Terms and Conditions

Last updated: February 7, 2022

These Terms and Conditions (“Terms”) govern your use of the Service from Get Out Of Shape, LLC., 107 Ridgely Ave. 14C, Annapolis, MD 21401 (referred to as the “Company," "we," "us," or "our"). The “Services” refers to Your Muscle Whisperer website, accessible at www.YourMuscleWhisperer.com (“Website”), including all first-party content displayed within or linked through the website (such as our YouTube videos and social media content), interactions with, feedback to, and communications related to the Website (such as promotions or email communications relating to the Services), and your purchase of any offerings or goods through the Website (including free trials and subscriptions).

Please read these Terms carefully before using the Services. We may change these Terms or modify features of the Services at any time. The most current version of the Terms can be viewed by clicking the “Terms and Conditions” link on the Website. By using the Services, you accept these Terms, and you accept any changes to the Terms by continuing to use the Services after we post any changes. If you disagree with any part of these Terms, then you should not use the Services.

I.              IMPORTANT NOTICES

PLEASE NOTE THAT SECTION XIX CONTAINS A BINDING ARBITRATION CLAUSE and CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS FOR RESOLVING ANY DISPUTE WITH US. BY ACCEPTING THESE TERMS, YOU AGREE TO RESOLVE DISPUTES THROUGH ARBITRATION ON AN INDIVIDUAL BASIS.

THE SERVICEs ARE NOT AN ATTEMPT TO PRACTICE MEDICINE OR PROVIDE MEDICAL ADVICE. yOUR USE OF THE SERVICES DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH THE COMPANY OR ANY LICENSED healthcare provider.

THE SERVICES ARE INTENDED TO PROVIDE GENERAL, PERSONAL, AND EDUCATIONAL INFORMATION. the SERVICES ARE NOT INTENDED TO PROVIDE INSTRUCTIONS IN THE EVENT OF AN EMERGENCY. IF YOU BELIEVE YOU SITUATION OR SYMPTOMS ARE URGENT OR LIFE-THREATENING, CALL 911.

APPLICATION OF OR RELIANCE ON ANY OF the CONTENT, TECHNIQUES, IDEAS, OR SUGGESTIONS ACCESSED THROUGH THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK. do not forgo seeking medical care from a licensed healthcare provider if you have questions, concerns, or symptoms related to health topics or information that may be presented or referenced in the Service.

II.            OUR PRIVACY PRACTICES

By accessing or using the Services, you agree that we may collect, use, and share your personal data as disclosed in our Privacy Policy, which is hereby incorporated by reference into these Terms. Please review our Privacy Policy for information about our privacy practices.

III.         AGE OF MAJORITY; ORDERS AND SUBSCRIPTIONS

By using the Services, you represent that you are over the age of 18. The Company does not permit those under age 18 to use the Services. By subscribing to the Services or otherwise taking advantage of the Services, including any promotions or free trials, you warrant that you are legally capable of entering into binding contracts and that you have the legal right to use the payment card that you provide to us.

IV.          USER CONTENT

You remain fully responsible for any information, content, or materials that you provide to us or the Services (“User Content”).  You agree not to provide User Content that infringes on the privacy, proprietary, or other rights of any third party; is false, misleading, or inaccurate; or violates any applicable laws.  You may only submit User Content that you have the right to submit.  You agree to promptly inform us if you become aware that any of the User Content that you provide to us is inaccurate. 

You continue to own any User Content that you submit through the Services, but by submitting User Content, you grant us a royalty-free, irrevocable, perpetual, non-exclusive, worldwide, fully-sublicensable license to publish, reproduce, distribute, display, perform, edit, adapt, modify, and otherwise use your User Content (or any portion thereof) in any way that we want and in any form, media, or technology now known or later developed, subject to the applicable privacy policy. 

We may monitor, review, edit, remove, delete, or disable access to your User Content at any time, without prior notice and in our sole discretion, as we deem necessary to mitigate any violation of law or cybersecurity incident.

V.            NO MEDICAL ADVICE

The materials and information provided through the Services are presented for information purposes only and are in no way intended to replace professional medical care or attention by a qualified practitioner or healthcare provider.  The Services should not be used as a basis for diagnosis or choice of treatment.  Please consult a doctor or other healthcare provider for any health problems. 

