These Terms of Use (hereinafter, these “Terms”) are a legal contract between Modo Yoga International, Inc., (hereinafter, “MYI”, “us” or “we”) and you, and set forth the terms and conditions which govern your use of any of MYI’s websites (hereinafter, the “Sites”), the text, data, information, software, graphics, videos, photographs and other materials (collectively referred to as “Materials”) available on the Sites, the services offered on or through the Sites (hereinafter, the “Services”), and any software that we provide for installation and use on a mobile device that permits you to access and use the Services (each a “Mobile Application” and, collectively with the Sites and Services, the “MYI Platform”).
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING AND USING THE MYI PLATFORM. BY USING ANY PART OF THE MYI PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE MYI PLATFORM OR ANY MATERIALS AND MUST IMMEDIATELY CEASE SUCH USE. MYI MAY MODIFY THESE TERMS AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED TERMS ON THE SITES AND, IF YOU HAVE REGISTERED FOR AN ACCOUNT WITH MYI (AS DESCRIBED BELOW), NOTIFYING YOU OF SUCH CHANGES VIA EMAIL. IF YOU DO NOT AGREE TO CHANGES IN THESE TERMS, THEN CANCEL YOUR ACCOUNT BY EMAILING USE AT INFO@MODOYOGA.COM WITHIN 30 DAYS OF YOUR RECEIPT OF OUR NOTICE OF CHANGES AND CEASE ALL USE OF THE MYI PLATFORM. YOUR USE OF THE MYI PLATFORM FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. IF WE REQUEST, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THESE TERMS.
THE INFORMATION, CONTENT AND OTHER MATERIALS POSTED ON OR ACCESSIBLE THROUGH THE MYI PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. MYI DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE MYI PLATFORM. RELIANCE ON ANY INFORMATION PROVIDED BY MYI, ITS AFFILIATED COMPANIES, CONTRIBUTORS TO, OR OTHER USERS OF THE MYI PLATFORM IS SOLELY AT YOUR OWN RISK.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTHCARE PRACTITIONER BEFORE STARTING ANY EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, ARE PREGNANT, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE MYI PLATFORM.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH MYI. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Using the MYI Platform.
By using the MYI Platform, 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 MYI Platform with the consent of your parent or legal guardian who has agreed to these Terms. If you are a parent or legal guardian agreeing to these Terms for the benefit of a Minor, you are fully responsible for reviewing these Terms with the Minor, ensuring the Minor understands these Terms, and for the Minor’s use of the MYI Platform, including all legal liability he or she may incur. If you are not at least 13 years old, you may not use the MYI Platform.
In these Terms we are granting you a limited, revocable, personal, non-exclusive and non-transferable license to access the Sites, use the Services, and display the Materials; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in the Sites, Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Sites, the Services or any of the Materials in any manner. If you make copies of any of the Materials then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on the Sites. You have no title or interest in or to the Sites, Services or any Materials.
Unfortunately, if you breach any of the terms of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
Mobile Applications.
We distribute Mobile Applications that permit users to sign up for online classes, view information about our franchisees’ facilities, and access and use certain of the Services and Materials via mobile devices. To use a Mobile Application, you must have a mobile device that is compatible with it. We do not warrant that any of the Mobile Applications will be compatible with your mobile device. We hereby grant you a limited, non-exclusive, non-transferable, revocable license to download and use object code copies of the Mobile Application for one registered account on mobile devices owned or leased by you, solely for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that we may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Applications.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
You acknowledge that these Terms are between you and MYI only, and not with Apple, Inc. (“Apple”).
Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.
MYI, and not Apple, is solely responsible for the iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
You agree that MYI, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and you further agree all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
You agree that MYI, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as it relates to your license of the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as it relates to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Android-powered mobile device (an “Android App”):
You acknowledge that these Terms are between you and MYI only, and not with Google, Inc. (“Google”).
Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. MYI, and not Google, is solely responsible for the Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the Android App.
Geo-Location Terms.
The Mobile Applications include and make use of certain functionality and services provided by third parties that allow MYI to provide maps, geocoding, places and other content. If the Mobile Application you install includes geolocation services from Google, Inc. (“Google”), use of such geolocation Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (https://www.google.com/intl/en_us/help/terms_maps.html) and by using such services, you are agreeing to be bound by Google’s Terms of Use.
Accounts, Passwords and Security.
You need not register with MYI to simply visit and view the Sites. However, you may be required to create an account with MYI before you are permitted to access and use certain Services or functionality on the Sites or Mobile Applications.
If you wish to create an account, you must submit your name; email address; preferred password and other information requested on the account registration page. Once you have submitted your account registration information, we will have the right to approve or reject your account, in our sole discretion. If approved, you will be permitted to log into your account with the password that you selected during account registration. We may also provide you with the ability to register for an account using your existing account and log-in credentials on Third-Party Sites (as defined below) such as Facebook.
You are responsible for maintaining the confidentiality of your account password and/or any Third-Party Site password that you use to login to the MYI Platform (collectively, “Passwords”), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords or otherwise be in breach of these Terms and Conditions. You agree to notify MYI if any of your Passwords is lost, stolen, if you are aware of any unauthorized use of your Passwords or if you know of any other breach of security in relation to the MYI Platform.
All the information that you provide when registering for an account and otherwise through the MYI Platform must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
Prohibited Activities.
To be clear, we authorize your use of the MYI Platform only for personal use (“Permitted Purpose”). Any other use of the MYI Platform beyond the Permitted Purpose is prohibited and, therefore, constitutes unauthorized use of the MYI Platform. This is because as between you and MYI, all rights in the MYI Platform and Materials remain our property.
Unauthorized use of the MYI Platform may result in violation of various Canadian and international copyright laws. If we determine that you do act in bad faith in violation of these Terms, or if we determine that your actions fall outside of reasonable community standards, we may, in our sole discretion, terminate your right to use the MYI Platform. By way of example, you specifically agree that you shall not:
use the MYI Platform or any Materials for any public or commercial purpose, which includes use of the Materials on another site or through a networked computer environment;
copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Materials, information, software, products or services obtained through the MYI Platform;
access the MYI Platform by any means other than through the standard industry-accepted or MYI-provided interfaces;
transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another’s right of privacy or publicity;
impersonate any person or entity, including without limitation, an MYI official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
post or transmit any material that contains a virus, worm, spyware, adware, or other potentially damaging program or file or corrupted data;
delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
use of any MYI Platform’s communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
violate any applicable local, municipal, provincial, state, federal or international law;
upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any third party;
delete or revise any material posted by any other person or entity;
manipulate or otherwise display the MYI Platform or any Materials by using framing or similar navigational technology;
register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any third party for any Site, Services or Materials if you are not expressly authorized by such third party to do so; or
use the MYI Platform for any purpose that is unlawful or prohibited by these Terms. You may not use the MYI Platform in any manner that could damage, disable, overburden or impair MYI’s servers or networks, or interfere with any other user’s use and enjoyment of the MYI Platform. Furthermore, you may not attempt to gain unauthorized access to any of the MYI Platform, accounts, computer systems or networks connected to MYI through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the MYI Platform.
Forums and Comments.
MYI may allow posting of comments and provide chat functionality on the MYI Platform. Information and content posted within these public forums may be provided by MYI staff, MYI’s outside contributors, or by users not connected with MYI, some of whom may employ anonymous user names. MYI expressly disclaims all responsibility and endorsement, and makes no representation as to the validity, for and of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these posted comments. The opinions expressed in these comments are solely the opinions of the participants, and do not reflect the opinions of MYI or any of its subsidiaries or affiliates.
Submissions.
