Terms and Conditions
In these Terms, Content means all information, graphics, HTML, text, software and materials on the Site. In these Terms, a reference to use of the Website also means use of the Content. If You do not agree to these Terms, then You may not use the Website. We may periodically update these Terms and Your use of the Website after such changes means that You accept those changes. Please review the Terms periodically or each time You use the Website.
The following definitions apply to these Terms:
App means the YBell Fitness application operating on a mobile device through which You use the Free Programming.
Confidential Information means all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to Us or to You, Our sub-licensees, agents and employees, Your or Our affairs or businesses, sales, marketing or promotional information, these Terms including any such information in Our or Your power, possession or control concerning or belonging to any third party but does not include information that: (a) is, or becomes part of, the public domain otherwise than by breach of these Terms by You or Us; (b) is lawfully obtained by either party from another person without any restriction as to use and disclosure; or (c) was in the receiving party’s possession prior to disclosure to it by You or Us.
Free Programming means the training modules for the YBell developed by YBell Fitness and any updates, upgrades, modifications and documentation that We provide to You for the Free Programming.
Free Term means an introductory 1-month period of Free Programming that We may provide You for no charge.
Our Intellectual Property Rights means copyright, and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields under the laws of any jurisdiction throughout the world and includes data and usage statistics that We collect from Users of the Free Programming but excludes Your Confidential Information.
Supported Device means a computer or mobile device that meets the specifications described on the Website or that runs the App and that We support for operating the Free Programming.
User means a single person identified by a unique email address and such address may not be shared with other people.
3. PERMITTED USE AND CONTENT
You are granted a non-exclusive, non-transferable and revocable limited license to access and make personal use of the Website and its contents provided You are: (a) capable of forming binding contracts; (b) not breaking any laws by access or using the Website (including any laws in Your own jurisdiction) and use the Website for lawful purposes only. You are permitted to use the information on the Website for Your business. However, You may not use the Website or its content for a commercial purpose (such as by reproducing or selling Our content), or in a way which tampers with the Website, affects its security, imposes an unreasonably burden on Our infrastructure, or makes use of any bot or automated program or script.
All content on the Website is for informational purposes only, and is to be used or relied on at Your own risk. We make no warranty or representations as to the accuracy of the Content. You agree and acknowledge that there may be technical or administrative errors in the Content. We reserve the right to correct any errors in the Content and on the Site without any notice to You.
4. FREE PROGRAMMING AND LICENSE
These terms govern Our provision of and Your use of the Free Programming that We may offer You. If we offer you Free Programming, then it will be for the Free Term. We We grant You a non-exclusive, non-transferable, licence to use the Free Programming as a User on a Supported Device for the Free Term. This license does not allow You to use the Free Programming to operate a service bureau, SaaS, cloud-based service, hosting service or other similar service or to make available the Free Programming to anyone other than You. Neither these Terms nor the Free Programming may be sold, leased, assigned, sublicensed or transferred by You, in whole or in part.
5. SCOPE OF USE
You may only use the Free Programming for Your personal use and You may not modify, alter or adapt the Free Programming or merge all or part of it with any other Free Programming without Our prior written consent. You may not reverse engineer, reverse compile or decompile the software that operates the Free Programming or try to access or discover its source code or any trade secret related to the Free Programming. You may not remove or obscure any notice relating to Our Intellectual Property Rights. You must immediately notify us if You become aware of any unauthorised use of the Free Programming. You acknowledge that We may incorporate technical features into the Free Programming to enforce these Terms.
6. CONFIDENTIAL INFORMATION
We and You agree not to disclose, duplicate or otherwise reproduce, directly or indirectly, each other’s Confidential Information in whole or in part. We and You further agree to use each other’s Confidential Information solely for the purposes of exercising each other’s rights stated under these Terms or other rights that are clearly contemplated by these Terms.
While YBell Fitness strives to provide correct information, all information and recommendations related to any third party products or services or any other articles or editorial content published on the Website, in Our newsletters or any further information provided to You by Our representatives, is comprised solely of the opinions of YBell Fitness, which may be inaccurate, incomplete or no longer current. The YBell Fitness products We provide information about on the Website may not be the right choice for You given Your individual circumstances. The Content provided on the Website does not constitute any advice as to the suitability of any product or service for Your particular requirements. It is up to You to independently investigate any products or options presented (including their functionality and specifications), to verify any information presented from other sources and consider Your own individual needs before choosing to license any product or solution, or acting on any recommendation or information published on the Website.
To the extent permitted by law, YBell Fitness gives no warranty that You will have continuous access to the Website or that the Website will be error free, secure, or free from viruses or harmful components and excludes any such warranties. Your use of the Website is at Your own risk.
