Mindbody Consumer Agreement
Last Updated: September 18, 2020
This Mindbody Consumer Agreement (the “Agreement”) is a legal agreement between you (including your heirs, assigns, and successors) (collectively, “you,” “your”) and MINDBODY, Inc. and its affiliates (collectively, “Mindbody,” “we,” “our” or “us”) governing your use of Mindbody’s consumer web-based application and/or mobile applications (collectively, the “Mindbody App”). Please read this Agreement carefully. By clicking on the “I Accept” button, completing the registration process, and/or downloading, and/or using the Mindbody App, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Mindbody, and (3) you have the authority to enter into this Agreement personally or on behalf of the company you have named as the user, and to bind that company to the Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE MINDBODY APP.
PLEASE BE AWARE THAT SECTION 27 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND MINDBODY TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1. Mindbody App Registration and Account Activation.
The Mindbody App allows you to create one (1) universal consumer profile that enables you to perform aggregated searches, then schedule and pay for wellness services, including fitness, beauty, integrative health and other services offered by thousands of participating businesses and independent practitioners who subscribe to our online business management software (“Mindbody Subscribers”).
The Mindbody App also enables you to synchronize any consumer accounts you have previously created with Mindbody Subscribers, so that you may view your history of purchases and visits with those providers, use any current series, membership, gift card or account credits you may have with those providers, and to renew or purchase additional services.
The Mindbody App, subject to these terms and payment of applicable fees, may also provide you with an opportunity to purchase a product which will allow you to view video on demand content and to participate in livestreamed fitness classes (“Flex”). For the purposes of this Agreement, Flex shall be considered part of the Mindbody App and references to the Mindbody App shall be read as including Flex when made available via the Mindbody App.
To make credit or debit card purchases from Mindbody or the Mindbody Subscribers, you must complete the registration and open an account within the Mindbody App (“Mindbody App Account”). You do this by providing your first and last name and email address, completing your email verification, and associating one (1) or more valid credit or debit cards with that Mindbody App Account. You must provide accurate and up-to-date information. You are solely responsible for managing your Mindbody App Account. Your Mindbody App Account is non-transferrable and may not be sold, combined or otherwise shared with any third party. We reserve the right to suspend or terminate your Mindbody App Account if you provide inaccurate, untrue, or incomplete information or if you attempt to use your Mindbody App Account to engage in illegal or unethical activities.
If you register for the Mindbody App through your Facebook account (“Facebook Account”), you are allowing Mindbody to access your Facebook Account as permitted under the applicable terms and conditions that govern your use of your Facebook Account. You represent that you are entitled to disclose your Facebook Account login information to Mindbody and/or grant Mindbody access to your Facebook Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of your Facebook Account and without obligating Mindbody to pay any fees or making Mindbody subject to any usage limitations imposed by Facebook. PLEASE NOTE THAT YOUR RELATIONSHIP WITH FACEBOOK IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH FACEBOOK, AND MINDBODY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY FACEBOOK IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN YOUR FACEBOOK ACCOUNT.
2. Accepted Payment Methods.
The Mindbody App allows you to make payments by those methods accepted by Mindbody Subscribers. Typically, these are card-based methods, including cards bearing the trademarks of Visa Inc., MasterCard International Inc., Discover Inc., and/or American Express Inc. (collectively, the “Networks”). Please note that not all Mindbody Subscribers accept all payment methods, including all card-based payment methods. The Networks accepted by each Mindbody Subscriber are displayed in the Mindbody App. We are not a bank, and do not offer banking services as defined by the United States Department of Treasury. We also do not offer money service business services as defined by the United States Department of Treasury. You can associate with your Mindbody App Account any U.S.-issued and most non-U.S. issued credit, debit, pre-paid, or gift cards with a Visa, MasterCard, American Express, or Discover logo. Mindbody Subscribers may update at any time the list of card types that they accept and you may associate with your Mindbody App Account. You may not associate Health Savings Account cards with your Mindbody App Account, even if they have a Visa, MasterCard, American Express, or Discover logo on them.
