Terms and Conditions
Last Updated: January 2021
To Contact Tone It Up:
1110 Manhattan Ave.
Manhattan Beach, CA 90266
TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. These Terms and Conditions (the “Terms”) govern your access or use of the ToneItUp.com and my.toneitup.com website (the “Website”), the Tone It Up software application, and any other applications, websites, content, products, and services (collectively, the “Service”) made available by Tone It Up, Inc., or its representatives, affiliates, officers, or directors (collectively, “TIU,” “we,” “us,” or “our”). By using or accessing the Service, you agree to these Terms. If you do not agree to these Terms, please do not use the Service or use TIU’s products or services, and, if applicable, cancel your registered user account or subscription with us.
PLEASE READ: THESE TERMS CONTAIN A MANDATORY ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS BY REQUIRING ANY DISPUTE BETWEEN YOU AND TIU, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND REQUIRING YOU TO FORGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES IN SECTION 2 BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. BY ENTERING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Binding Arbitration & Class Action Waiver
Mandatory Binding Arbitration:
By agreeing to these Terms, you agree that all disputes, claims, or causes of action arising from or related to the Services or these Terms, or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), will be resolved through confidential, binding arbitration and not in a court of law in any jurisdiction, and not in a class, collective, representative, or consolidated action or proceeding, as further set forth below.
You and TIU agree that the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”) shall govern any controversy or claim related to the Service or the Terms, including the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, notwithstanding any choice of law or other provision in these Terms. It is the parties’ intent that the Act and the rules promulgated by JAMS Mediation, Arbitration and ADR Services (“JAMS”) shall preempt all state laws to the fullest extent permitted by law. You and TIU further agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes concerning the interpretation, applicability, enforceability or formation of this Arbitration Agreement. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement, in whole or in part, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Class Action Waiver:
You acknowledge and agree that you and TIU are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and TIU agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section 1 shall be deemed null and void in its entirety, and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, you and TIU each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trade secrets, patents or other intellectual property rights.
You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within 30 days following the date you first agree to these Terms, by email at firstname.lastname@example.org or by mail at Tone It Up, Inc., 1110 Manhattan Avenue, Manhattan Beach, California 90266. If mailed, the Opt-Out Notice must be post-marked no later than 30 days following the date you first agree to these Terms. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the Arbitration Agreement, all other parts of the Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may enter with TIU.
Rules & Procedures:
Arbitration proceedings will be administered in accordance with the Act and the rules promulgated by JAMS and any supplementary rules then in effect (the “JAMS Rules”), except as modified by these Terms. Discovery in said arbitration shall be limited in scope to the specifics of liability on the Dispute, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control.
Arbitration may be conducted in person, through the submission of documents, by phone, online, or in person in in Los Angeles, California or at another mutually agreed location. All Disputes shall be resolved by one arbitrator; however, for Disputes exceeding $5,000,000, upon your or TIU’s request, the Dispute shall be decided by three Arbitrators. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules. We will reimburse those fees for claims totaling less than $10,000, unless the Arbitrator finds your Dispute frivolous.
All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the Arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the Arbitrator(s), upon a showing of good cause or by the parties’ agreement, may extend the commencement of the hearing for up to an additional sixty (60) days. The Arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The Arbitrator(s) will have the authority to decide whether any Dispute is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS Rules of an arbitration demand is the equivalent of the filing of a lawsuit. The Arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of TIU to: (i) exercise self-help remedies, such as, but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as, but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. Except as provided in this Arbitration Agreement, the prevailing party in any action or arbitration related to these Terms shall be entitled to its reasonable attorney fees and costs.
Changes to Arbitration Agreement:
Notwithstanding the provisions of this Section 1, if TIU changes any of the terms of this Section 1 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us a written notice of such rejection within 30 days of the of the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided either by email at email@example.com or by mail at Tone It Up, Inc. 1110 Manhattan Avenue, Manhattan Beach, CA 90266. In order to be effective, the notice must include your full name, address, and signature, and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and TIU in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
The terms of this paragraph survive any termination of the Terms.
Terms & Conditions – In General
For purposes of these Terms, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, TIU, including, without limitation, its subsidiaries.
By using the Service, you agree to be legally bound and to abide by these Terms, just as if you had signed this agreement. If you do not comply with these Terms at any time, we reserve the right, if applicable, to terminate your password, user account, and/or access to the Service (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Service, including, but not limited to, (i) restricting the time the Website is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user’s right to use the Service. You agree that any termination or cancellation of your access to, or use of, the Service may be effected without prior notice. If you do not abide by the provisions of these Terms, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to such information and/or files, or our Website. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Service.
From time to time, we may supplement these Terms with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on the Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms.
