Ana Caban, Inc. (“ACI”) offers fitness and healthy lifestyle information through an online community. Through this online community, ACI offers its users access to information, coaching, telecourses, online courses, seminars, retreats, downloadable podcasts and workout routines, User Forums (as hereafter defined) and blogs regarding various health and lifestyle topics (collectively, the “Services”).
Please review this legal agreement (the “Agreement”) carefully. By accessing and using the Site, you (“You” and “Your”) agree to be bound by the terms and conditions of this Agreement. This Agreement is made between You and Ana Caban, Inc. and applies to all information and services offered at www.anacaban.com (the “Site”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE THE SITE OR SERVICES PROVIDED THEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE SUBJECT TO CHANGES MADE BY ACI, AT ANY TIME, EFFECTIVE UPON NOTICE TO YOU, WHICH NOTICE SHALL BE DEEMED TO HAVE BEEN PROVIDED UPON ACI’S POSTING OF THE CURRENT VERSION OF THIS AGREEMENT ON THE SITE.
Before You are eligible to use certain Services, you must register with ACI, set up an account (“Account”) and agree to pay the fees (“Fees”) that are set out in ACI’s fee schedule on the Site for such Services (“Fee Schedule”). Other Services may be available for purchase without requiring an Account, the purchase of which shall also be subject to the Fees set forth on the Site for such Services. The Fee Schedule is part of this Agreement and ACI reserves the right, at any time, to change any Fees or charges for using the Services, which changes shall be effective upon their posting on the Site. Continued use of the Services shall constitute Your consent to any Fee changes. ACI may from time to time offer a free trial (“Free Trial”) for use of its Site and Services, subject to the terms and conditions of this Agreement.
By using the Site and Services, You represent and warrant that You are at least 18 years old and that You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement.
Acknowledgments. Subject in each case to the terms and conditions listed in the remainder of this Agreement, You hereby acknowledge and agree that:
You will use the Site and Services in a manner consistent with any and all applicable laws and regulations.
This Agreement shall apply to all the Services provided by ACI, including, without limitation, programs, telecourses, seminars, online courses, coaching, retreats, downloadable podcasts and workout routines, User Forums and all materials provided in conjunction therewith.
You will be mindful of Your own wellbeing during Your use and implementation of the Services provided on the Site and will seek medical treatment if necessary (including, without limitation, therapy). ACI is not a licensed physician, nutritionist, psychologist, therapist or other medical provider and does not provide any medical advice, diagnosis, treatment advice, or a second opinion for health conditions. If you have an existing ailment or an urgent health problem, consult with a health care provider before acting on information contained on the Site. ACI is not responsible for any decisions made by You as a result of using the Services and any consequences thereof.
You are 100% responsible for Your progress and results from Your use of the Services. You accept and agree that You are the one vital element to Your success and that ACI cannot control Your actions or the outcome thereof. ACI makes no guarantee or warranty that the Services will meet Your requirements or that all users will achieve the same results.
Use of certain Services will be subject to the Fees set forth in the Fee Schedule. If You have commenced the use of Services for which a Fee is charged via a Free Trial, You will be notified of the completion or termination of Your Free Trial period and may purchase an Account based on the Fee Schedule. Access to the Services for which a Fee is charged will be disabled until You have selected a pricing plan from the Fee Schedule and a method of payment and authorization to charge corresponding stated Fees has been provided to ACI. Fees are billed according to the Fee Schedule, which is subject to change at any time.
All amounts paid to ACI for use of the Services are non-refundable, regardless of whether You fail to use the Services for which you have agreed to pay (including cancellation of Your attendance of courses for which you have signed up) or You cancel your Account prior to Your completion of any of the Services for which you have paid. Further, in the event ACI has granted You the right to utilize a payment plan to pay the Fees associated with Your Account or Services purchased, and You cancel your Account (or fail to use the Services or cancel attendance of a course) prior to completion of all payments, ACI shall have the right to continue to charge You and collect such payments despite Your cancellation. You shall not cancel the credit card or form of payment that is provided to ACI without ACI’s prior written consent and Your provision to ACI of an alternate, valid form of payment.
