1. Scope of Agreement. This
Agreement is between You (“You” or “Your”) and
iTRAIN. This Agreement governs Your access to and use of the Site, which
includes all software, HTML and other code, and scripts running or forming
a part of the Site (collectively, the “Code”), and all information
and data that is part of the Site, including all text, graphics, photos,
illustrations, images, training sessions, and audio and audio-visual
files (collectively, the “Content”). In addition to complying
with the terms and conditions of this Agreement, You agree to comply
with the Terms of Sale that govern Your purchase of any downloadable
audio or audio-visual files (the “Files”) or other products
or services from iTRAIN (available on the Site, at http://www.iTRAIN.com/TermsOfSale.php) (the “Terms of Sale”),
and with all additional terms and conditions governing access to and
use of specific areas of the Site set forth elsewhere on the Site (collectively,
“Additional Terms”). The Terms of Sale, any Additional Terms,
are incorporated into and made a part of this Agreement. References
to this Agreement include the Terms of Sale, any Additional Terms, and
2. Binding Agreement.
BY USE. BY ACCESSING OR USING THE SITE IN ANY MANNER, YOU
ARE DEEMED TO HAVE READ, UNDERSTOOD, AND AGREED TO EACH OF THE TERMS,
CONDITIONS, AND NOTICES SET FORTH IN THIS AGREEMENT AND IN ANY INCORPORATED
AGREEMENT, POLICY, OR OTHER TERMS AND CONDITIONS. IF YOU DO NOT UNDERSTAND
OR AGREE TO EACH OF THE TERMS, CONDITIONS, AND NOTICES HEREIN AND AS
SO INCORPORATED, YOU SHOULD NOT ACCESS OR USE THE SITE IN ANY MANNER
AND, IF APPLICABLE, YOU SHOULD ARRANGE TO CANCEL YOUR ACCOUNT AND ANY
SUBSCRIPTION WITH iTRAIN.
Version. A printed version of this Agreement (including the Terms
given in electronic form will be admissible in any judicial or administrative
proceedings based upon or relating to this Agreement to the same extent
and subject to the same conditions as other business documents and records.
iTRAIN recommends that You print a copy of the most current version
of this Agreement (as well as the Terms of Sale, any Additional Terms,
3. Modification of Terms
to Modify. iTRAIN may, at any time and from time to time, in its
sole discretion, modify, add, or delete provisions of this Agreement
(as well as the Terms of Sale, any Additional Terms, and the Privacy
Policy). Each such modification, addition, or deletion will be effective
when posted and shall be deemed to be incorporated in this Agreement
by this reference. You are responsible for reviewing this Agreement
prior to each time You access or use the Site. If You object to any
such modification, addition, or deletion Your only recourse is to terminate
this Agreement and to stop any and all use of the Site. Your continued
use of the Site following any such modification, addition, or deletion
shall be deemed to constitute Your review and acceptance of, and agreement
to, each such modification, addition, or deletion.
Required to Modify or Waive. Except as provided in this Section 3,
the provisions of this Agreement (as well as the Terms of Sale, any
or amended, and none of such provisions waived, except in a written
document executed by iTRAIN.
4. Modification of Site. iTRAIN
may, at any time and from time to time, in its sole discretion, modify,
revise, or otherwise change the Site (including adding or discontinuing
any or all services or transactions offered through the Site), in whole
or in part, without notice or liability to You.
5. Right to Use Site.
Age. You represent and warrant to iTRAIN that You are at least
eighteen (18) years of age and that You possess the legal right and
ability to enter into this Agreement.
for Minor’s Use. Further, if You permit or allow any person
under eighteen (18) years of age to access or use the Site, You represent
and warrant to iTRAIN that You have authority to permit or allow such
person to access or use the Site and You agree that You are and shall
be responsible for all access to and use of the Site by such person,
including all purchases of Files from iTRAIN through the Site.
6. Use and Protection of
Password and ID.