Restrictions on Use of Materials
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display the Service and the material provided therein for your personal, noncommercial use, provided that you comply fully with the provisions of these Terms. You acknowledge that the Service contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on this Website are trademarks of their respective owners. TONE IT UP is the trade name and the registered trademark and service mark of TIU. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on the Service. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
Tone It Up’s paid social media partners can be identified by the hashtag #TIUPartner. Tone It Up reserves the rights to their content and rights to leverage #TIUPartner content in marketing materials and communication.
All the Sites’ materials, including, without limitation, all TIU product logos, design, text, graphics, software, other files, and the selection and arrangement thereof (the “Content”) are Copyright © ____-2019 Tone It Up, Inc. ALL RIGHTS RESERVED. Unless expressly stated otherwise, TIU or its suppliers or licensors own and retain other proprietary rights in all products available through the Sites. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of TIU or the respective copyright owner. You may not, without the express written permission of TIU or the respective copyright owner, (a) copy, publish, or post any materials on any computer network or broadcast or publications media; (b) modify the materials; or (c) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (a) sell, resell, or make commercial use of the Sites, its content, or services or products obtained through the Sites; (b) collect and use of any product listings or descriptions; (c) make derivative uses of the Sites or its Content; or (d) use of any data mining, robots, or similar data gathering and extraction methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of TIU or any third party.
Becoming a Registered User
There is no cost to become a registered user of the Service. You do not have to become a registered user to use the Service. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of our Service. You must register in accordance with instructions that you will find on the Service to participate in, and to contribute to, any Community Area or use of the “Public Profile” feature of our Service. A “Community Area” means any blog, personal page, group page, chat room, message board, bulletin board, recipe swap, or similar activity where you can communicate with other users of our Website or post your own Content.
If you elect to become a registered user of our Service, you agree to provide us with true, accurate and complete information about yourself (“Registered User Data”), and to maintain and promptly update the Registered User Data and any other information you provide to us, to keep it accurate. Without limiting any other provision of these Terms, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of our Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of this Website. You further agree not to register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website.
Community Standards and Conduct Guidelines
You acknowledge that all Content posted, emailed, or otherwise transmitted to or on this Website, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the “Postings”), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to the Service. We do not control the Postings posted, emailed or otherwise transmitted on our Website by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of our Service (as described below), you understand that by using the Service, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through the Service.
You agree not to use the Service (including any Community Areas) to:
Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
Impersonate any person or entity, including, but not limited to any user of the Service, a director, officer, employee, shareholder, agent or representative of TIU, our affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with TIU, or our affiliates or any other person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through the Service;
Upload, post, email or otherwise transmit any Postings or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party;
Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation;
Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of a Community Area (or other portion of the Service) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Service; Interfere with or disrupt the Service or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
“Stalk”, “Cyberstalk” or otherwise harass another user, employee of the Service or TIU; or
Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Service, including user names or passwords; or access or attempt to access another user’s account without his or her consent;
Your privilege to use the Service (including the Community Areas) and contribute to discussions on the Community Areas depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of the Service and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any of these Terms, we may terminate, in our sole discretion, your use of, or participation in, any Community Area.
As used in this Section, “Submission” means any Content you send, email, post, display, distribute, or otherwise transmit to us or the Service, such as messages, email, data, information (including biographical information), text, music, sounds, photographs, graphics, images, designs, icons, video or audio clips, files and comments, including but not limited to, written testimonials, feedback, suggestions, reviews, questions or other material or content regarding our existing products, marketing strategies, business and customer service. Submissions expressly include those transmitted through your own social channels (including by tagging @toneitup or using hashtags), comments on Tone It Up’s blog, and your posts or images shared in the Tone It Up Facebook Group.
If, at our request or on your own, you send, email, post, display, distribute, or otherwise transmit Submissions to us or the Service, you agree to the following:
You grant us and our affiliates, licensees, successors and assigns a royalty-free, perpetual, transferable (in whole or in part), irrevocable, fully paid-up, worldwide, sublicenseable, non-exclusive right (including a waiver of any moral rights you may have) and license (as well as consent) to use, license, copy, reproduce, modify, excerpt, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display any Submissions (in whole or in part and with or without the use of your name) worldwide and/or to disclose or incorporate the Submissions in other works in any form, media, or technology now known or later developed, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes, without compensation or credit, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights”) that may exist in such Submissions.
Tone It Up is free to use any ideas, concepts or know-how contained within such Submissions for any and all purposes, including, but not limited to, developing, modifying, and marketing its products and services. Tone It Up’s use of such Submissions shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby authorize Tone It Up to execute any document or take any action Tone It Up may consider appropriate in order to confirm the rights granted by you to Tone It Up in these Terms. To the extent permitted by applicable laws, you also give up any claim that any use by Tone It Up of your Submission violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set forth therein.
You grant us the right to pursue before any appropriate forum any person or entity that violates Tone It Up’s or your rights under any applicable law in the Submissions.
