TERMS OF SERVICE
PERMISSION TO ACCESS OR USE THE WRKOUT PLATFORM IS GRANTED ON THE TERMS SET OUT IN THESE TERMS OF USE. BY ACCESSING, USING OR REGISTERING AN ACCOUNT ON THE WRKOUT PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE.
These terms and conditions ("Agreement") set forth the general terms and conditions of your use of the wrkout.com website ("Website" or "Service") and any of its related products and services (collectively, "Services"). This Agreement is legally binding between you ("User", "you" or "your") and WRKOUT Media Inc. ("WRKOUT Media Inc.", "we", "us" or "our"). By accessing and using the Website and Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a business or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "User", "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with the terms of this Agreement, you must not accept this Agreement and may not access and use the Website and Services. You acknowledge that this Agreement is a contract between you and WRKOUT Media Inc., even though it is electronic and is not physically signed by you, and it governs your use of the Website and Services.
DISCLAIMER: THE PLATFORM IS INTENDED FOR USE SOLELY IN CANADA AND THE UNITED STATES. ANYONE ACCESSING OR USING THE PLATFORM OUTSIDE OF CANADA AND THE UNITED STATES DOES SO AT THEIR OWN RISK AND, IN DOING SO, IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH THE LOCAL LAWS OF THEIR OWN JURISDICTION. WRKOUT DISCLAIMS ANY AND ALL RESPONSIBILITY WITH RESPECT TO THE ACCESS OR USE OF THE PLATFORM BY ANY USER LOCATED IN A JURISDICTION OUTSIDE OF CANADA AND THE UNITED STATES, NOR DOES IT REPRESENT OR WARRANT THAT THESE TERMS COMPLY WITH THE LAWS OF ANY JURISDICTION OUTSIDE OF CANADA AND THE UNITED STATES.
OUR SERVICES ARE NOT INTENDED FOR ANYONE UNDER THE AGE OF 13. IF YOU ARE 13 TO 17 YEARS OF AGE, YOU MAY ONLY ACCESS AND/OR USE ANY WRKOUT SERVICES WITH THE INVOLVEMENT AND APPROVAL OF YOUR PARENT OR GUARDIAN.
1. WRKOUT PLATFORM
The WRKOUT Platform or “WRKOUT Personal Studio” (hereinafter referred to as the Platform) is a virtual referral service connecting users who want to engage for virtual personal physical training and other related services (“Services” or “Training Sessions”) with independent certified physical personal trainers who provide such services. Training Sessions are delivered live on the Platform via online video by trainers. Trainers must register and open an account on the Platform to access and use its features, including to provide or receive the Services, all in accordance with the terms and conditions set out in these Terms.
2. ROLE OF WRKOUT
As the host of the Platform which allows users to engage for Services and trainers to offer Services, WRKOUT enables connections between both parties but is not in an agency relationship with any user of the Platform. WRKOUT does not own, control, supervise, monitor, have access to or manage training sessions, which the trainers provide as independent contractors and not as employees or agents of wrkout. wrkout’s relationship with trainers is on an independent contractor basis, and neither are entitled to employment benefits the company may provide to its employees, including without limitation, workers’ compensation insurance, unemployment insurance benefits, group health insurance benefits, and pension and similar benefits. WRKOUT makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, expertise, skills, experience or availability of trainer or the services, as more particularly provided in these Terms.
3. ACCOUNT
3.1 REGISTRATION
In order to use the various Platform features, you, as a trainer, must register for and maintain an active membership account (“Account”), which you may do so only if are eligible under Section 3.2. Account registration requires you to submit to WRKOUT certain personal information, including your name, address, mobile phone number and age, and if you are a registering as a user, your certification that you are capable of participating in physical training and at least one valid payment method supported by WRKOUT. In addition, if you wish to become a Trainer, you must meet eligibility criteria to become a Trainer and enter into the Trainer Agreement. TrainerS must register and enter into a contractor agreement with WRKOUT, and provide basic information to self-certify their experience and qualifications. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including a material change to your health or having an invalid or expired payment method on file, may result in your inability to access or use the Services. userS and TrainerS may only maintain one Account at any time and may not transfer or assign their Account to or share access to their Account with someone else. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your account and must immediately notify WRKOUT if you suspect that your credentials have been lost or stolen or that your account has otherwise been compromised. As permitted by applicable law, we may, but have no obligation to (i) ask you to provide identification or other information, (ii) undertake checks designed to help verify your identity or background, (iii) screen you against third-party databases or other sources and request reports from service providers, and (iv) obtain reports from public records of criminal convictions or sex offender registrations or their local equivalents. Having an Account enables you, as a user, to purchase or, as a Trainer, to provide Training Sessions and to obtain various other goods and services from time to time, including Third-Party Services.