VI.          USE OF THE SERVICES AT YOUR OWN RISK

If you rely on the Services or any content within the Services, you do so solely at your own risk. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services. Use of the Services should not replace your good judgment and common sense.

Our goal is to provide helpful services for your general, personal, and educational use, but we make no endorsement, representation, or warranty of any kind about any content, information, or Services. The Services are not a replacement for or intended to be a substitute for medical advice from a qualified healthcare provider. We recommend that you consult with a qualified healthcare provider with respect to any matter relating to your physical or mental health, especially symptoms that may require diagnosis or medical attention. Only a qualified healthcare provider can provide you with advice on what is safe and effective for you. Never disregard professional medical advice or delay seeking it because of something you have read or seen on the Services or because you have taken any action within the Services.

VII.        Subscriptions

Subscription Period

The Service or some parts of the Service are available only with a paid subscription. You will be billed in advance on a recurring and periodic basis (such as daily, weekly, monthly or annually), depending on the type of subscription plan you select when purchasing the subscription.

At the end of each period, your subscription will automatically renew under the exact same conditions unless you cancel it or the Company cancels or modifies it.

Subscription Cancellations

You may cancel your subscription renewal either through your account settings page or by contacting the Company. You will not receive a refund for the fees you already paid for your current subscription period and you will be able to access the Service until the end of your current subscription period.

Refunds

Except when required by law, paid subscription fees are non-refundable. We will not reimburse for any part of the Services already accessed, nor will we reimburse you retroactively, regardless of whether you accessed the Services during your subscription term. Certain refund requests for subscriptions may be considered by the Company on a case-by-case basis and granted at the sole discretion of the Company.

Free Trial

The Company may, at its sole discretion, offer a subscription with a free trial for a limited period of time. You may be required to enter your billing information in order to sign up for the free trial. If you enter billing information when signing up for a free trial, you will not be charged by the Company until the free trial has expired. On the last day of the free trial period, unless you cancel your subscription or trial in accordance with these Terms, you will be automatically charged the applicable subscription fees for the type of subscription you have selected.

At any time and without notice, the Company reserves the right to (i) modify the terms and conditions of the free trial offer, or (ii) cancel such free trial offer.

Pricing

Your applicable pricing is disclosed to you at the time you make your order or register for a subscription. Please note that you may be offered a promotional price, such as a free trial subscription, that is available for the length of time disclosed on your offer. We will also notify you of the price of your subscription after your promotional period has ended. The total cost of your subscription may include applicable taxes that are not accounted for in the subscription price. After you complete your order, you will receive an email that includes your total periodic (e.g., monthly) charges, including any taxes. 

By making an order or starting a subscription to Services, you authorize the Company to charge you for the order price or subscription fee at the then-current rate, and any other charges you may incur in connection with your use of the Services, to the payment method you provide during registration or ordering until you cancel your subscription. You permit the Company, or service providers on our behalf, to store information as needed to facilitate billing and payment.

We reserve the right to change any and all prices for any Services at any time or as frequently as permissible in the jurisdiction in which you reside, for any reason, by updating the prices set forth on the applicable portion of the Services. If we increase the price of the Services, we will provide you with prior written notice. If you do not wish to keep your subscription at the increased price, you may cancel your subscription to the Services in accordance with these Terms within 30 days of the date of our notice.

The prices quoted may be revised by the Company subsequent to accepting an order in the event of any occurrence affecting delivery caused by government action, variation in customs duties, increased shipping charges, higher foreign exchange costs and any other matter beyond the control of the Company. In that event, you will have the right to cancel your order.

Payments

You agree to pay in full the prices and fees, plus any applicable taxes, for any purchases made using your user credentials or user account via credit, debit, or other payment methods accepted by the Company at the time of purchase. If payment is not received by us, you remain responsible for the uncollected amounts and agree to promptly pay all amounts due upon demand by the Company or applicable payment card issuer. Payment can be made through various payment methods we have available, such as Visa, MasterCard, Affinity Card, American Express cards or online payment methods (PayPal, for example).

Payment cards (credit cards or debit cards) are subject to validation checks and authorization by your card issuer. If we do not receive the required authorization, we will not be liable for any delay or non-delivery of your order.