Certain functionality of the MYI Platform may permit you to submit feedback, information, data, text, images, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that each such User Submission is considered both non-confidential and non-proprietary. We do not guarantee that you will be able to edit or delete any User Submission you have submitted.
By submitting any User Submission, you are promising us that:
You own all rights in your User Submission (including, without limitation, all rights to the reproduction and display of your User Submission) or, alternatively, you have acquired all necessary rights in your User Submission to enable you to grant to us the rights in your User Submission as described in these Terms;
You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submission;
Your User Submission does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own or otherwise have the right to provide);
Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submission (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); and
display advertisements in connection with your User Submission and to use your User Submission for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of any MYI Platform through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the MYI Platform and may remove at any time or refuse any User Submissions for any reason. You understand that when using the MYI Platform you will be exposed to User Submissions from a variety of sources and that we are not responsible for the accuracy, usefulness, reliability, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, defamatory, indecent, or objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
Links to Third-Party Sites.
We occasionally provide links from the MYI Platform to third-party websites (“Third-Party Sites”), including, but not limited to, links to third parties who host our online classes, manage sales of MYI-branded merchandise and class bookings for MYI and our franchisees, and accept payment for our teacher trainees’ application fees, deposits and tuition. If you use these links, you will leave the MYI Platform. MYI provides these links to you as a convenience, and we do not verify, make any representations, or take responsibility for these Third-Party Sites, including the truthfulness, accuracy, quality, or completeness of the content, services, links displayed, or other activities conducted on or through the Third-Party Sites. Therefore, unless specifically stated on the MYI Platform, we do not endorse or make any representations about Third-Party Sites or any information, material, or results that may be obtained through the use of Third-Party Sites. In addition, certain areas of the MYI Platform may allow you to interact or conduct transactions with Third-Party Sites. If so, you may be able to configure the privacy settings of your account on a Third-Party Site to permit your activities to be shared with your contacts on that Third-Party Site. If you decide to access any of the Third-Party Sites linked on the MYI Platform, you do so entirely at your own risk, and you must follow, and will be subject to, the privacy policies and the terms and conditions for those Third-Party Sites.
Similarly, the MYI Platform includes web pages from which you may obtain information about Modo Yoga studios operated by independent franchisees (“Franchisee Sites”). Unless specifically stated on the MYI Platform, we do not endorse or make any representations about any services that may be offered at franchisee-owned studios.
YOU AGREE THAT MYI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES, OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITE, FOR ANY THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED TO ANY GOODS, SERVICES, INFORMATION, RESOURCES, OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITE, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
Orders and Payments.
You agree to pay any fees applicable to your use of the MYI Platform, including but not limited to fees and charges applicable to your purchases. We may suspend or terminate your account and/or access to the MYI Platform and/or Materials if your offered payment method (e.g., credit card) cannot be processed. By providing a payment method, you expressly authorize us and/or our third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto, all of which depend on the services you utilize and the products you purchase. You agree that we may charge any unpaid amounts to your provided payment method and/or send you a bill for such unpaid fees.
Memberships.
Certain Services and Materials available for purchase on or through the MYI Platform are purchased on a subscription basis (each a “Membership”). Each Membership and the rights and privileges provided to members are personal and non-transferable. All sales and payments of Membership fees will be in the currency indicated when you subscribe.
The fee that you will be charged for your Membership will be the relevant price posted on the MYI Platform on the date that you subscribe. We reserve the right to change our standard pricing for Memberships at any time. Such changes will affect your Membership following the end of your Membership period, provided that we give you at least 30 days email notice of any price change. If you do not agree to such price change, then either (i) access your Account Settings and cancel your Membership through the “Manage Subscription” link before the start of any such price change or (ii) email us at info@modoyoga.com to cancel. Free-trials and promotion-priced subscriptions will convert to full price subscriptions at the end of the free-trial or promotion period, as applicable. To avoid any charges after the end of a free trial, you may cancel your Membership using one of the two cancellation methods mentioned in this paragraph before the end of such free trial.
