Terms and Conditions of Sale Agreement
(Rev. 11/2008)
iTRAIN LLC, a California limited liability company (“iTRAIN”), thanks you for visiting www.iTRAIN.com
(the “Site”). Please carefully read this Agreement (the “Agreement”) and the Terms and Conditions of
Use Agreement (the “Terms of Use”), before purchasing anything through the Site.
1. Scope of Agreement.
This Agreement is a legally binding agreement between you (“You” or “Your”) and iTRAIN and governs
Your purchase of anything through the Site including any File or other Product/Service (as those
terms are defined below). You agree to comply with all of the terms of this Agreement, the Terms of
Use and all additional terms and conditions governing access to and use of specific areas of the Site
set forth elsewhere on the Site (collectively, the “Additional Terms”). The Terms of Use, Additional
Terms, and iTRAIN’s Privacy Policy (the “Privacy Policy”) are incorporated in and made a part of
this Agreement. Capitalized terms used but not otherwise defined in this Agreement have the meanings
given to them in the Terms of Use.
2. Binding Agreement.
BY PURCHASING ANY FILES OR OTHER PRODUCTS/SERVICES ON THE SITE, YOU UNDERSTAND AND AGREE THAT YOU
ARE DEEMED TO HAVE READ, UNDERSTOOD AND AGREED TO ALL OF THE PROVISIONS OF THIS AGREEMENT AND ALL
OTHER AGREEMENTS, POLICIES AND TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
IF YOU DO NOT UNDERSTAND OR AGREE TO ANYTHING IN THE IMMEDIATELY PRECEDING SENTENCE OR ANY OTHER
PROVISION OF THIS AGREEMENT, YOU SHOULD NOT PURCHASE ANY FILE OR OTHER PRODUCT/SERVICE ON THE
SITE.
3. Pricing, Information, and Ordering.
(a) iTRAIN sells copies of downloadable audio files (each, an “Audio File”) and downloadable
audiovisual files (each, a “Video File”) that contain one (1) or more exercise programs (an Audio
File and a Video File each is referred to as a “File”) designed and presented by iTRAIN’s workout
instructors. iTRAIN may sell other products and services (each, a "Product/Service") from time to
time. iTRAIN offers both: (i) individual Files that may be purchased separately through the A La
Carte Plan; and (ii) various subscription package programs (each, a “Subscription Package”).
Under a Subscription Package, Your payment of the specified flat fee (the “Subscription Payment”)
at the specified time will permit You to download the specified number of Files each month during
the period that your Subscription Package is in effect (the “Subscription Period”).
(b) The Files and Products/Services offered for sale, the Files available under the A La Carte
Plan or any Subscription Package, the structure of each Subscription Package, and prices and
terms of payment are offered by iTRAIN in its sole discretion and are subject to modification by
iTrain from time to time by posting new, modified, or additional offerings, structures, prices or
terms on the Site.
(c) Files purchased separately under the A La Carte Plan currently range in price from US$0.99 to
US$199.99, each as specified on the Site with the description of the File.
(d) Under a Subscription Package, You are provided a specified number of credits (each , a
“Credit”) that may be used during the specified period. One Credit will entitle You to download
one (1) File. Credits are valid for three hundred sixty-five (365) days from the first day of
the month in which they are credited to Your account or until the end of Your Subscription
Period, whichever occurs first. CREDITS ARE NON-REFUNDABLE AND ARE NOT REDEEMABLE FOR CASH.
Fees for Subscription
Packages are payable in advance at the time of subscription. iTRAIN’s current Subscription
Packages are as follows:
(i) The Resolution Package: For US$149.99, You will receive three (3) Credits each month
for twelve (12) months.
(ii) The Unlimited Resolution Package: Starting on 11/26/2008, for US$179.99, You will
receive unlimited Credits each month during a twelve (12) month Subscription Period.
(iii) The Monthly Motivator Package: For US$44.99, You will receive three (3) Credits each
month for three (3) months and an additional three (3) Credits for the fourth month at no
additional charge.
(iv) The Monthly Motivator Special Package: Starting on 11/26/2008, for US$44.99, You
will receive three (3) Credits each month for three (3) months and an additional three (3)
Credits for the fourth month at no additional charge. Beginning with the fifth (5th) month,
your Subscription Package automatically will renew for consecutive monthly Subscription
Periods for US$15.99, for which You will receive three (3) Credits per month.
(e) Prior to purchase, You will be required to choose whether You wish to purchase Files under a
Subscription Package (and, if so, which package) or separate Files under the A La Carte Plan. When
You have used Your Credits, or Your Credits have expired, under a Subscription Package You may
purchase additional Files under the A La Carte Plan. You may check the status of Your Subscription
Package and Your remaining Credits at any time at http://www.iTRAIN.com/plans after You log in to
iTrain.com.
