24 OF THESE TERMS CONTAINS A MUTUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRES YOU AND Helf TO RESOLVE DISPUTES WITH EACH OTHER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. PLEASE REVIEW THE DISPUTE RESOLUTION PROVISION IN THESE TERMS CAREFULLY. BY ENTERING INTO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
The Services include a marketplace technology platform that enables third-party exercisers (each, a “User”) and third-party personal trainers (“Personal Trainers”) to connect with each other. However, Helf has no control over the conduct of any Personal Trainers or any other User of the Services. YOU ACKNOWLEDGE AND AGREE THAT HELF IS A TECHNOLOGY SERVICES PROVIDER THAT DOES NOT PROVIDE PERSONAL TRAINING SERVICES.
1. Acceptance of these Terms
By entering into these Terms, and/or by using or accessing the Services, you expressly acknowledge that you understand these Terms (including the dispute resolution and arbitration provisions below) and accept all of its terms. BY USING
THE SERVICES, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE SERVICES.
2. Changes to these Terms
Helf may, in its sole discretion, amend these Terms and modify or update the Services from time to time. If we change these Terms, we will give you notice by posting the revised Terms on this page. Please review this page periodically to ensure you are up-to-date with any changes. Those changes will go into effect on the revision date shown in the revised Terms. Your continued use of the Services will constitute your acceptance of the amended Terms.
3. Additional Terms
4. Your Consent to Receive Calls, Text Messages, Emails and Other Communications
You expressly consent to receive and accept communications from Helf, our Affiliates (as defined below) and their respective representatives, including via email, phone calls and text messages (including by an automatic telephone dialing system or a prerecorded voice), push notifications or other comparable means at any of the email addresses and/or phone numbers provided by you or on your behalf to Helf. You agree that the foregoing authorized communications may be initiated for any transactional, customer service, advertising, marketing, promotional, debt collection, account administration or other purposes. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PRERECORDED OR AUTODIALED PROMOTIONAL, ADVERTISING OR MARKETING (COLLECTIVELY, “MARKETING”) CALLS OR TEXT MESSAGES AS A CONDITION OF PURCHASING ANY PROPERTY, GOODS OR SERVICES. IF YOU WISH TO OPT OUT OF MARKETING CALLS, EMAILS OR TEXT MESSAGES FROM US, YOU AGREE TO OPT OUT BY FOLLOWING ANY UNSUBSCRIBE INSTRUCTIONS PROVIDED TO YOU IN THOSE COMMUNICATIONS OR BY CONTACTING CUSTOMER SERVICE AT INFO@THEHELFAPP.COM. If you receive a marketing call from Helf, you also may opt-out of receiving future marketing calls by communicating a do-not-call request to our representative before you hang up. If you wish to register an account with Helf without agreeing to receive autodialed or prerecorded marketing calls or text messages from Helf and our Affiliates, please contact a Customer Success representative for assistance at email@example.com. Standard text messaging and data charges charged by your wireless service carrier will apply to text messages we may send. You represent and warrant that you are authorized to approve the receipt of calls and text messages at any phone number you provide to us in connection with your account or your use of our Services and to approve any related carrier charges. PLEASE BE ADVISED THAT, IF YOU OPT OUT OF MARKETING COMMUNICATIONS, HELF MAY STILL SEND YOU COMMUNICATIONS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN YOU, HELF AND/OR OTHER USERS OF THE PLATFORM, INCLUDING THE SERVICES YOU PROVIDE TO OR RECEIVE FROM OTHER USERS OF THE PLATFORM. YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXT MESSAGES OR OTHER COMMUNICATIONS MAY IMPACT YOUR ABILITY TO USE THE SERVICES.
You must be at least 18 years old to use the Services. If you are under the age of majority in your state of residence or a minor, then your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Services with permission from your parent or legal guardian.