Order Cancellation by the Company

We reserve the right to refuse or cancel your order or subscription at any time for certain reasons, including but not limited to the availability of goods and services; errors in the description or prices for goods or services; errors in your order or information provided by you in connection with your order; or if fraud or an unauthorized or illegal transaction is suspected.

VIII.     OTHER Promotions

Any Promotions made available through the Service may be governed by rules that are separate from these Terms. If you participate in any promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a promotion conflict with these Terms, the promotion rules will apply.

IX.          User Accounts

User accounts can only be established by individuals in the United States who are at least 18 years old and who otherwise meet the criteria in these Terms. When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your account and access to our Services.

You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password, whether your password is with our Service or a third-party social media service. You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

The Services are meant for individual use only. Your user account is personal to you and may not be transferred to or shared with any other person. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

X.            PROHIBITED CONDUCT

You may not access or use, or attempt to access or use, the Services to take any action that could harm us or any third party, interfere with the operation of the Services, or use the Services in a manner that violates any laws.  For example, and without limitation, you may not:

·  engage in unauthorized spidering, “scraping,” or harvesting of content or personal data, or use any other unauthorized automated means to compile information;

·  use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service or any activity conducted on the Service or attempt to probe, scan, test the vulnerability of, or breach the security of any system or network;

·  attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Service;

·  engage in any other conduct that restricts or inhibits any person from using or enjoying the Services, or that, in our sole judgment, exposes us or any of our users, affiliates, or any other third party to any liability, damages, or detriment of any type.

Violations of system or network security may result in civil or criminal liability.  We may investigate and work with law enforcement authorities to prosecute users who violate the Terms.  We may suspend or terminate your access to the Services for any or no reason at any time without notice. 

XI.          Intellectual Property

The Services and its original content (excluding User Content provided by you or other users), features, and functionality are and will remain the exclusive property of the Company and its licensors. 

The Service is protected by copyright, trademark, and other laws of the United States and other countries. All copyrights in the Services are owned by us or our third-party licensors to the full extent permitted under the United States Copyright Act and all international copyright laws.  You may not publish, reproduce, distribute, display, perform, edit, transcribe, adapt, modify, or otherwise exploit any part of the Services without our consent.

Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of the Company.

XII.        Your Feedback to Us

You assign all rights, title and interest in any feedback or other communications you provide the Company. If for any reason such assignment is ineffective, you agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such feedback without restriction.

XIII.     Links to Other Websites AND THIRD-PARTY CONTENT

Our Services may contain links to third-party websites, content, or services that are not owned, operated, or controlled by the Company (“Third-Party Content”). The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party or Third-Party Content.. We do not necessarily review, control, sponsor, or otherwise accept responsibility for Third-Party Content or the practices of any third parties. Use of any Third-Party Content is at your own risk.

You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Content. We strongly advise you to read the terms and conditions and privacy policies of each third-party website that you visit.

XIV.      Termination BY THE COMPANY

We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach these Terms. Upon termination, your right to use the Services will cease immediately.

XV.        AS-IS SERVICES; Disclaimer OF WARRANTIES

The Service is provided to you "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, the Company does not make any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components. We expressly disclaim ANY LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT INCLUDED IN THE SERVICES OR ANY THIRD-PARTY CONTENT LINKED TO OR FROM THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES), CLAIMS, DAMAGES OR LIABILITIES ARISING OUT OF RELIANCE UPON THE ACCURACY OF ANY USER CONTENT YOU PROVIDE TO US. 

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

XVI.      INDEMNIFICATION

You agree to indemnify, defend, and hold us and our owners, employees, licensors, contractors, and agents harmless from and against any and all liabilities, damages, losses, costs, expenses (including reasonable attorneys’ fees), claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, arising out of or in any way connected with (1) your negligent, fraudulent, or unlawful use of the Services; (2) your User Content; (3) your breach of these Terms or of any warranties made by you; or (4) your violation of any law or the rights of a third party.  We reserve the right to assume the exclusive defense of any claim for which we are entitled to indemnification by you, in which event you will cooperate with us as we reasonably request, including without limitation in asserting any available defense.