You also represent and warrant that:
You own and control the Submissions that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute such Submissions and to grant the license set forth herein;
Such Submissions are true, accurate, complete, and not misleading and do not infringe or otherwise violate or breach any applicable laws or regulations;
The usage, publication, and posting of such Submissions do not violate these Terms and will not and could not violate any privacy, publicity, intellectual property, contract and/or any other rights of any person or entity or otherwise cause injury to any third person or entity; and
To the extent you are not the exclusive holder of all Rights in a Submission, any third party holder of any Rights, including moral rights in such Submissions, has completely and effectively waived all such Rights and validly and irrevocably granted to you the right to grant the license stated above.
Your Submissions are deemed non-confidential, and we are under no obligation to treat your Submissions as proprietary information. Without limiting the foregoing, we reserve the right to use the Submissions as we deem appropriate in our sole discretion, including without limitation, deleting, rejecting, refusing to post, altering, adapting, or editing the Submissions and any further material created under these Terms. We are not obliged to make any use of the Submissions or exercise any of the rights granted by these Terms. We are under no obligation to offer you any payment or compensation for Submissions, respond to any Submissions, or attribute authorship of Submissions to you.
If, under any applicable law, it is determined that you retain moral rights in the Submissions which you have posted to the Service, you hereby agree that (1) you will not require that any personally identifying information be used in connection with the Submissions; (2) you will not oppose the publication, use, modification, or deletion of the Submissions by us; and (3) you waive and will not claim or assert any entitlement to any moral rights in any of the Submissions, to the extent permissible under applicable law.
Parental or Guardian Permission
Some of the Content on the Service may not be appropriate for children. CHILDREN UNDER THE AGE OF 13 ARE NOT PERMITTED TO USE THE SERVICE. We strongly recommend that children between the ages of 13 and 18 ask for their parent’s or guardian’s permission before using our Service.
Tone It Up x Sandals Summer Challenge Sweepstakes
PLEASE READ: These Rules contain a mandatory arbitration agreement and a class action waiver requiring you to resolve any disputes between you and Sponsor, and Sponsor’s related and affiliated entities and all predecessors, assigns and successors thereto and all of their respective fiduciaries, shareholders, equity holders, members, managers, partners, directors, divisions, officers, managers, executives, employees, independent contractors, freelancers, consultants, attorneys, administrators, agents and insurers and all persons acting by, through, under or in concert with any of them (collectively, “Sponsor Parties”) through final and binding arbitration on an individual basis and requiring you to forgo jury trials, class or collective actions or proceedings, and all other types of court proceedings of any kind. Unless you opt out of the arbitration agreement following the procedures set forth in Section 3 below, you will be bound by this arbitration agreement. By entering the Sweepstakes, you acknowledge that you understand and expressly agree to the mandatory arbitration agreement.
1. SPONSOR: The [Tone It Up / Sandals Resort Summer Challenge Sweepstakes] (the “Sweepstakes”) is sponsored by Tone It Up, Inc. (the “Sponsor”).
2. NO PURCHASE OR PAYMENT IS NECESSARY TO ENTER OR WIN. A purchase does not increase your chances of winning. Void where prohibited. By participating in this Sweepstakes, each participant agrees to be bound by these Official Rules and to the decisions of Sponsor, which are final and binding on all matters relating to the Sweepstakes.
3. BINDING ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER: By agreeing to these Rules, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THE SWEEPSTAKES OR THESE RULES (“DISPUTES”), AND ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. You also agree that any Dispute shall be resolved through confidential, binding arbitration in accordance with the Expedited Procedures in the JAMS Comprehensive Arbitration Rules and Procedures then in effect, and not in a court of law in any jurisdiction, and not in a class, representative, or consolidated action or proceeding, as further set forth below.
Binding Arbitration: You and the Sponsor Parties agree that the arbitrator (the “Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of the terms of this Section 3 (the “Arbitration Agreement”), including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Official Rules are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
Class Action Waiver: You acknowledge and agree that you and the Sponsor Parties are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and the Sponsor Parties agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section 3 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, you and the Sponsor Parties each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyright rights, trade secrets, patents or other intellectual property rights.
Opt-Out Procedure : You can choose to reject this Arbitration Agreement by sending Sponsor a written opt-out notice (“Opt-Out Notice”) by no later than September 1, 2021 email to to firstname.lastname@example.org or by mail to Tone It Up, Inc., 1110 Manhattan Avenue, Manhattan Beach, California 90266. If mailed, the Opt-Out Notice must be post-marked by no later than September 1, 2021. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the Arbitration Agreement, all other parts of the Official Rules will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future Arbitration Agreements that you may enter with any of the Sponsor Parties.