You shall pay ACI for all Fees incurred on time. To the extent that You provide ACI with credit card information for payment of the Fees for Your Account and/or purchased Services, ACI shall be authorized to charge Your credit card for such Fees. If You elect a payment plan to make payments to ACI, ACI shall be authorized to make all charges at the time they are due and not require separate authorization in order to do so. Should You default on any payments, ACI reserves the right to take any and all actions necessary to collect the sums due and payable. You shall remain liable for any and all costs incurred by ACI in connection with its collection of payments from You, including, but not limited to, credit card chargeback fees, insufficient funds fees, collection agency fees, and attorneys’ fees.
Your Account is nonexclusive and nontransferable. It shall continue until (1) the Account is terminated by You or ACI, or (2) the time period for the validity of the Account for which You paid expires, which expiration may occur within a pre-determined time period from the date upon which You enroll for Your Account (which time period shall be provided to You upon registration) or on an expiration date which shall be posted on the Site by ACI at any time, from time-to-time thereafter. You may not assign or otherwise transfer Your Account to any other person or entity.
Notwithstanding any other rights, ACI may, in its complete and sole discretion, disable or terminate Your Account, in each case at any time with or without notice, should You fail to comply with the terms and conditions of this Agreement or pay ACI in a timely manner. There will be no refunds upon the termination of Your Account. ACI shall have no liability to You or any third party because of such termination or action.
ACI reserves the right, but disclaims any obligation or responsibility, to (1) refuse to post or communicate or remove any submission from any Site user that violates this Agreement (including the Rules of Conduct (as hereafter defined)), and (2) identify any user to third parties, and/or disclose to third parties any submission or personally identifiable information, when ACI believes in good faith that such identification or disclosure will either (A) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (B) help to enforce this Agreement (including the Rules of Conduct) and/or to protect the safety or security of any person or property, including the Site. Moreover, ACI retains all rights to remove any submissions/postings from the Site at any time for any reason or no reason whatsoever, without notice thereof.
ACI may provide links to other websites on the Site that it believes may be beneficial to its users (“Third Party Websites”). These Third Party Websites are in no way affiliated with ACI and ACI does not monitor the information contained therein. As such, ACI is not liable for and makes no guarantees regarding any information provided on such Third Party Websites, including, without limitation, the accuracy, relevance, legality or decency of material contained on such Third Party Websites. You shall use these Third Party Websites at Your own risk and will not hold ACI liable for any damages sustained as a result of linking to any/all Third Party Websites.
You agree (1) not to copy, transfer, assign, rent, resell, distribute or use the Site or Services other than as expressly authorized in this Agreement, (2) not to remove any copyright notice, trademark notice, and/or other proprietary legend or indication of confidentiality set forth on or contained in the Site or Services, and (3) to refrain from using the Site or Services for any other purpose other than as expressly authorized in this Agreement.
You may not reverse engineer, decompile, recompile, precompile, disassemble, hack, port, or otherwise attempt to discover the source code, object code, or underlying structure of the Site or Services, or any software, documentation, or data related to ACI.
You may not merge or modify any of the Services or documentation provided by ACI, nor may You create derivative works or publishing of the Site, Services or other materials provided by ACI or contained on the Site.
The Site may have unexpected downtime or outages which may cause a loss of data or information provided by You on the Site. ACI shall have no liability for any loss of Your data.
You hereby assign to ACI all rights, title and interest in any suggestions or comments You provide related to Your use of the Site or Services.
You understand and agree that although ACI may place notices on the Site regarding the possibility of adding extra features to the Site, such notices are in no way a guarantee to provide such features or services at any time.
THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT WHILE YOU USE THE SITE AND SERVICES AND/OR HAVE AN ACCOUNT. UPON TERMINATION OF YOUR ACCOUNT AND/OR YOUR USE OF THE SITE AND SERVICES, ANY FEES ALREADY PAID WILL NOT BE RETURNED. EVEN AFTER YOUR USE OF THE SERVICES CEASES AND/OR YOUR ACCOUNT IS TERMINATED, THIS AGREEMENT WILL REMAIN IN EFFECT.