3.2 ELIGIBILITY
You are not permitted to register an Account unless you meet the following criteria, and by registering an Account, you represent and warrant to WRKOUT that:
3.2.1
You are at least 18 years of age, or the age of legal majority in your jurisdiction (if higher than 18);
3.2.2
You have the legal capacity to be bound by these Terms;
3.2.3
You are not prohibited by law of any country from using the Platform and providing or receiving the Services or from conducting business with WRKOUT, a company incorporated under the laws of the Province of British Columbia, Canada;
3.2.4
You do not already have a registered Account; and
3.2.5
Your Account has not been previously limited, suspended or terminated by us for Default and we have not granted you express written permission to register a new Account.
4. BILLING AND PAYMENTS
4.1 WRKOUT FEES
WRKOUT Personal Studio is free to use. Should premium features become available, WRKOUT reserves the right to charge trainers according the the fee structure that is implemented.
4.2 BILLING
When applicable, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. If auto-renewal is enabled for the Services you have subscribed for, you will be charged automatically in accordance with the term you selected. Sensitive and private data exchange happens over an SSL secured communication channel and is encrypted and protected with digital signatures, and the Website and Services are also in compliance with PCI vulnerability standards in order to create as secure of an environment as possible for Users. Scans for malware are performed on a regular basis for additional security and protection. If in our judgment, your purchase constitutes a high-risk transaction, we will require you to provide us with a copy of your valid government-issued photo identification, and possibly a copy of a recent bank statement for the credit or debit card used for the purchase. We reserve the right to change products and product pricing at any time. We also reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
5. REFERRAL PROGRAM FOR TRAINERS
5.1 TRAINER REFERRALS
WRKOUT will pay $20 for each referral that trainer make on completion of a first training session of the referred trainer.
5.2 LIABILITY AND ASSUMPTION OF RISK
You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you invite to join your Training Sessions. You acknowledge that WRKOUT does not own, control, monitor, have access to or manage Training Sessions. You acknowledge that physical fitness training that will be conducted during each Training Session carries inherent risks to your person and property and that of your guests. You hereby agree that, to the maximum extent permitted by applicable law, you assume the entire risk arising out of your and your guests’ access to and use of the Platform and participation in any Training Session, use of any other Services, or any other interaction you have with TrainerS or other userS whether in person or online. This means it is your responsibility to investigate a Training Session to determine whether it is suitable for you, to disclose to your Trainer at the start of a Training Session, and to monitor your physical condition and health before, during and after any Training Sessions. For example, Training Sessions may carry risk of bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Training Sessions.
6. NETWORK ACCESS
Trainers are individually responsible for obtaining the data network access necessary to use or provide the Services (including Training Sessions). Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and applications (including video camera, microphone and speakers having minimum capabilities and any updates thereto. WRKOUT does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
7. PROHIBITION ON RECORDING
No one is permitted to record, photograph or take screenshots of any Training Session nor copy, reproduce, publish, display, broadcast or distribute any video recording, photograph or screenshot of a Training Session on any website, social media or any other online or offline platform whatsoever without the express written consent of the other party and the party that is the subject of the recording, photograph or screenshot provided that You may, with the express permission of the participant as indicated by participants acceptance of recording prior to the Training Session, take video recording, photographs and screenshots for the purpose of training that customer and for no other purpose whatsoever. You acknowledge and agree that a breach of this provision by you will allow WRKOUT to immediately terminate your membership or account for Default. You acknowledge that WRKOUT shall have no liability to any user resulting from a breach of this provision by any other user.
8. ACCURACY OF INFORMATION
Occasionally there may be information on the Website that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, availability, promotions and offers. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Website or Services is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information on the Website including, without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Website should be taken to indicate that all information on the Website or Services has been modified or updated.
9. THIRD-PARTY SERVICES
If you decide to enable, access or use third-party services, be advised that your access and use of such other services are governed solely by the terms and conditions of such other services, and we do not endorse, are not responsible or liable for, and make no representations as to any aspect of such other services, including, without limitation, their content or the manner in which they handle data (including your data) or any interaction between you and the provider of such other services. You irrevocably waive any claim against WRKOUT Media Inc. with respect to such other services. WRKOUT Media Inc. is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such other services, or your reliance on the privacy practices, data security processes or other policies of such other services. You may be required to register for or log into such other services on their respective platforms. By enabling any other services, you are expressly permitting WRKOUT Media Inc. to disclose your data as necessary to facilitate the use or enablement of such other services.