6. User Account, Password and Security
For certain types of features available through the Services, we require the use of encryption technologies provided for your protection and/or your use of a UserID and password after setting up an account with us. We use reasonable precautions to protect the privacy of your UserID, password, account information and credit card information by utilizing a Secure Socket Layer ("SSL") connection. Accordingly, your UserID, password, account information and credit card information are encrypted using an SSL connection and are not expected to be read in an intelligible form as they travel to the Services. You, however, are ultimately responsible for protecting your UserID, password, account information and credit card information from disclosure to third parties, and you are not permitted to circumvent the use of required encryption technologies. You agree to (a) immediately notify Helf of any unauthorized use of your UserID, password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session. While we provide certain encryption technologies and use other reasonable precautions to protect your confidential information and provide suitable security, we do not and cannot guarantee or warrant that information transmitted through the internet is secure, or that such transmissions are free from delay, interruption, interception or error.
In creating and using your account for the Services, you agree to: (i) provide true, accurate, current and complete information about yourself on any registration form required for the Services (such information being the "Registration Data"); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Helf has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, then we have the right to suspend or terminate your account with us and refuse any and all current or future use of your account.
Your Helf account and UserID is non-transferable, and all Users are required to take preventative measures to prevent others from accessing or using the Services with their UserID and password.
7. Helf as a Marketplace Technology Platform
The Services include a geolocation technology platform that connects Personal Trainers with Users. We do not provide any personal training services and make no representations or warranties about the quality of the training or other services provided by your Personal Trainer, or about your interactions and dealings with your Personal Trainer or other Users. Helf does not employ, recommend or endorse Personal Trainers, and we are not responsible or liable for the performance or conduct of Personal Trainers, whether online or offline. Helf provides Personal Trainers with access to third-party vendors that perform background checks and verifications. Helf itself does not conduct background checks and does not independently verify information in the background checks. Helf is not responsible or liable in any manner for any background checks.
8. Payment Terms for Users
As a User, you understand that use of the Services may result in you owing fees to the Personal Trainer for the training services you receive from that Personal Trainer. Helf will facilitate your payment of the applicable charges on behalf of the Personal Trainer through third-party payment processors, with whom you will be required to establish an account in order to access the Services. Payment of such charges in such manner will be considered the same as payment made directly by you to the Personal Trainer. Charges will be inclusive of applicable taxes where required by law. Any charges that you pay will be final and non-refundable regardless of your decision to terminate usage of the Services, Helf’s decision to terminate your usage, any disruption of the Services, or any other reason whatsoever, unless otherwise determined by Helf.
All charges are due immediately and Helf, or a third-party payment processor, will process your payment on behalf of the Personal Trainer using the primary payment method designated by you in your Helf account. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Helf may, as the Personal Trainer’s limited payment collection agent, use a secondary payment method in your account, if available.
Once you request a training service, you agree to pay the Personal Trainer the agreed-to price and honor the other terms of such booking. You may elect to cancel your request for services from a Personal Trainer at any time prior to such Personal Trainer’s arrival, in which case you are subject to a cancellation fee. The fees owed to Personal Trainers do not include any tip or gratuity for the Personal Trainer. While you are free to tip any Personal Trainer who provides you with services obtained through the Services, you are not required to do so. After you have received services or goods through the Services, you will have an opportunity to rate your experience and leave additional feedback about your Personal Trainer.
In addition to the above fees and charges, you understand and acknowledge that you may incur ancillary charges in connection with your receipt of training services from Personal Trainers (“Charges”). These Charges may include one or more of the following: (a) cancellation fee, (b) service fee, (c) trust and safety fee, (d) surcharges, (e) convenience fee, and (f) other fees. A description of any Charges will be available on the Services. You have absolute discretion to request or not request services from a Personal Trainer if the total applicable fee or charge is not acceptable to you.