You may pay Membership fees only with credit card payments. By providing us or our third party payment processor(s) with a payment method, you expressly (A) agree to our third party payment processor’s terms and conditions and (B) authorize us and/or our third party payment processor(s) to charge the applicable Membership fees on said payment method, as well as all taxes and other charges related thereto. Your credit card will be charged for your first Membership fee on the date that your registration is processed. Once your credit card is charged the first Membership fee, you will receive a confirmation e-mail notifying you of your ability to access those member-only portions of the MYI Platform.
IMPORTANT NOTICE – AUTOMATIC RENEWAL: IF YOU SIGN UP FOR A MEMBERSHIP THAT INCLUDES A FREE-TRIAL OR PROMOTIONAL PRICE PERIOD, UNLESS YOU HAVE CANCELLED YOUR MEMBERSHIP PRIOR TO THE EXPIRATION OF THE FREE-TRIAL PERIOD OR PROMOTIONAL PERIOD WE WILL AUTOMATICALLY CHARGE YOU FOR THE FIRST MONTHLY MEMBERSHIP FEE UPON THE EXPIRATION OF THE FREE-TRIAL OR PROMOTIONAL PERIOD AND EACH SUBSEQUENT MONTH THEREAFTER. THE PRICING FOR SUCH MEMBERSHIP WILL BE AT THE PRICE YOU AGREED TO AT THE START OF THE FREE TRIAL OR PROMOTIONAL PERIOD.
BEGINNING WITH THE FIRST MONTH FOLLOWING THE END OF THE MEMBERSHIP PERIOD TO WHICH YOU INITIALLY SUBSCRIBE, WE WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP AND, AS AUTHORIZED BY YOU DURING THE REGISTRATION PROCESS, WE WILL CHARGE YOUR CREDIT CARD WITH THE APPLICABLE MONTHLY MEMBERSHIP FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR PAYMENT (UNLESS YOU CANCEL PRIOR TO THE LAST DAY OF YOUR THEN-CURRENT MEMBERSHIP PERIOD). EACH RENEWAL PERIOD WILL BE FOR THE SAME LENGTH AS YOUR IMMEDIATELY PRECEEDING MEMBERSHIP PERIOD.
YOU MAY CANCEL YOUR MEMBERSHIP AT ANY TIME BY LOGGING INTO YOUR ACCOUNT AND CANCELLING YOUR MEMBERSHIP OR BY CONTACTING US AT: info@modoyoga.com
WE REQUIRE A REASONABLE AMOUNT OF TIME TO PROCESS YOUR CANCELLATION REQUEST. IF YOU CANCEL YOUR MEMBERSHIP AFTER THE FIRST DAY OF YOUR RENEWAL TERM, YOU WILL NOT RECEIVE A REFUND, BUT YOU WILL CONTINUE TO ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MONTH FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THAT MONTH.
WE RESERVE THE RIGHT TO MODIFY OUR PRICING AT ANY TIME (BUT NOT THE PRICE IN EFFECT FOR YOUR THEN-CURRENT MEMBERSHIP), UPON ADVANCE NOTICE TO YOU. IF YOU HAVE NOT CANCELLED YOUR SUBSCRIPTION WITHIN THE SPECIFIED TIME AFTER RECEIVING NOTICE OF A PRICE CHANGE, YOUR MEMBERSHIP WILL AUTO-RENEW AT THE PRICE INDICATED IN YOUR NOTICE.
Products.
You may be permitted to purchase MYI-branded products through the MYI Platform storefront (“Products”). To do so, you must supply certain information relevant to your transaction, including, without limitation, your credit card number, the expiration date of your credit card, the name on your credit card, and/or your billing address. Once you have submitted your payment information, we or our third party fulfillment partner will authorize the payment and send you a confirmation email.