3. Your Authorization for Purchases Made Through the Mindbody App.
By associating a payment card with your Mindbody App Account, searching for and reserving services in the Mindbody App, and agreeing to pay for those services within the Mindbody App, you are authorizing a charge to your payment card as necessary to complete the purchase. In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made through the Mindbody App, you also authorize a credit to your payment card to accomplish that transaction.
Purchases you authorize through the Mindbody App may also be subject to terms and conditions set forth by the Networks and/or the entities that issue your card. You are responsible for complying with those terms and conditions, and you are responsible for charges and related fees and billing terms imposed by those terms and conditions as well as any fees and/or surcharges imposed by Mindbody or a Mindbody Subscriber.
4. Compatible Mobile Devices and Third Party Carriers.
Your Mindbody App Account permits you to make payments on a compatible mobile device. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls-sometimes referred to as “jailbreaking”, are not compatible mobile devices. You acknowledge that the use of a modified device to use the Mindbody App is expressly prohibited, constitutes a violation of the terms of this Agreement, and is grounds for termination of your Mindbody App Account. Mindbody does not warrant that the Mindbody App will be compatible with your mobile device or third party carrier.
Your use of the Mindbody App may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
5. App Stores.
You acknowledge and agree that the availability of the Mindbody App is dependent on the third party from whom you received the Mindbody App license, e.g., the Apple App Store or Google Play ("App Store"). You acknowledge that this Agreement is between you and Mindbody and not with Apple, Google, or their App Stores. Mindbody, not Apple, Google, or their App Stores, is solely responsible for the Mindbody App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mindbody App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Mindbody App. You agree to comply with, and your license to use the Mindbody App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Mindbody App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
6. Restrictions on Use.
By using the Mindbody App, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a "Minor"), that you are using the Mindbody App with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Mindbody App and agree to this Agreement. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to this Agreement and to fully indemnify and hold harmless Mindbody if the Minor breaches any of the terms of this Agreement. If you are not at least 13 years old, you may not use the Mindbody App at any time or in any manner or submit any information to the Mindbody App or Mindbody.
The Mindbody App and your Mindbody App Account may only be used in a country or territory where current Mindbody Subscribers exist and the laws of that country or territory permit its use. You may not export the Mindbody App directly or indirectly, and you acknowledge that the Mindbody App may be subject to export restrictions imposed by U.S. law, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII).
By creating a Mindbody App Account, you also confirm that you will not make payments in connection with the following businesses or business activities: (1) any illegal activity, (2) credit counseling or repair agencies, (3) credit protection or identity theft protection services, (4) direct marketing or subscription offers or services, (5) infomercial sales, (6) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (7) multi-level marketing businesses, (8) inbound or outbound telemarketers, (9) prepaid phone cards or phone services, (10) rebate based businesses, (11) upsell merchants, (12) bill payment services, (13) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (14) financial institutions offering manual or automated cash disbursements, (15) financial institutions offering merchandise and services, (16) sales of money orders or foreign currency by non-financial institutions, (17) wire transfer money orders, (18) high-risk merchants, including telemarketing merchants, (19) service station merchants, (20) automated fuel dispensers, (21) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (22) internet/mail order/telephone order firearm or weapon sales, (23) internet/mail order/telephone order cigarette or tobacco sales, (24) drug paraphernalia, (25) hate products, (26) escort services, and/or (27) bankruptcy attorneys.
7. Mindbody Subscriber Loyalty Programs.
Mindbody Subscribers may choose to offer loyalty programs to reward their customers. These loyalty programs may be linked to your Mindbody App Account. Any such loyalty programs and any rewards associated with them are offered by the Mindbody Subscriber alone (and not by Mindbody). Should you have questions about any Mindbody Subscriber loyalty program, please ask the Mindbody Subscriber for more information about the program, including any applicable terms and conditions. Rewards associated with Mindbody Subscriber loyalty programs have no cash value, and Mindbody Subscriber may choose to discontinue its loyalty program(s) at any time.