From time to time, Helf may, in its sole discretion, make available certain promotions, offers, credits, rewards, subscriptions or referral links or codes to User (the “Promotions”). Such Promotions may be provided to User through the Services, by email or otherwise made available electronically by Helf. Such Promotions are only valid for redemption through the Services and are not transferable or redeemable for cash except as required by law. Each Promotion is a limited time offer and is valid only for the time and purpose and under the terms and conditions specified therein, which may include eligibility, time and location requirements. Helf, at its sole discretion, reserves the right to issue Promotions with different features, discounts, offers or deals to any User or group of Users determined solely by Helf. These Promotions, unless made to you, will have no bearing whatsoever on your use of the Services, or any Promotions offered to you. Helf reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promotions that was made in error or fraudulently where illegal behavior was detected, or where the User was found to be in violation of the terms of the Promotion, these Terms or the Additional Terms. Promotions may be modified, disabled or withdrawn by Helf at any time for any reason or no reason without any liability to Helf.
You acknowledge and agree that Helf may limit or temporarily or permanently suspend your use of or access to the Services if: (i) you have provided inaccurate, fraudulent, outdated or incomplete information regarding a payment method, (ii) any amounts you owe for personal training services are overdue or in default, or (iii) Helf believes in good faith that such action is reasonably necessary to protect the personal safety or property of Helf, our Users, any third-party payment processor or third parties, or to prevent fraud or other illegal activity.
9. Acceptable Use of the Services
You are responsible for your use of the Services, and for any use of the Services made using your account, whether or not authorized by you. Our goal is to create a positive, useful and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other Users, third parties or to us. In particular, when you use the Services, you may not:
violate any law or regulation or use the Services for any unintended purposes;
violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
provide false information in your profile on, or registration for, the Services;
post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
send unsolicited or unauthorized advertising or commercial communications, such as spam;
engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from or through the Services;
transmit any viruses, malicious codes or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
stalk, harass, or harm another individual;
impersonate any person or entity, maintain more than one account (or, if Helf suspends or terminates your account, create additional accounts) or perform any other fraudulent activity, such as phishing, marketplace collusion, promotional abuse, and payment fraud;
use any means to scrape or crawl any Web pages contained in the Services;
use the Services to identify Personal Trainers to complete off-line transactions that circumvent your payment obligations for the Services;
use the Services for purposes of competing with Helf;
authorize other Users to use your user status or transfer your account to any other person or entity;
attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services;
interfere with Helf’s provision of, or any other User’s use of, the Services;
attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Services;
solicit another User’s username and password for the Services;
post reviews about Personal Trainers that are not based on your personal experience, that are intentionally inaccurate, or that violate these Terms or any Additional Terms;
use the Services to arrange for any other arrangement other than the agreed upon training services; and/or
advocate, encourage, or assist any third party in doing any of the foregoing.
10. User Content
The Services allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content. In other words, you own your personal data.
When you upload, submit, store, send, or receive User Content to or through the Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (including, but not limited to, translations, adaptations, or other changes we make so that User Content works better with the Services), publicly perform, publicly display, and distribute your User Content in order to operate, promote, market and improve the Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is irrevocable, sublicensable, fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Services.
You promise that:
you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above (including having the necessary consents and releases from any individuals who appear or whose Users appear in your User Content); and
your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content for any reason. We reserve the right to use, share and display your User Content (including User’s reviews of Personal Trainers or Personal Trainer’s reviews of Users) in any manner in connection with our business without attribution to you or your approval. You acknowledge and agree that we are distributors (without any obligation to verify) and not publishers of your User Content or Personal Trainer’s reviews, and we reserve the right to monitor, screen, edit or remove your User Content or Personal Trainer’s reviews if that content includes obscenities or other objectionable content, include an individual’s name or other personal information, or violates any privacy laws, other applicable laws or our content policies. Our failure to enforce our rights under these Terms in one instance does not create a waiver of our right to enforce them in another instance. We are not obligated to provide you with copies of your User Content, nor will we have any liability to you for any deletion, disclosure, loss or modification of your User Content.