Rules, Procedures & Governing Law: The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures and any supplementary rules then in effect (the “JAMS Rules”), except as modified by these Terms. The JAMS Rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/ or by calling JAMS at (800) 352-5267. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Rules. Notwithstanding any choice of law or other provision in the Rules, you and the Sponsor Parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement of proceedings pursuant thereto. It is the intent of the parties that the JAMS Rules and FAA shall preempt all state laws to the fullest extent permitted by law. If the JAMS Rules and FAA are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of California, without regard to its choice or conflict of law provisions.
Discovery in the arbitration shall be limited in scope to the specifics of liability on the Dispute, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS Rules and this paragraph, the terms of this paragraph shall control.
All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the Arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the Arbitrator(s), upon a showing of good cause or by the parties’ agreement, may extend the commencement of the hearing for up to an additional sixty (60) days. The Arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The Arbitrator(s) will have the authority to decide whether any Dispute is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS Rules of an arbitration demand is the equivalent of the filing of a lawsuit. The Arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of Sponsor to: (i) exercise self-help remedies, such as, but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as, but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. Except as provided in this Arbitration Agreement, the prevailing party in any action or arbitration related to these Rules shall be entitled to its reasonable attorney fees and costs.
You can contact JAMS for more information on how to commence an arbitration proceeding at https://www.jamsadr.com/rules-download/ or (800) 352-5267. For claims under $10,000, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location . If your claim is at or above $10,000, your right to a hearing will be determined by JAMS.
Payment of all filing, administration, and arbitrator fees will be governed by the JAMS’s applicable rules. Sponsor will reimburse those fees for claims totaling less than $10,000, unless the arbitrator finds your Dispute frivolous. If the Sponsor Parties prevail in the arbitration, the Sponsor Parties will pay all of their attorneys’ fees and costs and will not seek to recover them from you.
4. ENTRY PERIOD: The Sweepstakes entry period begins at The Sweepstakes entry period begins at [12:01 A.M. Eastern Daylight Time (“EDT”) on August 11, 2021 and ends at 11:59 P.M. EDT on August 25, 2021 (the “Entry Period”)
5. ELIGIBILITY: The Sweepstakes is offered only to individuals (each, an “Entrant”) eighteen (18) years or older at the time of entry who are legal residents of the fifty (50) United States or the District of Columbia. Void in Puerto Rico and all jurisdictions other than those stated above and where prohibited or restricted by law. All federal, state and local laws and regulations apply. Persons in the any of the following categories are NOT eligible to participate or to win the prize: (a) employees, directors, agents and independent contractors of Sponsor; (b) employees, directors, agents and independent contractors of Sponsor’s advertising and promotional agencies; prize providers; and (c) persons who are immediate family (e.g., spouse, mother, father, sister, brother, daughter or son, regardless of where they live) or co-inhabitants (whether related or not) of any person in the preceding two categories. BY PARTICIPATING IN THE SWEEPSTAKES, YOU AFFIRM YOUR ELIGIBILITY AND AGREE TO BE BOUND BY THESE OFFICIAL RULES AND ALL DECISIONS OF THE SPONSOR, WHICH ARE FINAL, BINDING AND CONCLUSIVE WITH RESPECT TO ALL MATTERS RELATING TO THE SWEEPSTAKES.
6. SUBMISSION OF ENTRIES: To enter, an Entrant must submit two publicly viewable images (collectively, the “Transformation Images”) via the [Summer Challenge Sweepstakes Page: https://my.toneitup.com/pages/transformations]by no later than 11:59 p.m. EDT on August 25, 2021. The Transformation Images shall consist of one image of the Entrant before participating in the [Summer Challenge] and one image of the Entrant after participating in the [Summer Challenge]. An Entrant must timely cooperate with all requests for additional information or documents that the Sponsor may request in order to verify eligibility and compliance with these Official Rules. All entries must be posted to the [Summer Challenge Sweepstakes Page] during the Entry Period. Sponsor’s clock is the official timekeeping device for the Sweepstakes. Sponsor is not responsible for late or unsuccessful attempts to enter. Sponsor reserves the right to determine, in its sole discretion, which entries have satisfied the entry requirements. AN ELIGIBLE ENTRANT MUST SUBMIT AN ENTRY IN ACCORDANCE WITH THESE OFFICIAL RULES. NO OTHER METHOD OF SUBMISSION WILL BE ACCEPTED.
8. SELECTION OF WINNERS: Four (4) winners will be selected by founders Katrina and Karena on or after September 7, at Sponsor’s address above based on a random drawing of all eligible entries received (the “Winners”). The first two individuals selected will receive one Grand Prize each (individually, “Grand Prize Winner”). The second two individuals selected will receive one Runner-Up prize each (individually, “Runner Up Prize Winner”).