(f) iTRAIN will use its commercially reasonable efforts to fill Your orders but does not guarantee
the accuracy or completeness of any information on or associated with the Site including prices
advertised at locations other than the Site, product images, specifications, availability, and
services displayed on, offered for sale, or sold through the Site. iTRAIN and its vendors and
suppliers each reserve the right to discontinue the sale of any File, Product/Service or
Subscription Package at any time without prior notice to You.
(g) Prices and information on the Site may vary from advertised prices and information located
elsewhere. All prices for Files and Products/Services are payable in United States Dollars, are
valid and effective only within the United States, and do not include sales taxes which, if
applicable, will be added to Your total invoice price. You are solely responsible for the payment
of state and local sales or use taxes that may apply to Your order.
4. Limitations on Subscription Packages.
(a) You may not subscribe to more than a single Subscription Package at the same time.
(b) Currently, the Subscription Packages include Audio Files for downloading and certain Video
files for viewing online only. The Subscription Packages do not include any other Product/Service
such as Gift Certificates or DVDs offered on the Site.
(c) You must be a U.S. resident in order to subscribe for a Subscription Package and/or to
download certain Files.
5. Payments; Subscription Cancellation.
(a) Payments must be made by credit or debit card. iTRAIN currently accepts Visa, MasterCard, and
American Express, but payment methods may change at any time in iTrain's sole discretion. You will
generally be billed for Subscription Packages during the first week of the calendar month that
immediately follows the month during which the Subscription Period begins. iTRAIN may use a
small-charge aggregation system to save credit and debit card processing costs so that small
charges made to the same credit or debit card may be held by iTRAIN or its aggregator until the
total of such charges reaches the billing threshold (generally, up to US$30.00 depending on the
credit card company) and then processed as a single charge. If You subscribe to a Subscription
Package with a Subscription Period of at least one (1) year, You will be billed on a yearly cycle
(approximately every 365 days) beginning on the date You subscribe. Subscription Packages will be
renewed automatically unless You properly cancel Your subscription as provided below. BY
SUBSCRIBING TO A SUBSCRIPTION PACKAGE, YOU AUTHORIZE iTRAIN TO CHARGE THE APPLICABLE RECURRING
SUBSCRIPTION PAYMENT TO YOUR DESIGNATED CREDIT OR DEBIT CARD UNTIL YOU PROPERLY CANCEL YOUR
SUBSCRIPTION.
(b) You may cancel a Subscription Package as follows:
(i) Resolution Packages: You must give written notice of cancellation to iTRAIN at least
thirty (30), but no more than ninety (90), days prior to the end of Your Subscription Period
at http://www.iTRAIN.com/ContactUs.php and follow the notice instructions provided there.
(ii) Monthly Motivator Package: You must give written notice of cancellation to iTRAIN
at least sixty (60), but no more than ninety (90), days prior to the end of Your Subscription
Period at http://www.iTRAIN.com/ContactUs.php and follow the notice instructions provided
there.
(iii) Monthly Motivator Special Package: You must give written notice of cancellation to
iTRAIN at least thirty (30) days prior to the end of Your Subscription Period at
http://www.iTRAIN.com/ContactUs.php and follow the notice instructions provided there.
If You cancel prior to the end of Your Subscription Period, iTRAIN will not refund any remaining
portion of Your Subscription Payment for that Subscription Period.
(c) The purchase of Files under the A La Carte Plan may not be canceled and payments will not be
refunded.
(d) If there is a problem with Your method of payment, iTRAIN may make reasonable efforts to
contact You to resolve the problem. If iTRAIN is unable to charge Your designated credit or debit
card, iTRAIN reserves the right to: (i) immediately suspend and/or terminate Your Subscription
Package or Your registration for the Site, (ii) collect the outstanding amount You owe under the
Subscription Package; and/or (iii) take appropriate legal action against You for breach of this
Agreement. These remedies are not exclusive and iTRAIN does not waive any other remedies
available to it at law or equity.
(e) Gift Certificates (each, a "Gift Certificate”) may be purchased on the Site and redeemed only
for Credits. Gift Certificates are subject to the Gift Certificate Terms of Sale (the “Gift
Terms”). Unless specified thereon, Gift Certificates do not have expiration dates and may only be
used for the purchase of Files under an A La Carte Plan. GIFT CERTIFICATES ARE NOT REFUNDABLE OR
REDEEMABLE FOR CASH AND CANNOT BE RETURNED FOR A CASH REFUND.
6. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY.