Assignment. iTRAIN will assign a password and account ID to You so
You can access and use certain areas of the Site. Each user who uses
such assigned password and ID shall be deemed to be authorized by You
to access and use the Site, and iTRAIN shall have no obligation to investigate
the authorization or source of any such access or use. YOU ACKNOWLEDGE
AND AGREE THAT AS BETWEEN YOU AND ITRAIN, YOU WILL BE SOLELY RESPONSIBLE
FOR ALL ACCESS TO AND USE OF THE SITE BY ANYONE USING THE PASSWORD AND
ID ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THE SITE
IS ACTUALLY AUTHORIZED BY YOU, INCLUDING ALL COMMUNICATIONS AND TRANSMISSIONS
AND ALL OBLIGATIONS (INCLUDING FINANCIAL OBLIGATIONS FOR PURCHASES OF
FILES THROUGH THE SITE) THAT MAY RESULT FROM SUCH ACCESS OR USE.
of Password. You are solely responsible for protecting the security
and confidentiality of the password and ID assigned to You. You shall
immediately notify iTRAIN of any unauthorized use of the assigned password
or ID, or any other breach or threatened breach of the Site’s security
of which You are aware. You will be responsible for any activity conducted
under Your assigned password or ID.
7. System Requirements.
Software and Devices. Use of the Site requires Internet access,
audio manager software (such as iTunes®, Napster®, Real Player Rhapsody™,
Musicmatch®) or other software allowing the downloading and storing
of audio and audio-visual files in the MP3 format (the “Software”),
and a compatible player device (the “Device”). All Devices
known at this time to support the MP3 format, including the Zune®,
iPod®, iRiver®, and PSP™, are compatible with the Files. iTRAIN
may, at any time and from time to time, in its sole discretion, modify,
revise, or otherwise change the system requirements for the Site and
the format of the Files, in whole or in part, without notice or liability
for Fees. Internet access, use of the Software, or use of a Device
may result in fees in addition to any fees incurred on the Site. Software
and Devices may require You to obtain updates or upgrades from time
to time. Your ability to use the Site may be affected by the performance
of the Software, the Device, or Your Internet connection. You acknowledge
and agree that it is Your sole responsibility to comply with the system
requirements of Your Software and Device, as in effect from time to
time, and to maintain, update, and upgrade Your Software and Devices,
including the payment of all Internet access, Software, and Device fees
without recourse to iTRAIN.
License. Subject to the terms and conditions of this Agreement, You
are hereby granted a limited, revocable, non-exclusive, non-transferable
license, without the right to sublicense, to access and use the Site
only for displaying the Site on Your Internet browser. Further, Your
access to and use of the Site and the Files purchased from iTRAIN through
the Site is limited to personal, non-commercial purposes only.
Limitations on Use. Except as permitted in the limited license
set forth in paragraph 8(a), above, You may not, in whole or in part,
copy, reproduce, distribute, display, perform, sell, lease, transmit,
or create derivative works from the Site, from Content posted on the
Site, or from Files sold to You or translate, modify, reverse-engineer,
disassemble, or decompile the Site, Content posted on the Site, or Files
sold to You.
Further Limitations. You may not upload to, or distribute or otherwise
publish through, the Site any information or other material that (i)
violates or infringes the rights of any persons, including rights in
copyrights, patents, trademarks, service marks, trade secrets, or other
proprietary rights; (ii) is libelous, threatening, defamatory, obscene,
indecent, pornographic, or could give rise to any civil or criminal
liability under the laws of the United States of America (the “United
States”), any state thereof, or international law; or (iii) includes
any bugs, viruses, worms, trap doors, Trojan horses, “hacks”,
or other harmful code or properties. You agree to indemnify iTRAIN
for any damages which result from any of the foregoing actions.
iTRAIN may remove any information or other material which is uploaded
by you at any time, in its sole and absolute discretion.