All descriptions, images, features, specifications and prices of the Products are subject to change at any time without notice. The inclusion of any Product on the MYI Platform does not imply or warrant that such Product will be available. We reserve the right, with or without prior notice, to do any one or more of the following for any reason: (i) limit the available quantity of or discontinue any Product; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar you from making or completing any or all transactions; and (iv) refuse to provide you with any Product.
Products will be shipped in accordance with the shipping method you select when placing the order. All orders will be processed and fulfilled by our third party fulfillment partner. You acknowledge that any delivery dates we may provide are non-binding estimates only and that you have no claim against MYI for delays or early deliveries. We reserve the right to make deliveries in installments.
You should inspect your package to ensure the contents arrive undamaged. If you are not home when a delivery arrives, the delivery person may leave the package for you at your door.
MYI is not responsible for:
Items delivered to incorrect addresses supplied by you or the recipient of the product.Delays resulting from inclement weather, natural disaster or other unforeseen circumstances.
Delivery issues arising from the recipient not being present at the time of delivery at the address supplied by you or recipient.
Decreased product quality due to an incorrect delivery address supplied by you or the recipient, or a re-route requested by you or the recipient.
Product quality problems caused by improper handling by you or the recipient.
All claims for damaged or missing shipments must be made through our third party fulfillment partner. Claims may be made by email to info@modoyoga.com.
Electronic Communications.
By using the MYI Platform and/or the Materials, you consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the MYI Platform and Materials. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Privacy Policy.
We respect the information that you provide to us, and want to be sure you fully understand exactly how we use that information. Please review our privacy policy (the “Privacy Policy”), which further explains how MYI collects and uses the information that we obtain through users’ use of the MYI Platform.
Proprietary Rights.
The trademarks, service marks, and logos of MYI (“Our Trademarks”) used and displayed on various parts of the MYI Platform are registered and unregistered trademarks or service marks of MYI. Other company, product, and service names located on the MYI Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks” and, collectively with Our Trademarks, the “Trademarks”). Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Our Trademarks inures to our benefit.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on the MYI Platform, are our sole property, or the property of our suppliers and licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
Disclaimer of Warranties.
Your use of the MYI Platform is at your own risk. The Materials may include inaccuracies or typographical or other errors. MYI does not warrant the accuracy or timeliness of the Materials contained on the MYI Platform and we have no liability for any errors or omissions in the Materials, whether provided by MYI, our licensors or suppliers, or other users.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYI, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE SERVICES, THE MOBILE APPLICATIONS, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR CONTENT CONTAINED OR PRESENTED ON THE MYI PLATFORM, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MYI PLATFORM, MATERIALS AND ANY OTHER INFORMATION OR CONTENT CONTAINED OR PRESENTED ON OR THROUGH THE MYI PLATFORM, IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. MYI DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, WORMS, SPYWARE, ADWARE, MALWARE OR OTHER POTENTIALLY DAMAGING PROGRAMS OR FILES THAT MAY BE INSTALLED ON YOUR COMPUTER.
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY OR SUITABILITY OF ANY PRODUCTS, SERVICES OR BUSINESSES THAT MAY BE DISPLAYED ON OR THROUGH THE MYI PLATFORM, OR AS TO THE CONDUCT OF USERS OF THE MYI PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE MYI PLATFORM AND WITH OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE MYI PLATFORM, PARTICULARLY IF YOU DECIDE MEET OR CONDUCT BUSINESS OFFLINE OR IN PERSON.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MYI NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE MYI PLATFORM OR MATERIALS; (ii) ANY CONTENT CONTAINED ON OR ACCESSED THROUGH THE MYI PLATFORM; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE MYI PLATFORM; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE MYI PLATFORM; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE MYI PLATFORM OR IN THE MATERIALS; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT OR MATERIALS ON OR ACCESSIBLE THROUGH THE MYI PLATFORM, OR (vii) ANY OTHER MATTER RELATING TO THE MYI PLATFORM. IN NO EVENT SHALL MYI’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY THE MYI PLATFORM AND MATERIALS.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE MYI PLATFORM, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE MYI PLATFORM. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE MYI PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE MYI PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE MYI PLATFORM, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON.