Grand Prize: Two (2) Grand Prize Winners will be chosen at random from all eligible entries. Each individual Grand Prize Winner will receive all of the following (collectively, the “Grand Prize”):
(i) 5-day/4-night Luxury Included® vacation for two (2) adults (the Grand Prize Winner and one guest who must be 18 years or older at the time of booking) to any one of the fifteen Sandals Resorts listed below located in Jamaica, Antigua, Saint Lucia, The Bahamas, Barbados & Grenada (the “Sandals Prize”)
Sandals Resorts is a Luxury Included® romantic, adults-only destination exclusively for couples. Unique Travel, Corp. (“UTC”) a Panamanian Corporation located at Calle Aquilino De Guardia, No. 8, Panama, Republic of Panama worldwide representative of Sandals Resorts is the Sandals Prize Provider.
The Sandals Prize will include a Deluxe luxurious accommodations (one (1) room, double occupancy), all meals, unlimited Premium Liquors, daily & nightly entertainment, an array of land and water sports, including daily Scuba diving (for certified divers), snorkeling, Wi-Fi in all rooms and public areas, resort gratuities, resort taxes, and Sandals transfers to and from the selected or designated airport.
The Sandals Prize must be redeemed for travel within one (1) year from the Sweepstakes end date, August 25, 2021 – August 24, 2022, and is not transferable or redeemable for cash. No extension will be given after the redemption date has expired. If the Sandals Prize is not redeemed, the prize will be forfeited. The Sandals Prize is subject to space availability and selected blackout dates. Reservations will not be confirmed until 30 days prior to the selected travel date. Confirmation of travel dates will only be provided 30 days prior to the departure date.
The Sandals Prize will be issued in the form of a Prize Certificate from Unique Travel Corp affiliate company Unique Vacations Inc. The Sandals Prize Certificate will outline the terms and conditions of the prize and redemption procedures, and will be provided to each Grand Prize Winner by Sponsor. The approximate retail value of the Sandals Prize is $4,100. Actual value may vary based on various factors, including fluctuations in currency conversion rates, special promotions and the price for accommodations.
Exclusions: Airfare, car rental, personal charges, incidentals, telephone calls, Premium Wi-Fi, Red Lane® Spa treatments and services, specialty dining, tours & excursions, inter-island transportation, SCUBA certification courses, room services, meals outside of the selected or designated resort, island departure taxes, purchases made at the Sandals Specialty Shops, baggage fees, customs duties, and travel insurance are not included.
Substitution of Resort: UTC and/or Sandals Resorts reserves the right to substitute the selected resort for another resort in the resort’s chain in a similar category and to change dates without prior notice for any circumstance(s) so require or beyond the resort’s control based upon availability for the secured travel dates. The terms and conditions agreed to [by each Grand Prize Winner] shall apply with equal applicability to any resort which is the subject of substitution or deviation. UTC nor the resorts shall be liable for any claim made whatsoever, including but not limited to loss, compensation, or refund by reason of such substitution or deviation.
COVID-19: A respiratory virus, called Covid19, has been identified as the cause of an outbreak of respiratory illness that began in December 2019 in the city of Wuhan, Hubei Province, China. Additional cases have been identified in other countries. The Prizewinner can find updated information on the Center for Disease Control’s website. The health and safety of resort guests is a priority. Prior to entering the selected or designated resort, all guests will be administered a no-touch thermal scan to screen for fever. Anyone with any fever (≥38 C°/100.4 F°) will not be allowed to enter the resort. Sandals Resorts reserves the right to implement other COVID-19 protocols as the need arises. There is a risk in entry regardless of temperature checks, and all guests enter at their own risk and shall be advised as follows: If you experience any symptoms of any illness while at the Resort, please stay in your room and contact the Medical Center. Consultation charges will be waived. If you develop symptoms after leaving the Resort, see a doctor right away and advise the Resort. Sandals Resorts reserves the right to implement additional health, safety and Covid-19 protocols in its sole discretion All guests shall further acknowledge and agree that they are fully aware of the contagious nature and effects of COVID-19 and voluntarily assume that risk and responsibility and further agree that they will release, indemnify and hold harmless UTC and Sandals Resorts International Limited, and each of their respective parent corporations, affiliates, subsidiaries insurers, directors, officers, employees, successors, assigns, agents and representatives, against any claims and/or damages whatsoever, including legal fees relating to any infection, transmission, health condition influenced or otherwise impacted or complication by COVID-19.
Compliance with Government Entities: UTC its affiliates, and parent as well as Sandals Resorts International Limited and/or resort related entities shall have the right to comply with any and all orders, recommendations, or directions whatsoever given by any government entity or by persons purporting to act with such authority, and such compliance shall not be deemed a breach of the Agreement or any agreement entitling the Influencer to assert any claim for liability, compensation or refund.
Travel Safety Warning: Due to the fact that travel and tourism are constantly in a state of flux, the Grand Prize Winners shall consult the U.S. State Department’s website at <travel.gov> and enter the name of the country(ies) that they plan to visit for the latest information concerning traveler safety, security, and health advisories.