8. Texting Features Consent.
Mindbody may, from time to time, offer text message programs, including one-time texts and subscription text services, where Mindbody or a Mindbody Subscriber texts you for alerts, promotions and other purposes (“SMS Texting Services”). For more information on these services, please visit SMS Texting Terms and Conditions.
To the extent you use any feature of the Mindbody App that enables you to send text message to device holders and you elect to use the feature, you acknowledge that Mindbody only provides a platform for you to send text messages through the Mindbody App and has no responsibility or liability for any such text messages or related message content. Your responsibilities as set forth in this Agreement will remain your sole responsibility and liability even if Mindbody offers advice or guidance regarding the text messages you transmit.
9. Unauthorized or Illegal Transactions.
We may decide not to process a transaction if we believe that the transaction is in violation of any Mindbody agreement or exposes you, other Mindbody users, our partners, including any Mindbody Subscribers, or Mindbody to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Mindbody App Account has been used for any unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Mindbody App Account, and/or any of your transactions with law enforcement.
10. Mindbody App Purchase Information.
11. Your Privacy.
12. Customer Service Disclaimer.
You understand and agree that Mindbody is not responsible for the goods and services that you purchase through the Mindbody App. Third-party merchants, including Mindbody Subscribers, and not Mindbody, provide those goods and services. These merchants, and not Mindbody, are responsible for customer service related to those goods and services, including the nature, content and quality of the class or appointment, and reservation, cancellation, return and refund policies, adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant’s personnel, policies, or processes. The Networks and/or other entity issuing your payment card, and not Mindbody, is responsible for customer service related to your payment card.
13. Disclosures and Notices.
You acknowledge and agree that Mindbody may provide disclosures and other notices required by law and other information about your Mindbody App Account to you electronically by posting them on the Mindbody App or by emailing the email address listed in your Mindbody App Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. You are responsible for providing Mindbody with your most current e-mail address. In the event that the last e-mail address you provided to Mindbody is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Mindbody’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
14. User Content.
In connection with registering for a Mindbody App Account, you may provide reviews, feedback and other content regarding Mindbody products and services or Mindbody Subscribers, including without limitation regarding the video on demand and/or livestreaming fitness classes made available via Flex. This content may include photos, name, alias, likeness, appearance, form or other materials or information uploaded to the Mindbody App (“User Content”). You agree that you will not upload User Content to the Mindbody App unless you have created that content yourself or you have permission from the copyright owner to do so.
In the event that you participate in livestreamed classes via Flex, you understand and agree that your participation in such livestreamed classes will be viewable by other participants in the livestreamed class as well as the instructor of such livestreamed class. Further, you understand and agree that such livestreamed classes, including video and/or audio of your participation in the same, may be recorded and offered as a video on demand content. Accordingly, your participation and the video and/or audio recording of the same will be “User Content” subject to the licenses granted below.
For any User Content that you upload to the Mindbody App, you grant us and our subsidiaries, affiliates, and successors a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, transferable, and sublicensable right and license to use, license, reproduce, modify, adapt, publish, translate, prepare derivative works of, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and display that User Content (in whole or in part) throughout the world in any media in order to provide and promote the Mindbody App and Mindbody’s business. You retain all rights in your User Content, subject to the rights granted to Mindbody in this Agreement. You may modify or remove your User Content via your Mindbody App Account or by terminating your Mindbody App Account. For User Content containing audio and/or video recordings or livestreams of my participation in Flex, you hereby waive all rights and release and discharge Mindbody from all manner of actions, causes of action, debts, accounts, contracts, claims and demands whatsoever, including defamation, invasion of right to privacy, publicity or personality or any similar matter, arising out of or relating to the use and exploitation of such User Content or your name, alias, likeness, appearance and form.