(a) WARRANTY DISCLAIMER. ALL FILES AND PRODUCTS/SERVICES ARE SOLD “AS IS” AND ON AN “AS
AVAILABLE” BASIS. ITRAIN DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR USE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY, OR SYSTEM
INTEGRATION. THE SITE AND THE FILES AND PRODUCTS/SERVICES ARE NOT SUBSTITUTES FOR THE ADVICE AND
TREATMENT OF A LICENSED HEALTH CARE PROFESSIONAL. ITRAIN DOES NOT GUARANTEE THAT ACCESS TO THE
SITE OR TO THE FILES WILL BE UNINTERRUPTED AND ERROR FREE, AND ITRAIN MAY SUSPEND OR CANCEL
SERVICE AT ANY TIME WITHOUT NOTICE. YOU ACKNOWLEDGE BY YOUR USE OF FILES AND PRODUCTS/SERVICES
THAT YOUR USE THEREOF AND ANY RELIANCE UPON THEM IS AT YOUR OWN RISK.
(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF
ITRAIN, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, OR AGENTS (EACH, AN "ITRAIN PARTY") 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.
(c) MAXIMUM 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 ACTUALLY PAID
BY YOU TO ITRAIN FOR FILES AND PRODUCTS/SERVICES DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR
TO THE ACT ALLEGEDLY GIVING RISE TO ITRAIN’S LIABILITY.
(d) INDEMNIFICATION. YOU AGREE TO DEFEND AND INDEMNIFY ITRAIN AND THE ITRAIN PARTIES FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT
OF OR RELATED TO YOUR SUE OF THE SITE, OR ANY FILE OR PRODUCT/SERVICE.
7. Usage.
Federal law provides severe civil and criminal penalties for the unauthorized reproduction,
distribution or exhibition of copyrighted materials. Criminal copyright infringement is investigated
by the FBI and may constitute a felony with a minimum penalty of up to five years in prison and/or
$250,000 fine. ALL FILES AND OTHER PRODUCTS/SERVICES, AND THE SITE AND ALL CONTENTS THEREOF, ARE THE
EXCLUSIVE PROPERTY OF ITRAIN (UNLESS OTHERWISE NOTED IN WRITING THEREON) THE COPYRIGHT AND ALL OTHER
RIGHTS TO WHICH ARE OWNED BY ITRAIN.
8. Medical Liability, Waiver and Release.
(a) Not Medical Advice. The instructions and advice contained in any of the Files or
Products/Services are not medical advice. Not all exercises are suited for everyone. Please do not
perform any exercise if feeling strained or uncomfortable. Consult with Your physician before
performing any exercise routine. The creators and producers of, and participants in, any of the Files
and Products/Services do not assume, and shall not have, any liability to You for injury or loss in
connection therewith.
(b) Waiver and Release. BECAUSE PHYSICAL EXERCISE CAN BE STRENUOUS AND SUBJECT TO RISK OF SERIOUS
INJURY, iTRAIN URGES YOU TO OBTAIN A PHYSICAL EXAMINATION FROM A DOCTOR BEFORE USING ANY EXERCISE
EQUIPMENT OR PARTICIPATING IN ANY EXERCISE ACTIVITY. YOU AGREE THAT BY PARTICIPATING IN PHYSICAL
EXERCISE OR TRAINING ACTIVITIES, YOU DO SO ENTIRELY AT YOUR OWN RISK. ANY RECOMMENDATION FOR CHANGES
IN DIET INCLUDING THE USE OF FOOD SUPPLEMENTS, WEIGHT REDUCTION AND/OR BODY BUILDING ENHANCEMENT
PRODUCTS ARE ENTIRELY YOUR RESPONSIBILITY AND YOU SHOULD CONSULT A PHYSICIAN PRIOR TO UNDERGOING ANY
DIETARY OR FOOD SUPPLEMENT CHANGES. YOU AGREE THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE
ACTIVITIES AND 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.
9. Governing Law and Jurisdiction.
This Agreement (including the Terms of Use, any Additional Terms, and the Privacy Policy) is governed
by the laws of the State of California, United States, without regard to its choice of law principles.
Subject to Paragraph 10 below, 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.
10. Arbitration.
(a) 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 ANY FILES OR OTHER
PRODUCTS/SERVICES SHALL BE FINAL AND BINDING ARBITRATION, except that: (i) to the extent that You have
infringed upon or violated or threatened to infringe upon or violate iTrain’s rights or breached this
Agreement, You acknowledge that arbitration will not be an adequate remedy at law and that injunctive
or other appropriate relief may be sought by iTrain in Court in its sole discretion; and (ii) no
dispute or claim relating to any transaction You enter into with a third party may be arbitrated.
(b) 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.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF
USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE
PERMITTED. IN NO EVENT SHALL ANY CLAIM, ACTION OR PROCEEDING BY YOU AGAINST OR INVOLVING ITRAIN BE
INSTITUTED MORE THAN ONE (1) YEAR AFTER YOUR CLAIM FIRST ACCRUED OR YOU FIRST BECAME AWARE OR
REASONABLY SHOULD HAVE BECOME AWARE OF ANY SUCH CLAIM.
12. Complete Agreement.
This Agreement (including under the Terms of Use, any Additional Terms, and the Privacy Policy)
constitutes the entire agreement between You and iTRAIN with respect to its subject matter.
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