10. BACKUPS
We perform regular backups of the Website and its Content and will do our best to ensure the completeness and accuracy of these backups. In the event of a hardware failure or data loss, we will restore backups automatically to minimize the impact and downtime.
11. LINKS TO OTHER RESOURCES
Although the Website and Services may link to other resources (such as websites, mobile applications, etc.), we are not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with any linked resource, unless specifically stated herein. We are not responsible for examining or evaluating, and we do not warrant the offerings of any businesses or individuals or the content of their resources. We do not assume any responsibility or liability for the actions, products, services, and content of any other third parties. You should carefully review the legal statements and other conditions of use of any resource which you access through a link on the Website and Services. Your linking to any other off-site resources is at your own risk.
12. PROHIBITED USES
In addition to other terms as set forth in the Agreement, you are prohibited from using the Website and Services or Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website and Services, third party products and services, or the Internet; (h) to spam, phish, pharm, pretext, spider, crawl, or scrape; (i) for any obscene or immoral purpose; or (j) to interfere with or circumvent the security features of the Website and Services, third party products and services, or the Internet. We reserve the right to terminate your use of the Website and Services for violating any of the prohibited uses.
13. TERMINATION AND OTHER MEASURES
13.1 ACCOUNT TERMINATION
You may terminate your membership or Account at any time in the WKROUT application. WRKOUT may terminate your membership or Account for any reason by giving you 30 days’ notice via email or using any other contact information you have provided for your Account and the net of any outstanding amounts due to WRKOUT, shall be paid to you. WRKOUT may also terminate your membership or Account immediately and without notice if you are in Default. If your Account has been inactive for more than two years, we may suspend or terminate your Account without prior notice. In the case of termination or suspension, all amounts remaining in your Account shall be refunded to you.
13.2 USER VIOLATIONS
If (i) you breach these Terms, Platform Rules, Content guidelines or any of our other policies, as enacted or amended by us from time to time, (ii) you violate applicable laws, regulations, or third-party rights, (iii) WRKOUT believes it is reasonably necessary to protect WRKOUT, its users or third parties; or (iv) your payment method on file has expired or is invalid (any one of these events, a “Default”), WRKOUT may, with or without prior notice:
- Terminate your membership or Account or use of the Platform;
- Remove Training Sessions, Reviews, or other Content;
- Cancel pending or confirmed bookings; or
- Revoke any special status associated with your membership or Account.
For minor violations or where otherwise appropriate, in each case, as WRKOUT determines in its sole discretion, you may be given notice of any intended measure by WRKOUT and an opportunity to resolve the issue. You may inquire about actions taken by us under this Section by contacting customer service.
13.3 LEGAL MANDATES
WRKOUT may take any action it determines is reasonably necessary to comply with applicable law, or an order or request of a court, law enforcement, or other administrative agency or governmental body.
13.4 EFFECT OF TERMINATION
If your membership is terminated, any confirmed Training Sessions will be automatically cancelled and you will not be entitled to any refunds. Once your Account has been terminated, you are not entitled to a restoration of your Account or any of your User Content. If your access to or use of the Platform has been limited or your Account has been suspended or terminated by us for Default, you may not register a new account without our express written permission or access or use the Platform through an account of another user.
14. INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright and related rights, trademarks, designs, patents, inventions, goodwill and the right to sue for passing off, rights to inventions, rights to use, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, rights to claim priority from, such rights and all similar or equivalent rights or forms of protection and any other results of intellectual activity which subsist or will subsist now or in the future in any part of the world. This Agreement does not transfer to you any intellectual property owned by WRKOUT Media Inc. or third parties, and all rights, titles, and interests in and to such property will remain (as between the parties) solely with WRKOUT Media Inc. All graphics and logos used in connection with the Website and Services are owned by WRKOUT or its licensors. Other trademarks, service marks, graphics and logos used in connection with the Website and Services may be the trademarks of other third parties. Your use of the Website and Services grants you no right or license to reproduce or otherwise use any of WRKOUT Media Inc. media or third-party trademarks.