If you include your name, image, likeness or voice in any of your User Content, you grant us permission to use your name, image, voice, and likeness, and hereby release us from any liability arising from that use, including, but not limited to, claims for invasion of privacy, infringement of your right of publicity, and defamation (including libel and slander).
Helf offers an in-app chat feature to better connect Users with Personal Trainers. Data and content sent through the chat feature is User Content that is subject to these Terms. We are able to access this User Content and reserve the right (but have no obligation) to monitor, screen, edit or remove your User Content. Users should be mindful when communicating information to third parties, and we recommend that you refrain from disclosing or sending sensitive information through the chat feature, such as personal financial information, log-in account information and passwords, and/or personal contact information (including phone numbers). -12-
11. Consent to Personal Trainer Photo and Video Activities
As a User, you understand and agree that some Personal Trainers may take photographs, videos, and other forms of recorded media during the course of providing services to you. You further understand and agree that Personal Trainers may post, upload, share, store, or otherwise provide any such photographs, videos, or other forms of recorded media to Helf through the Services or to their own social media, the Internet or otherwise. You understand and agree that such recorded media may be used not only to provide information to you as part of the Services, but also to assist Helf in quality control, safety, and promotional and marketing activities. You agree that you have no right, title, or other ownership interest to or in such photographs, videos, or other forms of recorded media, and that the use of such media, including the posting or display of such media, is within Helf’s and the Personal Trainers’ sole discretion. Helf hereby grants you a limited, revocable, non-exclusive license to copy and use photographs, videos and other forms of recorded media that feature you and that are made available by Helf through the Services, solely for non-commercial purposes (e.g., posting a photo on your social media accounts).
12. User Obligations
As a User, you hereby represent, covenant, and warrant to Helf and each Personal Trainer who provides you with training services that: (a) you are the person(s) who requested training services; (b) at the time you order training services, neither you nor anyone else in your immediate household is experiencing symptoms of COVID19 or, within the immediately prior ten (10) day period, has been exposed to anyone experiencing symptoms of COVID19; (c) you have divulged all material information about your health, including any pre-existing medical conditions and other behavioral issues that may be relevant to or impact a Personal Trainer’s ability to provide training services; and (d) you will comply with all laws and ordinances applicable to your activities conducted through the Services. If you elect to use the Services, you agree to provide accurate information about yourself and keep this information up-to-date, including any relevant material information or medical data.
You acknowledge and agree that, if you allow another person to access your account or if you request a personal training service for someone other than yourself, in each case in violation of these Terms, you and that other person will be jointly and severally liable for all acts and omissions in connection with engaging the Services, including all costs incurred or associated with that engagement.
You are fully responsible for your actions during each session. You understand, acknowledge and agree that, as between you and Helf, you will be liable for any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, but not limited to, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, the behavior of your Personal Trainer, including, but not limited to, claims by third parties (including Personal Trainers) for damage, loss or injuries. Helf will cooperate with appropriate law enforcement authorities to provide requested information regarding the situation. Be sure to review your applicable policy(ies) and address any questions regarding appropriate liability coverage with your insurance carrier and/or legal representatives prior to utilizing a Personal Trainer through the Services.
Personal Trainers have the sole and absolute discretion to reject or refuse any personal training services that you may request if they violate any law or regulation, are dangerous or unsafe or otherwise violate these Terms or any Additional Terms. If you sustain any physical injuries caused by your Personal Trainer or that happen during any personal training services, you waive, release and promise never to assert any claims or causes of action arising from failure to seek such care, whether or not now known, against Helf or its predecessors, successors or past or present subsidiaries, stockholders, directors, officers, employees, consultants, attorneys, agents, assigns or the applicable Personal Trainer with respect to any matter, including, but not limited to, any claims of negligence, emotional distress, fraud, breach of contract, or breach of the covenant of good faith and fair dealing. You expressly waive and release any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads 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.” Users are solely responsible for the costs of any resulting medical treatment or procedure.