Participation in Courses, Programs and User Forums; Rules of Conduct.
“User Forum” means an area, site or feature offered as part of the Site that offers the opportunity for Site users to distribute submissions/postings for viewing by one or more Site users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, and/or e-mail function.
You acknowledge that User Forums and features offered therein are for public and not private communications, and You have no expectation of privacy with regard to any submission to a User Forum. ACI cannot guarantee the security of any information You disclose through any of these media; You make such disclosures at Your own risk.
You are and shall remain solely responsible for the submissions You distribute on or through the Site under Your Account or otherwise by You in any User Forum and for the consequences of submitting and posting same. ACI has no duty to monitor any User Forum.
Also, You should be cautious about information provided by others, and You acknowledge that the use of any submission posted in any User Forum is at Your own risk. For example, ACI is not responsible for, and it does not endorse, the opinions, advice or recommendations posted or sent by users in any User Forum and ACI specifically disclaims any and all liability in connection therewith.
ACI owes You no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to submissions You distribute.
The following rules of conduct apply to the Site, the Services (including courses and programs), and all User Forums associated therewith (the “Rules of Conduct”). By using the Site, Services and User Forums, You agree that You will not distribute any submission that:
(A) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (B) is bigoted, hateful, or racially or otherwise offensive; (C) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (D) otherwise harms or can reasonably be expected to harm any person or entity;
is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
infringes or violates any right of a third party including: (A) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (B) right of privacy (specifically, You must not distribute another person’s personal information of any kind without their express permission) or publicity; or (C) any confidentiality obligation;
is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Site; or
(A) does not generally pertain to the designated topic or theme of the relevant User Forum; (B) violates any specific restrictions applicable to a User Forum, including its age restrictions and procedures; or (C) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
** ACI cannot and does not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of this Agreement, and, as between You and ACI, You hereby assume all risk of harm or injury resulting from any such lack of compliance.
Recordings may be made of any courses and programs offered as part of the Services in which You participate (including, without limitation, User Forum discussions and postings) and Your voice, written communications and any other information provided by You during Your participation in such Services (including audio and/or video materials You provide) (the “User Information”) may be included in such recordings. You hereby consent to the recording of You and Your User Information by ACI and grant to ACI, its successors, licensees and assigns, all rights of every kind and nature whatsoever, in perpetuity, to use Your User Information, as well as Your name, image, likeness, and voice, in connection with the preparation, production, performance, broadcast, exhibition and exploitation of lecture, teaching, course, program, marketing, and any other materials deemed appropriate by ACI for use in connection with ACI’s business and other goods/services provided by ACI (collectively referred to hereafter as the “Materials”). You understand and acknowledge that ACI may edit Your User Information, conversations, correspondence, communications (whether written, audio or video), and appearance and may juxtapose images of You and Your conversations and actions and You hereby authorize ACI to do so in its sole and absolute discretion. The Materials may be exhibited in any and all media, now known or hereafter discovered throughout the world, in perpetuity, without any obligation of any kind whatsoever to You. This grant shall extend to advertising and publicity relating to the Materials and ACI’s business and products, any sponsors, distributors, exhibitors thereof, and the sponsors’, distributors’ and exhibitors’ products and services.
You agree that You will not bring, institute or assert or consent that others bring, institute or assert, any claim or action against ACI or its successors, licensees or assigns, on the ground that anything contained in the Materials or connected with the exploitation of other allied rights or contained in the advertising or publicity issued in connection with the Materials or exploitation of other allied rights is defamatory, reflects adversely upon or libels You, violates Your rights to privacy or publicity, or violates any other rights, and You hereby for Yourself, Your heirs, successors, licensees and assigns release ACI and its successors, licensees and assigns from any and all claims, demands, actions, causes of action, suits, costs, expenses, settlements, liabilities or damages whatsoever that You, Your heirs, successors, licensees or assigns may now or hereafter have against ACI or its successors, licensees, or assigns. You also hereby for Yourself, Your heirs, successors, licensees and assigns waive any and all right to seek equitable relief against ACI and its successors, licensees and assigns, by injunction or otherwise, to restrain, enjoin and/or prevent ACI’s use of the Materials.