15. CONTENT
15.1 PLATFORM CONTENT
The Platform contains text, photos, audio, video, information, software, code and other content (collectively, “Content”). You acknowledge that all intellectual property rights for the Content (other than User Content) are the exclusive property of WRKOUT and/or its licensors and agree that you will not remove, modify or obscure any copyright, trademark, service mark or other proprietary rights notices. You may not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any Content accessed through the Platform except to the extent you are the legal owner of User Content. WRKOUT reserves the right to remove or delete any Content at its sole discretion without any prior notice to you.
15.2 USER CONTENT
We do not own any data, information or material (collectively, "Content") that you submit to WRKOUT Media Inc. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all submitted Content. You grant us permission to access, copy, distribute, store, transmit, reformat, display and perform the Content of your user account solely. You also grant us the license to use, reproduce, adapt, modify, publish or distribute the Content created and submitted by you for commercial, marketing or any similar purpose.
16. "AS IS" AND "AS AVAILABLE" DISCLAIMER OF WARRANTY
YOU UNDERSTAND AND AGREE THAT THE PLATFORM, ITS CONTENT AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WRKOUT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, WRKOUT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
For example: (i) we do not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any trainer, Training Session or third party service; (ii) we do not warrant the performance or non-interruption of the Platform; and (iii) we do not warrant that verification, identity or background checks conducted on trainers are accurate and complete or that they will identify past misconduct or prevent future misconduct. Any references to a trainer being “verified” (or similar language) indicate only that the trainer or WRKOUT has completed a relevant verification or identification process and nothing else. The disclaimers in these Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties we cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
17. LIMITATIONS OF LIABILTY
NEITHER WRKOUT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR ANY CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS, (II) THE USE OF OR INABILITY TO USE THE PLATFORM OR ANY CONTENT, (III) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS YOU MAY HAVE WITH SOMEONE YOU INTERACT OR MEET WITH THROUGH, OR AS A RESULT OF, YOUR USE OF THE PLATFORM, OR (IV) BOOKING OF A TRAINING SESSION, INCLUDING THE PROVISION OR USE OF TRAINING SESSIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WRKOUT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET OUT IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL WRKOUT’S AGGREGATE LIABILITY FOR ANY CLAIM OR DISPUTE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, YOUR INTERACTION WITH ANY USER, OR YOUR USE OF OR INABILITY TO USE THE WRKOUT PLATFORM, ANY CONTENT, OR ANY TRAINING SESSION, EXCEED THE AMOUNT YOU PAID AS A USER OR RECEIVED IN COMPENSATION AS A TRAINER DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
THESE LIMITATIONS OF LIABILITY AND DAMAGES ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND WRKOUT. IF APPLICABLE LAW DOES NOT ALLOW THE LIMITATIONS OF LIABILITY SET OUT IN THESE TERMS, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
18. INDEMNIFICATION
To the maximum extent permitted by applicable law, you agree to release, defend (at WRKOUT’s option), indemnify, and hold WRKOUT (including its affiliates) and its officers, directors, employees, agents and anyone for whom WRKOUT is responsible at law harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with: (i) your breach of these Terms (including any supplemental or additional terms that apply to a product or feature), including our Platform Rules or Content Guidelines or any of our other policies applicable to you pursuant to these Terms, (ii) your improper use of the Platform, (iii) your interaction with any user at a Training Session or otherwise, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use, or (iv) your breach of any laws, regulations or third party rights such as intellectual property or privacy rights.
19. GOVERNING LAW AND DISPUTE RESOLUTION
19.1 DISPUTE RESOLUTION AND WAIVER OF RIGHTS
You agree that any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its construction or its enforceability (a “Dispute”) shall be resolved exclusively and finally in accordance with this Section 16. UNLESS OTHERWISE EXCEPTED UNDER THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT ALL DISPUTES WILL BE RESOLVED OUTSIDE OF COURT BY MEDIATION AND ARBITRATION AS CONTEMPLATED UNDER THESE TERMS AND BROUGHT BY YOU SOLELY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR SIMILAR PROCEEDING, AND YOU HEREBY WAIVE ALL RIGHTS TO LITIGATE A DISPUTE IN ANY COURT, TO BE HEARD BY A JURY OR TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR SIMILAR PROCEEDING. YOU ALSO UNDERSTAND THAT OTHER RIGHTS THAT YOU MAY HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE IN MEDIATION OR ARBITRATION. THE WAIVER OF SOME OR ALL OF THE FOREGOING RIGHTS IS PROHIBITED BY LAW IN SOME JURISDICTIONS, AND TO THE EXTENT SO PROHIBITED, MAY NOT APPLY TO YOU.