As a User, you acknowledge that Helf is in the business of connecting Users and Personal Trainers, and that that business is how Helf earns its income. As a result, User agrees that, if User solicits a Personal Trainer that User first met and/or learned about through the Helf platform to provide off-platform personal training services to User, then Helf is entitled to remove both the User and the Personal Trainer from the app and website due to a violation of these Terms.
14. Copyright and Intellectual Property Policy
Helf will not tolerate copyright infringement and reserves the right to block, disable, or otherwise remove any User Content uploaded to or posted on the Services, as well as terminate your access to the Services, if you engage in copyright or other intellectual property infringement. The law provides for civil and criminal penalties for copyright and other intellectual property law infringements. Displaying, performing, storing, copying, distributing, and/or otherwise making available or using any content from the Services is prohibited, unless specifically authorized by Helf in writing. Accordingly, no such Content may be used on another website or mobile application without express written permission from Helf.
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act (the “DMCA”). If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to our Copyright Agent at the address set forth below:
Your address, phone number, and email address;
A description of the copyrighted work that you claim has been infringed (and registration information if such work is registered with the Copyright Office);
The specific location in the Services of the alleged infringing material;
A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or that you are authorized to act on behalf of the copyright owner.
For clarity, only copyright infringement notices should be sent to our Copyright Agent at firstname.lastname@example.org. You can also send notice of copyright infringement to us by mail, addressed to: Helf, Inc., PO Box 243, Hermosa Beach, CA 90254, Attn: DMCA Claims.
You acknowledge that, if you fail to comply with all of the requirements of this section, your notice may not be valid.
If you believe that the content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
Your physical or electronic signature;
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content;
Your name, physical address, phone number, and email address;
A statement that you consent to the jurisdiction of the federal court in Phoenix, Arizona; and
A statement that you will accept service of process from the person who provided notification of the alleged infringement.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that, when we forward the counter-notification, it will include your personal information. By submitting a counter-notification, you consent into having your personal information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we will reinstate the material as soon as reasonably practicable.
15. Call Recording and Monitoring
You agree that all phone conversations between you and Helf (or our Affiliates and representatives), or other platform Users when made via the platform, may be monitored and recorded for quality assurance and training purposes.
17. Third-Party Content
18. Third-Party Applications
These Terms apply to your use of the Services, including the Helf applications (each an “Application”) made available by third-party providers, such as Apple, Inc. and Google, Inc. (each a “Provider”) through their respective online stores, but the following additional terms also apply to each Application:
Both you and Helf acknowledge that these Terms are concluded between you and Helf only, and not with any Provider, and that a Provider is not responsible for the Services;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the Application in connection with a Provider-branded device that you own or control and as permitted by the Provider’s usage rules set forth in its terms of service, except that such Application may be accessed and used by other accounts associated with the purchaser via family sharing or volume purchasing (if applicable);
You acknowledge and agree that a Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify the Provider of such failure; upon notification, the Provider’s sole warranty obligation to you will be to refund to you the purchase price, if any, paid for that Application;
You acknowledge and agree that Helf, and not the Provider, is responsible for addressing any claims that you or any third party may have in relation to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Helf's and not the Provider’s responsibility;
You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, Helf, and not the Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and Helf acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use;
Both you and Helf acknowledge and agree that the Provider and its subsidiaries are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, the Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof; and
If you use the Application to obtain real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
19. Third Party Beneficiaries
Personal Trainers (when these Terms are agreed to between Helf and a User) and Users (when these Terms are agreed to between Helf and a Personal Trainer) are each a third-party beneficiary of these Terms and, upon acceptance of these Terms, the Personal Trainer or User (respectively) will have the right (and will be deemed to have accepted the right) to enforce these Terms as the third-party beneficiary hereof, including, but not limited to, the Arbitration Agreement & Waiver of Certain Rights.