You agree not to upload to the Mindbody App or otherwise post, transmit, distribute, or disseminate through the Mindbody App, including without limitation via your participation in Flex, any content that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Mindbody’s or its partners’ products and services, as determined by Mindbody in its sole discretion; or (f) in Mindbody’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Mindbody App, or which may expose Mindbody, its affiliates, or users to harm or liability of any nature.
You acknowledge that Mindbody has no obligation to pre-screen, edit, or monitor any User Content, although Mindbody reserves the right in its sole discretion to refuse, remove, screen, edit or disable any User Content at any time and for any reason without notice. You understand that by using the Mindbody App, you may be exposed to User Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.
We expect users to respect the intellectual property of others. Please see our Intellectual Property Policy for more information on notifying us of copyright or trademark violations.
15. Intellectual Property Policy.
Mindbody respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy accessible at https://company.mindbodyonline.com/legal/terms-of-service/intellectual-p... (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. Any data or information submitted to the Mindbody App is subject to our Intellectual Property Policy.
16. Your Right to Terminate.
You may terminate this Agreement at any time by closing your Mindbody App Account and ceasing to use the Mindbody App.
17. Our Right to Suspend or Terminate.
We may terminate this Agreement and close your Mindbody App Account for any reason or no reason (with or without notice) at any time, including (but not limited to), if you (a) have violated the terms of this Agreement or any other agreement you have with Mindbody or Mindbody’s policies, (b) pose an unacceptable credit or fraud risk to us, and/or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct on the Mindbody App.
18. Effect of Termination.
If your Mindbody App Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Mindbody App, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that Mindbody shall not be liable to you or any third party for termination of access to the Mindbody App, or for deletion of your information or account data.
We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Mindbody App, or in connection with any termination or suspension of the Mindbody App. Any termination of this Agreement 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 as provided in this Agreement.
19. License Grant to You.
Subject to your compliance with this Agreement, Mindbody hereby grants you a personal, limited, non-exclusive, revocable, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mindbody App on a single mobile device that you own or control and to run such copy of the Mindbody App solely to find and reserve services and make purchases from Mindbody Subscribers in accordance with this Agreement. You will not: (a) modify, copy or create any derivative works based on the Mindbody App; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Mindbody App available to any third party; (c) reverse engineer or decompile any portion of the Mindbody App; (d) access or use (or allow a third party to access or use) the Mindbody App for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Mindbody App; or (f) otherwise use or exploit the Mindbody App in any manner not expressly permitted by this Agreement. Furthermore, with respect to any app accessed through or downloaded from the App Store, you will comply with the applicable App Store’s terms and policies. You will be entitled to download updates to the Mindbody App, subject to any additional terms made known to you at that time, when Mindbody makes these updates available. You may be required to accept updates to the Mindbody App in order to continue to use the Mindbody App.
20. Restrictions on Use.
You may use the Mindbody App only to the extent that you obey all laws, rules, and regulations applicable to your use of the Mindbody App. While we want you to enjoy the Mindbody App, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Mindbody system using any manual process or robot, spider, scraper, or other automated means; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Mindbody; (iii) permit any third party to use or benefit from the Mindbody App via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Mindbody App or any Mindbody service or product, work around, bypass, or circumvent any of the technical limitations of the Mindbody App, use any tool to enable features or functionalities that are otherwise disabled in the Mindbody App, or decompile, disassemble or otherwise reverse engineer the Mindbody App; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Mindbody App, prevent access to or use of the Mindbody App by other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Mindbody App except as expressly permitted herein.
The Mindbody App is licensed and not sold. Mindbody reserves all rights not expressly granted to you in this Agreement. The Mindbody App is protected by copyright, trade secret and other intellectual property laws. Mindbody owns the title, copyright and other worldwide intellectual property rights in the Mindbody App and all copies of the Mindbody App. This Agreement does not grant you any rights to Mindbody’s trademarks or service marks.