19.2 EXCEPTIONS TO MANDATORY MEDIATION AND ARBITRATION
19.2.1
Opting Out
Notwithstanding Section 16.1, you may choose to pursue a Dispute in a court of competent jurisdiction instead of mediation or arbitration by e-mailing us at [e-mail address] within 30 days from the date that you first consent to these Terms of Use (the “Opt-Out Deadline”). Your e-mail must clearly state the name and address registered to your Account and a statement that you wish to opt out of mediation or arbitration. Any request to opt out received after the Opt-Out Deadline will be invalid. By not opting out by the Opt-Out Deadline, you are deemed to have agreed to and accepted the dispute resolutions provisions as set out in these Terms. [NTD: we may only want to provide opt out rights in those jurisdictions that require them.]
19.2.2
Sexual Harassment or Assault
Notwithstanding Section 16.1, where you allege claims of sexual assault or sexual harassment occurring in connection with your use of the Services, you may elect to bring those claims in a court of competent jurisdiction instead of mediation or arbitration.
19.2.3
Waivers Apply
WRKOUT agrees to honor your election of forum where you have opted out within the Opt-Out Deadline or with respect to your individual sexual assault or sexual harassment claim, but in so doing, DOES NOT WAIVE THE ENFORCEABILITY OF THIS SECTION 16 AS TO ANY OTHER PROVISION TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING, BUT NOT LIMITED TO, THE WAIVERS PROVIDED IN SECTION 16.1 REGARDING THE RIGHT TO A TRIAL BY JURY OR PARTICIPATION IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR SIMILAR PROCEEDING).
19.3 CANADA. IF YOU ARE A RESIDENT OF CANADA:
19.3.1
Choice of Law
These Terms shall be exclusively governed by and construed in accordance with the laws of British Columbia, without giving effect to any conflict of law principle, and the exclusive venue for all Disputes and all hearings and proceedings in relation thereto will be the City of Vancouver. This choice of law provision is only intended to specify the use of British Columbia law to interpret these Terms and is not intended to create any substantive right to non-residents of British Columbia to assert claims under British Columbia law whether by statute, common law, or otherwise. If your country of residence or establishment is not Canada and you nevertheless bring any legal claim against WRKOUT in Canada, this Section 19.3 will apply to the determination of which law, venue, applicable law and dispute resolution provisions in these Terms apply to you.
19.3.2
Mediation and Arbitration
Any Dispute shall be first mandatorily submitted to mediation proceedings under the Rules (“BCICAC Mediation Rules”) of the British Columbia International Commercial Arbitration Centre (“BCICAC”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such BCICAC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Domestic Commercial Arbitration Rules of the BCICAC (“BCICAC Domestic Arbitration Rules”). The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the BCICAC Domestic Arbitration Rules. The place of both mediation and arbitration shall be Vancouver, British Columbia. The language of the mediation and/or arbitration shall be English.
19.3.3
Confidentiality
The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the BCICAC, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
19.4 UNITED STATES. IF YOU ARE A RESIDENT OF THE UNITED STATES:
19.4.1
Choice of Law
These Terms shall be exclusively governed by and construed in accordance with the laws of the State of California without giving effect to any conflict of law principles, and the exclusive venue for all Disputes and all hearings and proceedings in relation thereto will be the City of Los Angeles. This choice of law provision is only intended to specify the use of California law to interpret these Terms and is not intended to create any substantive right to non-residents of California to assert claims under California law whether by statute, common law, or otherwise. If your country of residence or establishment is not the United States and you nevertheless bring any legal claim against WRKOUT in the United States, this Section 19.4 will apply to the determination of which law, venue, applicable law and dispute resolution provisions in these Terms apply to you.
19.4.2
Mediation and Arbitration
Any Dispute shall be first mandatorily submitted to mediation proceedings administered by the American Arbitration Association’s (AAA) mediation division, AAA Mediation.org, under their Mediation Procedures (the “Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”). The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the AAA Rules. The place of both mediation and arbitration shall be Los Angeles, California. The language of the mediation and/or arbitration shall be English.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that, to the extent the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) applies to this Section 16.4, the FAA will govern its interpretation and enforcement and proceedings pursuant thereto. You and WRKOUT agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
19.4.3
Confidentiality
The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the AAA, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
19.4.4
Hardship
The arbitration shall be held either: (i) at the location described above unless such location requires you to travel in excess of 100 miles from your home or place of business in which case the arbitration will take place such other location as may be mutually agreed upon by you and WRKOUT; or (ii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, WRKOUT will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against WRKOUT in your local small claims court within the United States, if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding
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