Professional Advice Disclaimer.
THE MYI PLATFORM AND MATERIALS OFFER HEALTH, FITNESS AND NUTRITIONAL INFORMATION AND ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE MYI PLATFORM OR IN THE MATERIALS. THE USE OF ANY INFORMATION FOUND ON THE MYI PLATFORM OR IN THE MATERIALS IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON OR AVAILABLE VIA THE MYI PLATFORM IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
THE MYI PLATFORM AND MATERIALS ARE CONTINUALLY UNDER DEVELOPMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYI MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO THEIR ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS ON THE MYI PLATFORM AND IN THE MATERIALS. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED OR OBTAINED ON OR THROUGH YOUR USE OF THE MYI PLATFORM WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS.
Fitness Class Participation Waiver
You acknowledge that participation in fitness classes involves strength, flexibility, aerobic, cardio and other exercises, including the use of equipment, all of which can be potentially hazardous activities. You accept full responsibility over the location where you engage in fitness classes accessible via the MYI Platform (“Fitness Classes”), and you acknowledge that (i) MYI has no control over the location that you choose and (ii) the location of participation in fitness activities involves additional risks, including, but not limited to, those caused by terrain, facilities, temperature, weather, environment, vehicular traffic, lack of hydration and actions of other people.
By choosing to engage in Fitness Classes, you affirm that either (i) all of the following statements are true: (A) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (B) you have never felt chest pain when engaging in physical activity; (C) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (D) you have never lost your balance because of dizziness and you have never lost consciousness; (E) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (F) your physician is not currently prescribing drugs for your blood pressure or heart condition; (G) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (H) you do not know of any other reason you should not exercise; or (ii) your physician has specifically approved of your participation in the Fitness Classes. If applicable, you further affirm that either (i) you are not pregnant, breastfeeding or lactating; or (ii) your physician has specifically approved your participation in the Fitness Classes. We reserve the right to bar you from participating in Fitness Classes if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
By participating in our Fitness Classes, you: (i) acknowledge and agree that you are voluntarily participating such Fitness Classes; (ii) hereby assume and accept any and all risks of injury, physical harm, or death; (iii) acknowledge and represent that you are mentally and physically sound and do not suffer from any illness, impairment, disease or other condition that would prevent you from participating in the Fitness Classes, performing any exercises, or using any equipment; and (iv) knowingly and voluntarily, on behalf of yourself and your heirs and assigns, forever waive, release, discharge and hold harmless MYI and its subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, representatives, and each of their respective successors and assigns, individually and collectively, from any and all liability, damages, losses, suits, demands, causes of action (including, without limitation, negligence) or other claims of any nature whatsoever, including, without limitation, any losses for property damage, personal injury, or death, arising out of or relating in any way to your participation in the Fitness Classes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY 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 OR RELEASED PARTY.”
Indemnification.
You agree to indemnify, defend, and hold MYI and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including reasonable attorneys’ fees and disbursements) which arise directly or indirectly out of or from (i) your breach of these Terms, (ii) any allegation that any User Submissions or other materials that you submit to MYI or post on any forums (e.g., support groups, chat rooms) infringe or otherwise violate the copyright, trade secret, trademark or other intellectual property rights of a third party, and (iii) your access or use of the MYI Platform. This Section shall survive in the event these Terms are terminated for any reason.
Jurisdictional Issues.
MYI controls and operates the MYI Platform from Canada and makes no representation or warranty that the MYI Platform or Materials are appropriate or available for use in locations outside Canada. Those who choose to access the MYI Platform and/or Materials from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. MYI reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the MYI Platform and/or Materials to any person, geographic area, or jurisdiction we so desire, and/or to limit the quantities of any Services or products that we provide.