XVII.   LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL WE, OR OWNERS, EMPLOYEES, AGENTS, AND ASSIGNS BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOST PROFITS, OR OTHER DAMAGES WHATSOEVER ARISING IN CONNECTION WITH THE USE OF THE SERVICES, ANY INTERRUPTION IN AVAILABILITY OF THE SERVICES, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LOSS OF DATA, OR USE, MISUSE, RELIANCE, REVIEW, MANIPULATION, OR OTHER UTILIZATION IN ANY MANNER WHATSOEVER OF THE SERVICES OR THE DATA COLLECTED THROUGH THE SERVICES, EVEN IF ONE OR MORE OF US OR THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.  WITHOUT LIMITING THE FOREGOING SENTENCE, IN NO EVENT WILL OUR OR OUR OWNERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR CONNECTED WITH THE SERVICES EXCEED THE GREATER OF $100 OR THE AMOUNT THAT YOU PAID US TO ACCESS THE SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OF CERTAIN CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT FULLY APPLY TO YOU.

XVIII. Governing Law AND FORUM

The laws of the United States, excluding its conflicts of law rules, shall govern these Terms and your use of the Services. The Services are intended for use by residents of the United States and we do not intentionally provide access to the Services to individuals located outside the United States. You agree that your access to and use of the Services will be governed by and will be construed in accordance with the law of the State of Maryland without regard to principles of conflicts of laws.  You agree that any claim or dispute against us arising out of or relating to the Services must be resolved by a court located in Maryland, unless agreed upon by all parties.

XIX.      BINDING ARBITRATION and CLASS ACTION WAIVER

If you have any concern or dispute about the Services, you agree to first try to resolve the dispute informally by contacting the Company.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.  BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. 

In order to expedite and control the cost of disputes, we and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to the Services (“Dispute”) will be resolved as follows to the fullest extent permitted by law: 

·  Notice of Dispute.  In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution.  You must send any Notice of Dispute by first class U.S. Mail to us at [ADDRESS].  We will send any Notice of Dispute to you by first class U.S. Mail to your address if we have it, or otherwise to your email address. You and we will attempt to resolve any Dispute through informal negotiation within sixty days from the date the Notice of Dispute is sent.  After sixty days, you or we may commence arbitration.

·  Small Claims Court.  You may choose to litigate any Dispute in small claims court (or the equivalent), if the Dispute meets all the requirements to be heard in small claims court.  You may litigate in small claims court whether or not you first negotiated informally.  

·  Binding Arbitration and Governing Law.  If the Dispute is not resolved by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act.  Any court with jurisdiction over the parties may enforce the arbitrator’s award.  To the fullest extent permitted by law, the Terms of any Dispute that might arise between you and us shall be governed by the laws of the United States and the State of MARYLAND, without regard to its conflict of law provisions. 

·  Class Action Waiver.  Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

·  Arbitration Procedures.  Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules in effect at the time the Dispute is filed.  You may request a telephonic or in-person hearing by following the AAA rules.    If the AAA is unavailable for some reason, the parties shall agree on an alternative arbitration forum. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.

·  Arbitration Fees.  Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay unless you get a fee waiver under the applicable arbitration rules. If you paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Dispute had been resolved in a court with jurisdiction. However, we will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

·  Jurisdiction of Arbitrator.  The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.  This means that all questions about validity or unconscionability will be determined by an arbitrator, not a court.

·  Temporary Injunctive Relief.  Prior to the appointment of an arbitrator, either party may seek temporary injunctive relief in any court of competent jurisdiction without waiving its right to arbitration. 

·  Severability.  If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of section VII remaining in full force and effect.  If this entire agreement to arbitrate is found to be illegal or unenforceable, the parties agree to the fullest extent permitted by applicable law that any Dispute relating to your use of the Services or these Terms shall be commenced and heard in the appropriate court in ANNE ARUNDEL COUNTY, MARYLAND, USA.  To the fullest extent permitted by law, you agree to submit to the personal and exclusive jurisdiction of the courts located within ANNE ARUNDEL COUNTY, MARYLAND, USA.

XX.        Severability and Waiver

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

XXI.      Contact Us

If you have any questions about these Terms, you can contact us at  https://www.yourmusclewhisperer.com/contact