8. FREE PROGRAMMING DISCLAIMER
The purpose of this further disclaimer (Disclaimer) is to make you conscious of the potential risks connected with activity in any exercise, physical fitness or training program. You should make an informed decision as to whether You should participate in these types of activities. Injuries of all types can occur when participating in exercise, physical fitness and training programs. We strongly encourage You to obtain a comprehensive physical examination by a doctor, GP or licensed physician before undertaking any exercise or training demonstrated in the Free Programming on the Website or the App and You fully assume the risk of any resulting injury. Such injuries include but are not limited to: (a) bruising, cuts and general soreness; (b) muscle and tendon injuries; (c) ligament and skeletal injuries; (d) fractured or broken bones; (e) concussions and (f) heart attack. WE DISCLAIM ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT OR REVENUE AND WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS, INJURY OR DAMAGE SUFFERED BY YOU AS A RESULT OF THE USE OR MISUSE OF ANY INFORMATION, VIDEOS OR OTHER TRAINING MATERIAL PROVIDED AS PART OF THE FREE PROGRAMMING ON THE WEBSITE OR THE APP. In consideration of participating in the Free Programming, You hereby agree to indemnify and hold harmless Us, Our officers, directors, shareholders, members, employees, and agents, and their respective successors and assigns, against any loss, liability, damage, cause of action, cost, or expense of any nature whatsoever, including without limitation legal costs. The content, information, videos, training instructions and other materials offered and made available as part of the Free Programming offered on the Website or App are for informational purposes only.
9. TRADE MARK
The trade marks, names, logos and service marks (Trade Marks) displayed on the Website are registered and unregistered Trade Marks of YBell Fitness. Nothing contained on the Website gives You a license or right to use any Trade Mark without the prior written permission of YBell Fitness.
10. EXTERNAL LINKS
11. PUBLIC FORUMS AND USER SUBMISSION
YBell Fitness is not responsible for any material submitted to the public areas by You (which include bulletin boards, hosted pages, chat rooms, or any other public area found on the Website. Any material (whether submitted by You or any other user) is not endorsed, reviewed or approved by YBell Fitness. YBell Fitness reserves the right to remove any material submitted or posted by You in the public areas, without notice to You, if it becomes aware and determines, in its sole and absolute discretion that You are or there is the likelihood that You may, including but not limited to: (a) defame, abuse, harass, stalk, threaten or otherwise violate the rights of other users or any third parties; (b) publish, post, distribute or disseminate any defamatory, obscene, indecent or unlawful material or information; (c) post or upload files that contain viruses, corrupted files or any other similar software or programmes that may damage the operation of YBell Fitness‘s or a third party’s computer system or network; (d) violate any copyright, trade mark, other applicable Australia or International laws or intellectual property rights of YBell Fitness or any other third party; and (e) submit contents containing marketing or promotional material which is intended to solicit business.
12. SPECIFIC USE
You further agree not to use the Website to send or post any message or material that is unlawful, harassing, defamatory, abusive, indecent, threatening, harmful, vulgar, obscene, sexually orientated, racially offensive, profane, pornographic or violates any applicable law and You hereby indemnify YBell Fitness against any loss, liability, damage or expense of whatever nature which YBell Fitness or any third party may suffer which is caused by or attributable to, whether directly or indirectly, Your use of the Website to send or post any such message or material or Your use of the Website in breach of these Terms.
YBell Fitness makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding the Website, the information contained on the Website, Your or Your company’s personal information or material and information transmitted over Our system.
14. DISCLAIMER OF LIABILITY
YBELL FITNESS WILL NOT BE RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY FOR ANY LOSS, LIABILITY, DAMAGE (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND INCLUDING DAMAGES FOR LOSS OF PROFIT OR REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF CHANCE, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF DATA AND LOSS OF REPUTATION), PERSONAL INJURY OR EXPENSE OF ANY NATURE WHATSOEVER WHICH MAY BE SUFFERED BY YOU OR ANY THIRD PARTY (INCLUDING YOUR COMPANY), AS A RESULT OF OR WHICH MAY BE ATTRIBUTABLE, DIRECTLY OR INDIRECTLY, TO YOUR ACCESS AND USE OF THE WEBSITE, ANY INFORMATION CONTAINED ON THE WEBSITE, YOUR OR YOUR COMPANY’S PERSONAL INFORMATION OR MATERIAL AND INFORMATION TRANSMITTED OVER OUR SYSTEM. IN PARTICULAR, NEITHER YBELL FITNESS NOR ANY THIRD PARTY OR DATA OR CONTENT PROVIDER WILL BE LIABLE IN ANY WAY TO YOU OR TO ANY OTHER PERSON, FIRM OR CORPORATION WHATSOEVER FOR ANY LOSS, LIABILITY, DAMAGE (WHETHER DIRECT OR CONSEQUENTIAL), PERSONAL INJURY OR EXPENSE OF ANY NATURE WHATSOEVER ARISING FROM ANY DELAYS, INACCURACIES, ERRORS IN, OR OMISSION OF ANY INFORMATION OR THE TRANSMISSION THEREOF, OR FOR ANY ACTIONS TAKEN IN RELIANCE THEREON OR OCCASIONED THEREBY OR BY REASON OF NON-PERFORMANCE OR INTERRUPTION, OR TERMINATION THEREOF.