All guests are responsible for checking the travel and entry protocols for the destination that they are traveling to before they depart and ensuring that they fully understand and comply with any such protocols. For example, for some destinations, may require obtaining a negative PCR Covid-19 test a certain number of days pre-travel and post-travel. Please visit the travel.gov website before travel and check the official Government website for the country you are visiting. UTC and/or Sandals Resorts International Ltd. shall not be responsible for any additional costs incurred for any required test or any other pre-travel requirements.
(ii) A reimbursement of actual costs incurred by the Grand Prize Winners for airfare. Sponsor will reimburse each Grand Prize Winner for airfare, in an amount not to exceed $1,000. Sponsor will not reimburse for airfare purchased using miles, points, or other vouchers. Details on how to obtain the reimbursement will be provided by Sponsor to each Grand Prize Winner. Airfare is not provided by Unique Travel, Corp. nor Unique Vacations Inc.
(iii) A $500 gift card redeemable at https://my.toneitup.com/ for products and merchandise only. The gift card may not be used for other services, subscriptions, or fees, including Tone It Up subscription fees. The approximate retail value is $500. Actual value may vary based on various factors,including special promotions.
(iv) A 640 Beach Riot Outfit Set, as pictured at https://beachriot.com/collections/tone-it-up-x-br. In the event the 640 Beach Riot Outfit Set is unavailable for any reason, an amount equivalent to the approximate retail value of the 640 Beach Riot Outfit Set will be added to the gift card redeemable at Sponsor’s website, as described above. The approximate retail value of the 640 Beach Riot Outfit Set is $196. Actual value may vary based on various factors, including special promotions.
(v) A Covey Routine Set, which includes the Covey First of All Cleanser, Next Up Vitamin C Serum, and Last But Not Least Moisturizer. In the event the Covey Routine Set is unavailable for any reason, an amount equivalent to the approximate retail value of the Covey Routine Set will be added to the gift card redeemable at Sponsor’s website, as described above. The approximate retail value is $137. Actual value may vary based on various factors, including special promotions.
Runner Up Prize: Two (2) Runner Up Prize Winners will be chosen at random from all eligible entries. Each individual Runner Up Prize Winner will receive all of the following (collectively, the “Runner Up Prize”):
(i) A $500 gift card redeemable at https://my.toneitup.com/ for products and merchandise only. The gift card may not be used for other services, subscriptions, or fees, including Tone It Up subscription fees. The approximate retail value is $500. Actual value may vary based on various factors, including special promotions.
(ii) A 640 Beach Riot Outfit Set, as pictured at https://beachriot.com/collections/tone-it-up-x-br. In the event the 640 Beach Riot Outfit Set is unavailable for any reason, an amount equivalent to the approximate retail value of the 640 Beach Riot Outfit Set will be added to the gift card redeemable at Sponsor’s website, as described above. The approximate retail value of the 640 Beach Riot Outfit Set is $196. Actual value may vary based on various factors, including special promotions.
(vi) A Covey Routine Set, which includes the Covey First of All Cleanser, Next Up Vitamin C Serum, and Last But Not Least Moisturizer. In the event the Covey Routine Set is unavailable for any reason, an amount equivalent to the approximate retail value of the Covey Routine Set will be added to the gift card redeemable at Sponsor’s website, as described above. The approximate retail value is $137. Actual value may vary based on various factors, including special promotions.
The total approximate retail value of each Grand Prize is $5,933. The total approximate value of each Runner Up Prize is $833. All federal, state and local taxes on each prize awarded are the sole responsibility of each Grand Prize Winner or Runner Up Prize Winner. Sponsor reserves the right to withhold taxes or other payments as it deems necessary to comply with applicable law. The Internal Revenue Service requires Form 1099-MISC (or successor form) to be issued and filed for any recipient who receives a prize if the annual aggregate value of the prize received is $600 or more. Sponsor will issue a Form 1099-MISC (or successor form) to each Grand Prize Winner for the total fair market value of the Prize received; such fair market value may be greater than the approximate retail value of the prize elements described above.
Each Entrant agrees that Sponsor may share information submitted by Entrant with any other person or entity for any purpose relating to the Sweepstakes, its promotion, or the exercise of Sponsor’s rights contemplated in these Official Rules.
10. WINNER NOTIFICATION AND ANNOUNCEMENT. [Winners will be notified via email at the address provided at the time of entry by Tone It Up. Winners must reply to the winner notification within 24 hours in order to receive their prize. Failure to respond to email within 24 hours may result in forfeiture of participation in the Sweepstakes and, in such case, Sponsor may select an alternate Winner by random selection from all remaining eligible entries. Each potential Winner will be required to execute, or cause to be executed, and return a notarized affidavit of eligibility and liability release (where legally permissible) for no additional consideration. If the potential Winner fails to sign and return the affidavit of eligibility and the liability release, such potential Winner will be disqualified and an alternate entry may be selected in its place from all eligible entries received. Sponsor reserves the right to extend or modify the winner notification and announcement schedule as Sponsor deems necessary in its sole discretion to complete the verification process contemplated by these Official Rules and/or to select an alternate Winner.