(d) Submissions. Subject
or to iTRAIN, including ideas, know-how, techniques, questions, comments,
and suggestions (collectively, “Submissions”) is and will
be treated as nonconfidential and nonproprietary. By submitting or posting
a Submission to the Site or to iTRAIN, You waive any and all rights
You may have in such Submission (except as to matters covered by the
perpetual, and transferable right to use, copy, reproduce, distribute,
display, perform, sell, lease, transmit, or create derivative works
from any such Submission by any means and in any form, and to translate,
modify, reverse-engineer, disassemble, or decompile any such Submission.
All Submissions shall automatically become the sole and exclusive property
of iTRAIN, without compensation to You, and shall not be returned to
9. Availability and Use
of Site. The availability of the Site depends on many factors, including
some factors that are beyond iTRAIN’s control, such as Your connection
to the Internet, the current state of the Internet “backbone”,
and the current operability of the servers on which the Site is maintained.
iTRAIN shall not be liable to You in any way if for any reason You cannot
use the Site.
10. Termination; Effect of
Termination. In addition to any other legal or equitable remedies,
iTRAIN may, without prior notice to You, immediately terminate this
Agreement or revoke any or all of Your rights granted under this Agreement.
You may terminate this Agreement by contacting iTRAIN at cs2@iTRAIN.com.
of Termination. Upon any termination of this Agreement, You
shall immediately cease all access to and use of the Site and iTRAIN
may, in addition to any other legal or equitable remedies, immediately
revoke any passwords and account IDs assigned to You and deny You (and
any persons having access to and use of the Site through You) access
to and use of the Site, in whole or in part. Termination of this Agreement
shall not affect the respective rights and obligations (including payment
obligations) of You or iTRAIN arising before the date of such termination.
The provisions of Sections 2, 6, 7, 8, 9, 10, 11, 15, 16, 20 and 23
shall survive the termination of this Agreement.
11. Intellectual Property.
Applicable Laws. You acknowledge that United States and international
copyright, patent, trademark, and other intellectual and proprietary
laws protect the Site and that any unauthorized access to or use of
the Site may violate such laws.
Marks. All Content and all trademarks, service marks, trade dress,
logos, and tag lines displayed on the Site (collectively, the “Marks”)
are the sole and exclusive property of iTRAIN or its licensors. You
are not granted any right or license, either express or implied, in
any Mark, patent, trade secret, right of publicity, or other intellectual
or proprietary right of iTRAIN or in any of the goodwill associated
with any of the foregoing, except as otherwise provided in the Terms
of Sale with respect to Files that You purchase from iTRAIN. To the
extent that You use any Mark, patent, trade secret, right of publicity,
or other intellectual or proprietary right of iTRAIN, such use and all
goodwill associated therewith shall inure solely and exclusively to
the benefit of iTRAIN.
Removal of Legends. You shall not remove any copyright, trademark,
or other proprietary legend or notice that appears on, in, or as part
of the Site.
Enforcement Notice. So that there is no doubt on the subject,
iTRAIN aggressively enforces its intellectual and proprietary rights
to the fullest extent of applicable law.
12. Notice of and Procedure
for Copyright Infringement.
Infringement Claims. iTRAIN respects the intellectual and proprietary
rights of others. In accordance with the Digital Millennium Copyright
Act, iTRAIN has designated a copyright agent (the “Designated Agent”)
to receive notice of claims of alleged copyright infringement on the
Site. If You believe that any material as to which You hold a copyright
has been used or copied in a way that constitutes an infringement of
such copyright and such infringement is occurring or has occurred on
the Site or on web sites linked to or from the Site, please send the
Designated Agent a notice containing the following information:
(iii) A description
of each copyrighted work that You claim is being infringed upon and
the location where the original or an authorized copy of such work exists
(for example, the URL of web site where such work is lawfully published
or the name, edition, and pages of a book, etc.);
(vi) A statement bearing
Your electronic or physical signature, under penalty of perjury, that
the above information is accurate and that You are the copyright owner
or are authorized to act on behalf of the copyright owner.