Feedback.
To the maximum extent permitted by applicable law, any submissions by you to us (e.g., User Submissions, comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign us all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable and/or subject to copyright, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Termination.
These Terms shall remain effective until terminated in accordance with their terms and conditions. You agree that MYI, in its sole discretion, may terminate your account, or use of the MYI Platform or Materials (in whole or in part), and remove and discard any content from the MYI Platform, at any time and for any reason. You agree that any actions taken under this Section may be effective without prior notice to you. In the event that MYI exercises this right to terminate for convenience rather than as a result of your violation of these Terms, MYI will refund on a pro rata basis any unused portion of your subscription price for the time period of any unused subscription.
Dispute Resolution and Arbitration; Class Action Waiver.
Please read the following Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) carefully. It affects your rights.
Please read this Provision carefully. It provides that all Disputes (as defined below) between you and MYI arising out of these Terms shall be resolved by binding arbitration. Arbitration is a form of private dispute resolution and replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).
For purposes of this Provision, “MYI” means Modo Yoga International, Inc. and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and MYI regarding, arising out of or relating to any aspect of your relationship with MYI, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as MYI’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND MYI EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give MYI an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Modo Yoga International, Inc., 980 Alder St, Campbell River, BC V9W 2P9. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If MYI does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or MYI may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Modo Yoga International, Inc., 980 Alder St, Campbell River, BC V9W 2P9. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with MYI through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with MYI. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or MYI may initiate arbitration proceedings. At MYI’s discretion, either the American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced or maintained or heard as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the MYI Platform and these Terms concern interstate commerce, the British Columbia Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or MYI may initiate arbitration in either Vancouver, British Columbia or the judicial district that includes your billing address. However, if MYI initiates the arbitration in Vancouver, you shall have the right to have the arbitration transferred to the AAA or JAMS office within the judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – MYI will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with MYI as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and MYI specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Except to the extent that representative claims under California’s Private Attorney General Act (“PAGA”) are excluded from these Terms (if PAGA is applicable), neither you, nor any other user of the MYI Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge Or Jury In Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms you and MYI are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and MYI might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service, subscription or agreement with MYI or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if MYI makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require MYI to adhere to the present language in this Provision as of the day you entered into these Terms if a dispute between us arises.
General Information And Choice Of Law And Venue.
As to all Disputes, whether in arbitration or in court, the laws of British Columbia and applicable Canadian federal law, without regard to their choice of law or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations Convention on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms, the MYI Platform, or the Materials will be heard in the federal or state courts located in Vancouver in the Province of British Columbia. If any terms of these Terms are found to be inconsistent with applicable law, then such terms shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Our failure to enforce any provisions of these Terms is not a waiver of such provision. The section titles in these Terms are for convenience purposes only and have no legal or contractual effect. These Terms are not assignable, transferable or sublicensable by you except with our prior written consent. However, we may assign these Terms to any third party whom we choose without your consent. No waiver by MYI of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default. These Terms and all other terms and policies incorporated herein by reference are the entire agreement between you and MYI and supersede all prior or contemporaneous oral or written negotiations, discussions or agreements between you and MYI about the MYI Platform and/or Materials. The Arbitration Agreement and Class Action Waiver, and the proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The MYI Platform is provided by Modo Yoga International, Inc., 980 Alder St, Campbell River, BC V9W 2P9. If you have a question or complaint regarding the MYI Platform, please contact Customer Service at info@modoyoga.com. You may also contact us by writing Modo Yoga International, Inc., 980 Alder St, Campbell River, BC V9W 2P9, Attn.: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Boulevard, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
Contact Us.
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at Modo Yoga International, Inc., 980 Alder St, Campbell River, BC V9W 2P9, Attn.: Customer Service, or by email at info@modoyoga.com.