11. PRIZE RESTRICTIONS: In the event a Winner engages in behavior that (as determined by Sponsor in its sole discretion) is obnoxious or threatening, illegal, intended to threaten or harass any other person, or that in any way disparages or adversely affects the reputation, image, and/or goodwill of Sponsor, such behavior may, in Sponsor’s sole discretion, result in such Winner’s disqualification from the Sweepstakes and forfeiture of the Prize.
12. GRANT OF RIGHTS: Each Entrant expressly authorizes the Sponsor Parties to post such Entrant’s photograph Sweepstakes entry to such Sponsor Party’s social media account. In such instances, the posting of such photograph will be for promotional purposes only.
13. LIMITATION OF LIABILITY; RELEASE: No liability or responsibility is assumed by Sponsor or any other Sponsor Party, UTC, Sandals Resorts, Beach Riot, or Covey (collectively, “Prize Providers”) resulting from Entrant’s participation in or attempt to participate in the Sweepstakes or ability or inability to submit any information in connection with participating in the Sweepstakes. No responsibility or liability is assumed by the Sponsor, Sponsor Parties, or Prize Providers for technical problems or technical malfunction arising in connection with any of the following occurrences which may affect the operation of the Sweepstakes: hardware or software errors; faulty computer, telephone, cable, satellite, network, electronic, wireless or Internet connectivity or other online communication problems; errors or limitations of any Internet service providers, servers, hosts or providers; garbled, jumbled or faulty data transmissions; failure of any email transmissions to be sent or received; lost, late, delayed or intercepted email transmissions; inaccessibility of the website for any reason; traffic congestion on the Internet or the website; unauthorized human or non-human intervention in the operation of the Sweepstakes, including without limitation, unauthorized tampering, hacking, theft, virus, bugs, worms; or destruction of any aspect of the Sweepstakes. Neither the Sponsor, Sponsor Parties, nor Prize Providers are responsible for any typographical errors in the announcement of the prizes or these Official Rules. The Sponsor, Sponsor Parties, and Prize Providers are not responsible for any cancellations, delays, diversions or substitutions or any act or omissions the other.
Entrant agrees that the releases in these Official Rules are intended to apply to all claims whether or not known or suspected to exist with the intent of waiving the effect of California Civil Code Section 1542 and other laws requiring the intent to release future unknown claims. If Entrant is a California resident, Entrant represents and warrants that you are familiar with Section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
With full awareness of and understanding of this provision, Entrant waives and voluntarily relinquishes any right or benefit Entrant may have under Section 1542 of the California Civil Code, and any similar provision of statutory or non-statutory law of any other jurisdiction, to the fullest extent that Entrant may lawfully waive all such rights and benefits pertaining the subject matter of these Official Rules.
14. INDEMNIFICATION: Entrant agrees to indemnify, defend and hold the Sponsor Parties and/or Prize Providers harmless from and against any and all claims, damages, expenses, costs (including reasonable attorneys’ fees) and liabilities (including settlements), brought or asserted by any third party against any of the Sponsor Parties and/or Prize Providers due to or arising out of or reasonably related to Entrant’s participation in the Sweepstakes, including, but not limited to, bodily injury, death, property damage, violation or infringement of trademark, copyright, or other intellectual property rights, right of publicity, right of privacy and defamation.
15. General Terms and Conditions: Sponsor reserves the right to terminate, modify, or suspend this Sweepstakes due to any of an act of God; unavoidable accident; epidemic; pandemic, fire; blackout; act of public enemy; war, riot or civil commotion; enactment, rule, order or act of government, governmental instrumentality, or tribunal; strike, lockout, or other labor dispute; inclement weather; failure of third-party software or services; failure of essential production or technical personnel to appear or be available for production or broadcast; or other cause beyond Sponsor’s control. Sponsor is not responsible for lost, late, illegible, incomplete, damaged, mutilated, misdirected, misdelivered, or delayed entries, or for technical or human errors or failures of any kind in connection with the submission, transmission or processing of entries. SPONSOR WILL NOT BE OBLIGATED TO AWARD ANY PRIZE THAT RELATES TO OR ARISES OUT OF IMPROPER OR MISTAKEN PRIZE NOTIFICATION, OPERATION, OR FUNCTION OF THIS SWEEPSTAKES. SPONSOR RESERVES THE RIGHT TO CHANGE ANY TERM OF THESE OFFICIAL RULES OR TO ADDRESS ANY ISSUE THAT ARISES WITH UPDATES OR AMENDMENTS TO THESE OFFICIAL RULES AT ANY TIME UP TO THE DATE THAT A WINNER IS SELECTED. ALL DECISIONS BY SPONSOR ARE FINAL AND BINDING.