Agent. Send the notice containing the above information to the following
Name of Designated Agent: Grace Lazenby
/ Sebastien Reant
Mailing Address: 9903 Santa Monica
Boulevard, Suite 291
Beverly Hills, California 90212
Telephone number: +1 (512) 222-7346 (Note:
Telephone notice is not sufficient.)
E-mail Address: legal@iTRAIN.com
NOTE: THE NOTICE REQUIRED BY
THIS SECTION IS EXCLUSIVELY FOR NOTIFYING ITRAIN THAT A COPYRIGHTED
WORK MAY HAVE BEEN INFRINGED. DO NOT SEND ANY NOTICES OR INQUIRIES UNRELATED
TO ALLEGED COPYRIGHT INFRINGEMENT TO THE DESIGNATED AGENT. SUCH NOTICES
OR INQUIRIES SHOULD INSTEAD BE SENT TO THE E-MAIL ADDRESS OR MAILING
ADDRESS LISTED BELOW IN THE SECTION TITLED “CONTACT INFORMATION”.
To Other Internet Sites. The Site may contain links to Internet sites
owned, operated, or maintained by third parties not under iTRAIN’s
control or associated with it. These links are provided for Your convenience
of reference only. Such links are not and shall not be deemed to be
iTRAIN’s endorsement of any organization, individual, product, or
service associated with the linked site. You assume sole responsibility
and liability for Your use of any such linked site.
14. Links to the Site. You
must obtain iTRAIN’s prior written consent prior to posting any link
to the Site.
15. WARRANTY DISCLAIMER;
HEALTH DISCLAIMER; RELEASE; LIMITATION OF LIABILITY.
DISCLAIMER. ALL CONTENT, SERVICES, AND TRANSACTIONS ARE PROVIDED
ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE SITE MAY INCLUDE
INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. ITRAIN DOES NOT WARRANT
THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE. ITRAIN DISCLAIMS
ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR USE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY,
OR SYSTEM INTEGRATION.
DISCLAIMER, WAIVER AND RELEASE. YOU ARE SPECIFICALLY WARNED AND ADVISED
TO SEEK THE ADVICE OF A PHYSICIAN BEFORE BEGINNING ANY EXERCISE REGIMEN.
iTRAIN IS NOT A SUBSTITUTE FOR PHYSICIAN CONSULTATION OR TREATMENT AND
NOTHING CONTAINED IN THIS WEBSITE SHOULD BE CONSTRUED AS GIVING MEDICAL
ADVICE, DIAGNOSIS, OR INFORMATION. YOU ARE URGED AND ADVISED TO SEEK
THE ADVICE OF A PHYSICIAN BEFORE BEGINNING ANY EXERCISE AND/OR WEIGHT
LOSS EFFORT OR REGIMEN. THIS WEBSITE IS INTENDED FOR USE ONLY BY HEALTHY
ADULT INDIVIDUALS. THE WEBSITE IS NOT INTENDED FOR USE BY MINORS, PREGNANT
WOMEN, OR INDIVIDUALS WITH ANY TYPE OF HEALTH CONDITION. SUCH INDIVIDUALS
ARE SPECIFICALLY WARNED TO SEEK PROFESSIONAL MEDICAL ADVICE PRIOR TO
INITIATING ANY FORM OF EXERCISE AND/OR WEIGHT LOSS EFFORT OR REGIMEN.