You understand that ACI is relying upon Your consent and agreement herein contained in the preparation, production, broadcast, exhibition and exploitation of the Materials and other allied rights, and this consent and acknowledgment is given to ACI as an inducement for it to proceed with the preparation, production, broadcast, exhibition and exploitation of the Materials.
Intellectual Property. ACI solely and exclusively owns all intellectual property and other rights, title and interest in and to the Site, Services and Materials, including, but not limited to, the ACI name, logo(s), trademarks, Site content, programs and course content, and the look and feel of the Site and all marketing and other business materials, except as expressly provided for in this Agreement. All content located on or provided through the Site and provided by ACI to You through the Services is the sole and exclusive property of ACI and is protected by United States Federal Copyright and Trademark law. Unauthorized use of the content may violate copyright, trademark, patent, and/or other federal or foreign laws.
No Support. Nothing in this Agreement shall obligate ACI to provide any support for the Site or Services. ACI may, but shall be under no obligation to, correct any defects in the Site or Services. You hereby agree to promptly report to ACI any defects You find in the Site or Services to aid ACI in creating improved revisions of such items.
Anti-Spam Policy. You shall not use the Site or Services, in whole or in part, in any way, for the purpose of composing and/or sending unsolicited e-mail, chain letters, junk electronic mail, or any other purpose that involves the utilization of distribution lists to any third party business or individual that has not given express specific permission to be included in such a distribution list. Any electronic mail advertisement that is composed and addressed to a third-party recipient with whom You do not have an existing business, commercial or personal relationship and which is not sent at the express request or consent of the recipient to receive such a message from You is strictly prohibited (hereinafter referred to as “Spamming”). ACI reserves the right to immediately terminate Your Account if You use the Site or Services, in whole or in part, for Spamming purposes, and ACI reserves the right to seek appropriate legal action as necessary for any such violation.
Except as explicitly stated at the time You establish an Account, or as explicitly defined in this Agreement, ACI does not disclose to any third party the personally identifiable information its users provide to ACI when establishing an Account and/or when using the Site and Services. All financial/billing information is used solely to charge users for their usage of ACI’s Site and Services. This information is not used for marketing purposes.
ACI may also collect demographic information that You provide to ACI, such as Your zip code or age. ACI uses this demographic information to tailor the Site to its users’ interests. ACI may share demographic information on an aggregate non-identifiable basis with third parties. Although ACI does not at the present time, it may, at some time in the future, have advertisers with display ads on the Site that solicit or contain technology to collect information about its users for the advertisers, but ACI will not permit such advertisers to collect any personal information from its users within ACI’s Site.
ACI will only disclose Your personal data or the contents of Your private communications with ACI in accordance with the terms of this Agreement or if required to do so by law, or as otherwise stated in this section, or in the good faith belief that such action is necessary to: (1) conform to the edicts of the law or comply with legal process served on ACI; (2) protect and defend the rights or property of ACI and others, including among other things to enforce this Agreement; (3) act under exigent circumstances to protect the personal safety of ACI’s users or the public; (4) to correct technical problems and malfunctions in how ACI provides its Services to You and to technically process Your information; (5) to take precautions against liability; (6) to respond to claims that information You have submitted to or through ACI has violated the rights or interests of a third party; or (7) as permitted by law or to provide information to law enforcement agencies. Also, certain technical processing of e-mail messages and their content that is required for: (A) sending and receiving messages; (B) conforming to connecting networks’ technical requirements; (C) conform to the limitations of the Services; or (D) other similar technical connecting requirements.
By using the Site, You consent to ACI’s collection and use of Your personal information as described in this Agreement. ACI reserves the right to modify this privacy statement and related business practices at any time by posting updated text on the Site, and Your continued use constitutes acceptance of those changes.