20. Suspension and Termination
We reserve the right to not provide the Services to any person. We also reserve the right to suspend or terminate any User’s right to access or use the Services at any time, in our sole discretion, for any reason (or no reason at all), including, but not limited to, with respect to a User, below average ratings or reviews of you by Personal Trainers. If your conduct on the Services or with respect to the Services is inappropriate or unsafe or if you violate any of these Terms or any Additional Terms, your permission to use the Services will automatically terminate.
21. Disclaimer and Limitations on Our Liability
YOUR USE OF THE SERVICES AND THE TRAINING SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HELF AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. IN PARTICULAR, HELF AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES. HELF AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY, INJURY TO PROPERTY, OR OTHER DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (c) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (d) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (e) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE. YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY WHO MAY POSE HARM OR RISK TO YOU OR OTHERS. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SERVICES.
YOU FURTHER ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION, DATA AND/OR CONTENT. WE HAVE NO OBLIGATION TO PROVIDE SECURITY. YOU WILL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL OF YOUR DATA AND USER CONTENT THAT MAY APPEAR ON THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, COMPENSATORY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SERVICES, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR EXAMPLE, WE WILL NOT BE RESPONSIBLE FOR YOUR CONDUCT OR ANY THIRD-PARTY’S CONDUCT, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES THAT MAY RESULT FROM YOUR USE OF THE SERVICES, OR FOR ANY INTERACTIONS WITH PERSONAL TRAINERS OR OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE. FURTHER, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES, DAMAGE OR HARM THAT ARISE OUT OF YOUR VIOLATION OF THESE TERMS OR ANY ADDITIONAL TERMS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES THAT YOU HAVE ACTUALLY PAID TO US DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO SUCH LIABILITY.
You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of the bargain between the parties.
22. Children Under Age 13
Children under the age of thirteen (13) are prohibited from submitting any personally identifiable information. If we learn that a User under the age of thirteen (13) is publicly accessing or using the Services, or posting or sharing personally identifiable information on or through the Services, then we will use commercially reasonable efforts to block that User from using the Services.
You agree to indemnify and hold harmless Helf and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, but not limited to, reasonable attorneys’ fees and legal costs) of any kind or nature, arising from or relating to: (a) any actual or alleged breach of these Terms or any Additional Terms by you or anyone using your account, including claims arising from a breach of any of the User Obligations set forth in these Terms or any Additional Terms; (b) any transactions, interactions or disputes with other Users of the Services, whether online or offline; (c) your misstatements, omissions, misrepresentations, or violations of applicable law; (d) any of Your Content; and/or (e) any text messages or other communications that you initiate to other Users or to third parties through the Services. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
24. Arbitration Agreement & Waiver of Certain Rights
For purposes of this Section 24 (“Arbitration Agreement”), references to “Helf” include our Affiliates.