YOU AGREE THAT YOU ARE VOLUNTARILY
PARTICIPATING IN THE ACTIVITIES DESCRIBED IN FILES AVAILABLE AT THE
SITE AND VIA USE OF THIS SITE AND ASSUME ALL RISKS OF INJURY, ILLNESS,
OR DEATH. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS WAIVER
AND RELEASE AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
YOU EXPRESSLY AGREE TO RELEASE AND DISCHARGE EACH iTRAIN RELEASEE (AS
DEFINED BELOW) FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION AND YOU AGREE
TO VOLUNTARILY GIVE UP AND IRREVOCABLY WAIVE AND RELEASE ANY RIGHT THAT
YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST ANY iTRAIN RELEASEE
FOR PERSONAL INJURY OR PROPERTY DAMAGE. TO THE EXTENT THAT STATUTE OR
CASE LAW DOES NOT PROHIBIT RELEASES FOR NEGLIGENCE, THIS RELEASE IS
ALSO FOR NEGLIGENCE. IF ANY PORTION OF THIS RELEASE FROM LIABILITY SHALL
BE DEEMED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, THEN THE
REMAINDER OF THIS RELEASE FROM LIABILITY SHALL REMAIN IN FULL FORCE
AND EFFECT AND THE OFFENDING PROVISION OR PROVISIONS SEVERED HERE FROM.
OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER ITRAIN, ITS PARENT, SUBSIDIARIES, OR AFFILIATES, NOR ANY OF
THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS,
EMPLOYEES, OR AGENTS SHALL BE LIABLE FOR PUNITIVE, CONSEQUENTIAL, INCIDENTAL,
EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS
OF PROFITS, REVENUES, BUSINESS, USE, DATA, OR OTHER INTANGIBLES), WHETHER
OR NOT SUCH DAMAGES WERE FORESEEABLE OR ITRAIN HAD BEEN ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITRAIN’S
TOTAL LIABILITY TO YOU FOR ANY DAMAGES (REGARDLESS OF THE FORM OF ACTION,
WHETHER CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE) SHALL
NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID BY YOU
TO ITRAIN FOR THE ONE MONTH PERIOD PRIOR TO THE ACT ALLEGEDLY GIVING
RISE TO ITRAIN’S LIABILITY.
The provisions of this paragraph
shall survive the termination of this Agreement or Your right to use
the Site for any reason.
16. Indemnity. You agree
to indemnify, defend and hold harmless iTRAIN and its licensors and
licensees, and their respective parents, subsidiaries and affiliates,
and their respective officers, directors, shareholders, members, partners,
employees, contractors and agents (each, an "iTrain
Releasee")) from and against any and all claims, liabilities,
expenses (including reasonable attorneys’ fees and costs), and damages
arising out of claims resulting from Your access to or use of the Site,
including claims arising out of information or content submitted to
the Site by You, Your violation of a third party’s intellectual property
or other rights, or any claims alleging facts that if true would constitute
a breach by You of the terms and conditions of this Agreement, the Terms
of Sale, or any Additional Terms. iTRAIN reserves the right to assume
the exclusive defense and control of any matter otherwise subject to
indemnification by You, including in the selection of counsel, and in
such case, You agree to cooperate with iTRAIN’s defense of such claims.
17. Relationship of Parties. You
acknowledge that no joint venture, partnership, employment, or agency
relationship exists between You and iTRAIN as a result of this Agreement
or any use of the Site. You agree not to hold Yourself out as a representative,
agent, or employee of iTRAIN and iTRAIN shall not be liable for any
representation, act, or omission by You to the contrary.
18. Assignment. You shall
not assign or otherwise transfer this Agreement or assign, delegate,
or otherwise transfer any of Your rights, interests, or obligations
under this Agreement. Any such assignment, delegation, or other transfer
shall be void. This Agreement shall inure to the benefit of iTRAIN’s
successors, assigns, and licensees.
19. Injunctive Relief; Remedies.
Injunctive Relief. You agree that iTRAIN’s remedy at law for
any actual or threatened breach of this Agreement would be inadequate
and that iTRAIN shall be entitled to specific performance or injunctive
relief, or both, in addition to any damages that iTRAIN may be legally
entitled to recover, together with reasonable expenses of any form of
dispute resolution, including reasonable attorneys’ fees and costs.