15. USE OF THE WEBSITE
YBell Fitness does not make any warranty or representation that information on the Website is appropriate for use in any jurisdiction (other than Australia or the USA). By accessing the Website, You warrant and represent to YBell Fitness that You are legally entitled to do so and to make use of information made available via the Website.
16. MANDATORY MEDIATION AND DISPUTE RESOLUTION
If a dispute arises regarding these Terms or any non-contractual obligations arising out or of in connection with these Terms (Dispute), a party must notify the other party in writing of the Dispute (Dispute Notice). Within 14 days of receipt of a Dispute Notice, the parties must meet in good faith and use their best endeavours to resolve the Dispute. If the Dispute cannot be resolved through good faith discussions, then the parties must refer the Dispute to mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (the Guidelines) and the Guidelines are incorporated by reference into these Terms.
17. OTHER TERMS
We may choose not to strictly enforce these Terms, however this will not preclude us from insisting upon strict compliance with these Terms on other occasions.
Where any part of these Terms is illegal, void or unenforceable for any reason, that part will be first read down so as to cure the problem and if this is not possible, then the offending part will be severed from these Terms without affecting the remainder of these Terms.
Where in these Terms the words ‘such as’ or ‘include’ are used, those words are not intended to be used as words of limitation.
When construing any parts of these Terms, the meaning of any terms will not be construed in a limited fashion by reference to any paragraph or section headings.
These Terms and Your use of the Website are governed by the law applying in New South Wales. The courts having jurisdiction in New South Wales have non-exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms or Your use of the Website (including a dispute relating to any non-contractual obligations arising out of or in connection with these Terms or the Website) and each party irrevocably submits to the non-exclusive jurisdiction of the courts having jurisdiction in New South Wales.
18. YBELL FITNESS MESSAGING TERMS & CONDITIONS
You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from YBell Fitness, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply.
Message frequency will vary. YBell Fitness reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. YBell Fitness also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so.
Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. YBell Fitness, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that YBell Fitness and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from YBell Fitness through any other programs you have joined until you separately unsubscribe from those programs.
Text the keyword HELP to our shortcode to return customer care contact information.
If you are experiencing any problems, please visit https://support.attentivemobile.com/help/ and submit the form with details about your problem or your request for support, or email firstname.lastname@example.org.
This message program is a service of YBell Fitness, located at 8383 Wilshire Boulevard, Suite 625, Beverly Hills, California 90211, USA
- General. In the interest of resolving disputes between you and YBell Fitness in the most expedient and cost effective manner, you and YBell Fitness agree that any dispute arising out of or in any way related to these messaging terms and conditions ("Messaging Terms") or your receipt of text messages from YBell Fitness or its service providers will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Messaging Terms, or your receipt of text messages from YBell Fitness or its service providers whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE MESSAGING TERMS, YOU AND YBell Fitness ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE MESSAGING TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding subsection (a) above, nothing in these Messaging Terms will be deemed to waive, preclude, or otherwise limit the right of you or YBell Fitness to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and YBell Fitness will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Messaging Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting YBell Fitness. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. If you or YBell Fitness intends to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). YBell Fitness address for Notice is: 123 Rd, Town, California 90210, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). You and YBell Fitness will make good faith efforts to resolve the claim directly, but if you and YBell Fitness do not reach an agreement to do so within 30 days after the Notice is received, you or YBell Fitness may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or YBell Fitness must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. (e) Fees. If you commence arbitration in accordance with these Messaging Terms, YBell Fitness will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse YBell Fitness for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. You and YBell Fitness agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or YBell Fitness made within 14 days of the arbitrator's ruling on the merits.
- No Class Actions. YOU AND YBell Fitness AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and YBell Fitness agree otherwise in a signed writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Notwithstanding anything to the contrary in these Messaging Terms, if YBell Fitness makes any future change to this arbitration provision, other than a change to YBell Fitness address for Notice, you may reject the change by sending us written notice within 30 days of the change to YBell Fitness address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and YBell Fitness.
Enforceability. If an arbitrator decides that applicable law precludes enforcement of any of the limitations of subsection (f) above (addressing class, representative and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Messaging Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Messaging Terms shall remain in full force and effect.