a. Applicability. You and Helf agree that any dispute or claim arising out of or relating in any way to your use of (or inability to use) the Services, these Terms, any Additional Terms or your receipt of any communications from Helf will be resolved by binding arbitration on an individual basis, rather than in court, except that you may assert claims in small claims court if your claims qualify, remain in such court and advance solely on an individual basis. “Disputes” or “claims” under this provision will include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: the Terms, any Additional Terms and prior versions thereof (including the applicability, breach, termination, enforcement, interpretation or validity thereof), the Services, any other goods or services made available through the Services, your relationship with Helf, the threatened or actual suspension, deactivation or termination of your account with Helf, payments made or owed by you or any payments made or allegedly owed to you, any promotions or offers made by Helf, any communications you receive from Helf, any claims for fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws, claims arising under antitrust laws, claims arising under any federal or state privacy laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act, and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. Notwithstanding anything to the contrary herein, if you are an employee of Helf, this Arbitration Agreement will not apply to any claims or disputes arising out of your employment relationship with Helf and any such claims and disputes may be governed by separate agreements.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, the initiating party must notify the other party in writing by certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (i) the name and address of the party seeking arbitration, (ii) a statement of the legal and factual basis of the claim, and (iii) a description of the remedy sought. Any demand for arbitration by you must be delivered to President, Helf, Inc., PO Box 243, Hermosa Beach, CA 90254. The arbitration will be conducted by the American Arbitration Association (“AAA”), an established alternative dispute resolution provider, and conducted under AAA’s Consumer Arbitration Rules and procedures in effect at the time of the demand, as modified by these Terms. However, a single arbitrator will be selected according to AAA’s Commercial Arbitration Rules. AAA’s rules are available online at www.adr.org. AAA’s rules are also available by calling AAA at 800-778-7879. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay AAA’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from AAA, then Helf will pay them for you. In addition, Helf will reimburse all of AAA’s filing, administrative, hearing and/or other fees for proceedings involving claims totaling less than $10,000, unless the arbitrator determines that your claims are frivolous. Helf will not seek attorneys' fees and costs in arbitration unless the arbitrator determines that your claims are frivolous. Helf will pay all fees and costs it is required by law to pay. You may choose to have the arbitration conducted by teleconference or videoconference, based on written submissions, or in person at a mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator -- not a court -- will have exclusive authority to (i) determine the scope and enforceability of these Terms (including the applicability of this Arbitration Agreement), (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of these Terms (including this Arbitration Agreement), including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable, and (iii) resolve any disputes or controversies regarding or arising out of the applicability of these Terms, and/or any other concurrent agreement, to any particular claim or dispute, consistent with AAA’s Consumer Arbitration Rules. The arbitration will decide the rights and liabilities, if any, of you and Helf. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including this Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Helf.
d. Waiver of Jury Trial. YOU AND HELF HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PARTY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PARTY. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the federal or state court located in Phoenix, Arizona, for adjudication before a judge, not a jury. All other claims will be arbitrated.
f. 30-Day Right to Opt Out. You have the right to opt out of the provisions of these Terms that mandate arbitration by emailing a written notice of your decision to opt out to: email@example.com, within 30 days after first becoming subject to a version of these Terms containing an arbitration provision. Your notice must include your name and address, your Helf username (if any), the email address you used to set up your Helf account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of arbitration, all other parts of these Terms will continue to apply to you. If you are a Personal Trainer, opting out of arbitration has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with Helf. If you are a Personal Trainer, a timely opt out of the Arbitration Agreement in these Terms will also apply.
g. Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Helf.
h. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that, if Helf makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by emailing Helf a notice of your rejection at the following address: firstname.lastname@example.org. Your rejection of any such changes will not affect the enforceability of any version of this Arbitration Agreement, or of any other agreement to arbitrate, that you previously entered into with Helf.
25. Local Laws
Helf makes no representation that the Services are appropriate or available for use in jurisdictions outside the United States. Access to the Services from jurisdictions where such access is illegal is prohibited. If you choose to access or use the Services from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. Helf is not responsible for any violation of law. You may not use or export any content or materials relating to or obtained through the Services in violation of U.S. export laws and regulations. You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the United States).
26. Other Provisions
Under no circumstances will Helf be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of Arizona, consistent with the Federal Arbitration Act, without giving effect to any conflict of laws rules or provisions. If the Arbitration Agreement above is found not to apply to you or a particular claim or dispute, then you agree that any action of whatever nature arising from or relating to these Terms or the Services will be filed only in the state or federal courts located in Phoenix, Arizona. You and Helf consent and submit to the personal jurisdiction of such courts for the purposes of any such action and waive any rights to a trial before a jury.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions. Our failure to enforce any right or provision of these Terms will not prevent us from enforcing that right or provision in the future.
We may freely assign our rights and obligations under these Terms, including in connection with a merger, acquisition, reorganization, sale of assets or equity, or by operation of law. You may not assign any of your rights or obligations under these Terms without the prior written consent of Helf and any purported assignment in violation of this provision will be null and void.
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