Remedies Cumulative. All rights and remedies granted to
iTRAIN under this Agreement (including under the Terms of Sale, any
and are in addition to all other rights and remedies available to iTRAIN
at law or in equity.
20. Governing Law and Jurisdiction. This
Agreement (including the Terms of Sale, any Additional Terms, and the
United States, without regard to its choice of law principles. You consent
to the jurisdiction and venue of the state courts in Los Angeles County,
California, and the federal courts in the Central District of California
for all disputes arising out of or relating to access to or the use
of the Site; provided, however, that iTRAIN may enforce its rights and
remedies under this Agreement in any appropriate jurisdiction.
(a) EXCLUSIVE REMEDY. YOU AND iTRAIN AGREE THAT THE SOLE AND
EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING
IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SITE AND/OR YOUR
DOWNLOAD OF FILES OR OTHER PRODUCTS SHALL BE FINAL AND BINDING ARBITRATION,
except that: (i) to the extent that either You or ITRAIN has in any
manner infringed upon or violated or threatened to infringe upon or
violate the other party’s patent, copyright, trademark or trade secret
rights, or You have otherwise violated any of the rules set forth herein,
then the parties acknowledge that arbitration is not an adequate remedy
at law and that injunctive or other appropriate relief may be sought;
and (ii) no disputes or claims relating to any transactions You enter
into with a third party may be arbitrated.
(b) Administration. The
arbitration shall be administered by JAMS pursuant to its Comprehensive
Arbitration Rules and Procedures (the “JAMS Rules”). Judgment
on the award may be entered in any court having jurisdiction.
The location of the arbitration shall be in Los Angeles, California,
and the allocation of costs and fees for such arbitration shall be determined
in accordance with such JAMS Rules and shall be subject to the limitations
provided for in the JAMS Rules. If such costs are determined to be excessive
in a consumer dispute, iTRAIN will be responsible for paying all arbitration
fees and arbitrator compensation in excess of what is deemed reasonable.
The arbitrator’s award shall be binding and may be entered as a judgment
in any court of competent jurisdiction.
No Joinder. To the fullest extent permitted by applicable law,
ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING
ANY OTHER CURRENT OR FORMER USER OF THE SITE, AND NO CLASS ARBITRATION
PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action
or proceeding by You related in any way to the Site and/or the Files
or Other Products (including Your visit to or use of the Site and/or
the Files or Other Products) be instituted more than one (1) year after
the cause of action arose.
22. International Access. The
Site can be accessed from countries other than the United States. If
You access and use the Site outside the United States, You are responsible
for complying with Your local laws and regulations.
23. Contact Information. Please
send any questions or comments (including all inquiries unrelated to
copyright infringement) regarding the Site by e-mail to cs2@iTRAIN.com or by regular mail to 9903 Santa Monica
Boulevard, Suite 291, Beverly Hills, California 90212.
24. Reservation of Rights. iTRAIN
reserves to itself any and all rights not expressly granted herein.
25. Construction. When
used in this Agreement (including the Terms of Sale, any Additional
not limiting; (b) “or” is not exclusive; (c) “may not”, “neither
... may”, and the like are prohibitive and not permissive; (d) the
singular includes the plural and vice versa; (e) each of the masculine,
feminine, and neuter genders includes the other genders; (f) “person”
and “third party” mean individual or legal entity; (g) “herein”,
“hereto”, and the like refer to this Agreement, the Terms of Sale,
as a whole and not to a particular section or paragraph hereof or thereof;
and (h) references to sections or paragraphs mean to sections or paragraphs
of this Agreement, the Terms of Sale, any Additional Terms, or the Privacy
Policy where such reference occurs. This Agreement, the Terms of Sale,
to their respective fair meanings and not for or against either iTRAIN
or You as causing the drafting hereof or thereof.
26. Complete Agreement. This
Agreement (including the Terms of Sale, any Additional Terms, and the
with respect to Your access to and use of the Site and purchase of Files
or Products/Services through the Site.