You may choose to or we may invite you to submit comments or ideas about the Mindbody App, including without limitation about how to improve the Mindbody App or our other products (“Feedback"). You represent and warrant that you have all rights necessary to submit Feedback. By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Mindbody under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Mindbody does not waive any rights to use similar or related ideas previously known to Mindbody or developed by its employees, or obtained from sources other than you. Mindbody has no obligation to review any Feedback nor to keep any Feedback confidential, and Mindbody may use and redistribute Feedback for any purpose, without restriction and free of any obligation to acknowledge or compensate you.
You agree to release, indemnify, defend, and hold harmless Mindbody and its affiliates and their respective employees, officers, agents, directors, representatives, contractors, licensors, suppliers and service providers (collectively, the “Mindbody Parties”) from and against any and all third-party claims asserted against and of them, and all related costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to: (a) any actual or alleged breach by you of this Agreement; (b) your access to or use of the Mindbody App; or (c) any actual or alleged violation by you of the intellectual property, privacy or other rights of third party. This provision does not require you to indemnify any of the Mindbody Parties to the extent that a claim arises from any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Mindbody App.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold harmless the Mindbody Parties from and against any and all third-party claims asserted against and of them, and all related costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to any actual or alleged breach by you of this Agreement.
Mindbody reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mindbody in asserting any available defense and doing so will not otherwise excuse your indemnity obligations.
24. Representation and Warranties.
You represent and warrant to us that: (a) you are at least eighteen (18) years of age (or as otherwise provided in Section 6 above); (b) you are eligible to register and use the Mindbody App and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the Mindbody App, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Mindbody App; and (f) your use of the Mindbody App will be in compliance with this Agreement.
25. Disclaimer of Warranties and Conditions.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE MINDBODY APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE MINDBODY APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MINDBODY APP IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDBODY OR THROUGH THE MINDBODY APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MINDBODY, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT ANY CONTENT OR INFORMATION PROVIDED THROUGH THE MINDBODY APP, INCLUDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, OR RATINGS, REVIEWS OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE MINDBODY APP, IS ACCURATE, RELIABLE OR CORRECT; THAT THE MINDBODY APP WILL MEET YOUR REQUIREMENTS; THAT THE MINDBODY APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE MINDBODY APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT MINDBODY IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE MINDBODY APP’S INOPERABILITY, UNAVAILABLITY OR SECURITY VULBNERABLES, OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF ANY CONTENT DOWNLOADED OR OTHERWISE MADE AVAILABLE THROUGH USE OF THE MINDBODY APP, INCLUIDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, RATINGS, REVIEWS OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE MINDBODY APP. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE MINDBODY APP, OR THE CONTENT OR SERVICES MADE AVILABLE THROUGH THE MINDBODY APP SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE MINDBODY APP.
MINDBODY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MINDBODY APP OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MINDBODY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
26. Limitation of Liability and Damages.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDBODY, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE MINDBODY APP. UNDER NO CIRCUMSTANCES WILL MINDBODY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE MINDBODY APP, YOUR MINDBODY APP ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDBODY, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE MINDBODY APP; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MINDBODY APP; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE MINDBODY APP BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE MINDBODY APP; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MINDBODY, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL APPLY FULLY TO NEW JERSEY RESIDENTS.
The Mindbody App is controlled and operated from facilities in the United States, the United Kingdom and Australia. Mindbody makes no representations that the Mindbody App is appropriate or available for use in other locations. Those who access or use the Mindbody App from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Mindbody App if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Mindbody App are solely directed to individuals, companies, or other entities located in the United States.