16. WINNER INFORMATION: The names of the Winners may be obtained by sending a self-addressed, stamped envelope postmarked to: Tone It Up, Inc., 1110 Manhattan Avenue, Manhattan Beach, California 90266.
This Sweepstakes is in no way sponsored, endorsed or administered by, or associated with any entity through which the Sweepstakes is promoted. Any questions, comments or complaints regarding this Sweepstakes should be directed to Sponsor.
These Terms apply only to the Service, and not to the websites of any third parties. We may provide, or third parties may provide, links to other worldwide websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
Third Party Products and Services
You may order services, merchandise or other products through our Service from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate the rights of any user to use our Service (or any part thereof) who infringes the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information
a physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;
identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on this website are covered by a single notification, a representative list of such works);
identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website;
your name, mailing address, telephone number and email address;
a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
a statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices with respect to this website should be sent to our designated agent for notice of claims of copyright infringement: Tone It Up, Inc., 8730 Sunset Boulevard, Suite 470, Los Angeles, CA 90069.
Password and User Security
If you are a registered user of the Service, you are entirely responsible for maintaining the confidentiality of your password and user account information. You agree to notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password. You are entirely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorized use of your user account or any other breach of security known to you.
The Service includes weight loss management and information applications and content published over the Internet, which are intended only to assist users in their personal weight loss efforts. TIU is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in the Service should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment.
You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen. The Service is intended for use only by healthy adult individuals. Except for our pre-natal workouts, which are offered to our pregnant and post-partum members, the Service is not intended for use by minors, pregnant women, or individuals with any type of health condition. All individuals, regardless of condition, should seek professional medical advice and clearance prior to initiating any form of weight loss effort or fitness regimen. There are inherent risks associated with exercise and fitness programs, and individuals engage in these activities at their own risks.
All information is intended for your general knowledge only and is not a substitute for medical advice or treatment for specific medical conditions. This information on the Service has not been evaluated by the FDA and is not intended to treat, diagnose, cure or prevent any disease. We cannot and do not give you medical advice. You should seek prompt medical care for any specific health issues and consult your physician before purchasing any product(s). We do not recommend the self-management of health problems. Information obtained by using our services is not exhaustive and does not cover all diseases, ailments, physical conditions or their treatment.
If you are being treated for an illness, taking prescription medication, or following a therapeutic diet to treat a disease, it is especially important to show the “Tone It Up Fat Burning System” weight loss plan (“Plan”) to your physician. Any modifications made to the Plan by your physician should be followed.
The Plan is designed for a safe rate of weight loss – up to two pounds per week (after the first three week). If you lose at a greater rate, you must review the Plan’s guidelines and adapt them, if necessary, to avoid rapid weight loss. Not following the Plan as designed may pose the risk of developing health complications associated with rapid weight loss.
Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER TIU, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE SERVICE OR ANY FUNCTION CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL.
NEITHER TIU, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
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Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SERVICE OR ANY WEBSITE OR WEBSITES LINKED TO THE SERVICE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICE; OR (F) ANY OTHER MATTER RELATING TO OUR SERVICE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SERVICE. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VERSED’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend TIU and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys fees and expenses) arising from your improper use of the Service or our products or offerings, your violation of these Terms, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
Governing Law and Choice of Forum
These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. For any Dispute not subject to Section 1 above, you and TIU agree that any action at law or in equity arising out of or relating to the Website, the Service, or these Terms shall be filed only in the state or federal courts located in Los Angeles County in the State of California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
The Service is controlled, operated, and administered by TIU from its offices within the United States of America. TIU makes no representation that materials on the Service are appropriate or available for use at other locations outside of the United States and access to them from territories where the contents or products available through the Service are illegal is prohibited. You may not use the Service or export the content or products in violation of U.S. export laws and regulations. If you access the Service from a location outside of the United States, you are responsible for compliance with all local laws.
Notwithstanding any of these Terms, TIU reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Service and to block or prevent future access to and use of the Service. You agree that TIU shall not be liable for any termination of your use of or access to the Service.
Third Party Rights
Only you and TIU shall be entitled to enforce these Terms. No third party shall be entitled to enforce any of these Terms and conditions.
Changes to Terms & Conditions
We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms at any time. You should check these Terms periodically for changes. By using the Service after we post any changes to these Terms, you agree to accept those changes, whether or not you have reviewed them.
In any action against us arising from the use of the Service, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms, together with the Subscription Agreement (if applicable), are the entire agreement between you and us relating to the subject matter herein. If you are a subscriber to one of our online subscription offerings or products, in the event of any conflict between these Terms and the Subscription Agreement, the Subscription Agreement shall control. These Terms may be modified only by our posting of changes to these Terms on the Service, or by written agreement of both parties. Each time you access the Service, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under these Terms. These Terms will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms, or to exercise any right under the Terms, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.