Disclaimer of Warranties. To the maximum extent permitted by applicable law, ACI provides its Site and Services “AS IS AND WITH ALL FAULTS,” and hereby disclaims all warranties and conditions, either express, implied or statutory, including, but not limited to, any warranties regarding Your results from participation in or use of the Site and Services, any implied warranties or conditions of merchantability, of fitness for a particular purpose, of results, of ability to achieve a particular result, of non-infringement, of lack of viruses, of accuracy or completeness of responses, of defect or error correction, of ability to execute uninterrupted or error-free, of compatibility with any particular platform, and of lack of negligence or lack of workmanlike effort, all with regard to the Site and Services. THE ENTIRE RISK AS TO THE USE, QUALITY OF OR PERFORMANCE OF THE SITE, SERVICES, AND MATERIALS REMAINS WITH YOU. YOU ACKNOWLEDGE THAT THE INFORMATION PROVIDED BY ACI ON THE SITE AND THROUGH THE SERVICES IS MADE AVAILABLE TO YOU AS SELF-HELP TOOLS AND THAT ACI DOES NOT GUARANTEE THEIR ACCURACY OR THEIR APPLICABILITY TO YOUR CIRCUMSTANCES; THE RISK OF THEIR USE REMAINS WITH YOU.
Specifically, and without limiting the foregoing, You acknowledge that ACI has not made any representations or warranties with respect to the Site or Services or the functionality thereof nor the outcome of results of Your use of the information provided through the Site and Services.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL ACI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENATIVES, THIRD PARTIES OR AFFILIATES (“ACI PARTIES”) BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, DAMAGES FOR LOSS OF PROFITS, REVENUES OR SALES OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, YOUR IMPLEMENTATION OR FAILURE TO IMPLEMENT INFORMATION OBTAINED ON THE SITE AND/OR THROUGH YOUR USE OF THE SERIVCES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF ACI PARTIES, AND EVEN IF ACI PARTIES HAVE BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ACI BE LIABLE TO YOU IN CONNECTION WITH THE SITE, SERVICES AND/OR THIS AGREEMENT FOR ANY AMOUNT GREATER THAN THE TOTAL AMOUNT OF THE FEES PAID TO ACI BY YOU DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE ON WHICH THE RELEVANT CLAIM WAS MADE.
Indemnity. You hereby agree to indemnify, protect, defend and hold harmless ACI Parties from and against any and all claims, demands, causes of action, costs, losses and expenses (including without limitation, reasonable attorneys’ fees) arising out of or relating to Your use of the Site and/or Services, including: (a) Your breach of this Agreement, (b) Your activities in connection with the use of the Site and/or Services, and (c) any allegation that any materials that You transmit through the Site and/or Services violate the law or infringe or otherwise violate copyright, trademark, trade secret or other intellectual property or other rights of any third party.
General Terms. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California. The Superior Court of the State of California, County of Los Angeles shall have exclusive jurisdiction and venue over any disputes relating to or arising out of the Site, Service, Materials or this Agreement. This Agreement supersedes any and all agreements, either oral or written, between You and ACI with respect to the subject matter hereof and contains all of the representations, covenants, and agreements between You and ACI with respect to the Site, Services, Materials and this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. In the event a dispute shall arise between You and ACI with regard to the Site, Services, Materials or this Agreement, and ACI is the prevailing party in such dispute, then ACI shall be entitled to recover its reasonable attorneys’ fees and costs incurred in connection therewith.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site and Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
BY USING THE SITE AND/OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT, THAT YOU HAVE CAREFULLY READ AND CONSIDERED THE TERMS, COVENANTS, CONDITIONS AND NOTICES WHICH COMPRISE THIS AGREEMENT IN THEIR ENTIRETY, THAT YOU UNDERSTAND THEM AND THEIR SIGNIFICANCE AND THAT YOU ACCEPT THEM AND AGREE TO THEM, WITHOUT MODIFICATION.