27. Arbitration Agreement.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Mindbody and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement. If a dispute of any kind arises with a Mindbody Subscriber, you agree to resolve that dispute with the applicable Mindbody Subscriber. For any dispute that you have with Mindbody, we will make every reasonable effort to resolve any disagreements that you have with us. If those efforts fail, by using the Mindbody App, you agree that ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND MINDBODY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO THE PREVIOUS SENTENCE WILL BE RESOLVED by binding arbitration, rather than in court, except that (i) you or Mindbody may assert claims in small claims court if the claims qualify; and (ii) you or Mindbody may seek relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior to this version of this Agreement.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent CT Corporation System, 818 West Seventh Street, Suite 930, Los Angeles, CA 90017. The CT Corp office in your jurisdiction may be located through the Secretary of State’s website. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Mindbody will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Mindbody will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America. You and Mindbody further agree to submit to the personal jurisdiction of any federal or state court in the county of San Luis Obispo, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another 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 shall apply California law consistent with the Federal Arbitration Act and shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement, and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Mindbody. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND MINDBODY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Mindbody are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 27(a), above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, 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 Actions 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 OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. 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 State or Federal Courts located in the State of California. All other claims shall be arbitrated.
f. 30-Day Right to Opt Out. You have the right to opt out of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Mindbody, Attention: MB App Arbitration Opt Out, 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401 or at [email protected] within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Mindbody username (if any), the email address you used to set up your Mindbody App account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
g. Severability. Except as provided in subsection 27(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
h. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Mindbody.
i. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Mindbody makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: Mindbody, Attention: MB App Arbitration Opt Out, 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401 or at [email protected]. Modifications to this Arbitration Agreement will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Modification" is not enforceable or valid, then this subsection shall be severed from the Arbitration Agreement and the court or arbitrator shall apply the first Arbitration Agreement in existence after you began using the Mindbody App.
28. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Mindbody agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Luis Obispo County, California.
29. Governing Law.
This Agreement any action related thereto will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
30. Limitation on Time to Initiate a Dispute.
Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one (1) year after the cause of action accrues. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
31. Right to Amend.
We may, in our sole discretion, change or add to the terms of this Agreement at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the Mindbody App. We will also update the “Last Updated” date at the top of this Agreement. Any use of the Mindbody App after our publication of any such changes shall constitute your acceptance of this Agreement as modified. If you do not agree to any changes, you must stop using the Mindbody App, and you can terminate your Mindbody App Account by emailing [email protected]. It is your obligation to ensure that you read, understand and agree to the latest version of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred, delegated or assigned by you, but may be assigned, transferred or delegated by Mindbody without restriction. This Agreement is binding on the parties and their successors and permitted assigns.
33. Third-Party Services and Links.
Through the Mindbody App, you may be offered and given access to services, products and promotions provided by third parties and not by Mindbody (“Third Party Services”). If you decide to access or use these Third Party Services you will be responsible for reviewing and understanding the terms and conditions associated with these services. You agree that Mindbody is not responsible for the performance of these services or the acts or omissions of the entities that provide them. The Mindbody App may contain links to third-party websites as a convenience to you. The inclusion of any website link does imply an approval, endorsement, or recommendation by Mindbody. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement.
34. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to the Mindbody App, please contact us at [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
35. Electronic Communications.
The communications between you and Mindbody use electronic means, whether you visit the Mindbody App or send Mindbody e-mails, or whether Mindbody posts notices on the Mindbody App or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Mindbody in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mindbody provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Mindbody and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Mindbody App, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Mindbody App. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Mindbody or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Mindbody App.
37. Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
38. General Provisions.
Except as expressly provided in this Agreement, this Agreement a complete statement of the agreement between you and Mindbody, and describes the entire liability of Mindbody and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Mindbody App. Mindbody shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. In the event of a conflict between this Agreement and any other Mindbody agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. 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 Mindbody. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Mindbody may have under trade secret, copyright, patent, or other laws. Mindbody’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 8, 10-15, 18, 21-33, 35, 36, 38 and 39.