Terms of Service
These terms of service were last revised on December 11, 2020.
- "BodySpec" means Absolute Health & Performance, Inc. dba BodySpec, whose principal place of business is at 5847 Uplander Way, Culver City, CA 90230.
- "R&D" means research and development activities performed by BodySpec on user data. These activities may include, among other things, improving our Services and/or offering new products or services to you; performing quality control activities; conducting data analysis that may lead to and/or include commercialization with a third party.
- "Service" or "Services" means BodySpec's services and website (including but not limited to text, graphics, images, and other material and information) as accessed from time to time by the user, regardless if the user is in connection with an account or not.
- "Personal Information" is information that can be used to identify you, either alone or in combination with other information. BodySpec collects and stores the following types of Personal Information:
- "Registration Information" is the information you provide about yourself when registering for and/or purchasing our Services (e.g. name, email, address, user ID and password, and payment information).
- "Health Information" is information regarding your body composition, RMR, or other metrics collected through your DEXA scan, other assessment tests, or other services performed with BodySpec.
- "Self-Reported Information" is all information about yourself, including your disease conditions, other health-related information, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your BodySpec account or while using BodySpec's Services in general.
- "User Content" is all information, data, text, software, music, audio, photographs, graphics, video, messages, or other materials - other than Health Information and Self-Reported Information-generated by users of BodySpec and transmitted, whether publicly or privately, to or through BodySpec.
- "Web Behavior Information" is information on how you use the BodySpec website (e.g. browser type, domains, page views) collected through log files, cookies, and web beacon technology.
- "Aggregated Health Information" is Health and Self-Reported Information that has been stripped of Registration Information and combined with data from a number of other users sufficient to minimize the possibility of exposing individual-level information while still providing scientific evidence.
2. Acceptance of Terms
Your use of BodySpec's Services (excluding any services provided by BodySpec under a separate agreement) is subject to the terms of the legal agreement between you and BodySpec set forth in these Terms of Service ("TOS"). Except as specified herein, these TOS apply to any use of the Services, including but not limited to a) undergoing a BodySpec DEXA scan or other service, b) creating and using a free BodySpec account without undergoing a BodySpec DEXA scan or other service. In order to use the Services, you must first agree to the TOS. You may not use the Services if you do not accept the TOS. You can accept the TOS by (1) clicking to accept or agree to the TOS, where this option is made available to you by BodySpec for any Service; or by (2) actually using the Services. In this case, you acknowledge and agree that BodySpec will treat your use of the Services as acceptance of the TOS from that point onwards. In addition, when using particular BodySpec Services, you shall be subject to any guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. BodySpec also may offer other services from time to time that are governed by different terms of service.
a. You may not use the Services and may not accept the TOS if (1) you are not of legal age to form a binding contract with BodySpec, or (2) you are a person barred from receiving the Services under the laws of the jurisdiction in which you are resident or from which you use the Services.
b. In addition to the conditions above, if you contribute or otherwise provide your own Health Information, you must be eighteen (18) years of age or older to agree to these TOS on behalf of yourself or those for whom you have legal authority to agree.
c. If your use of the Services includes creating a BodySpec account, without participating in a BodySpec DEXA scan or other service, or otherwise providing Health Information, you must be thirteen (13) years of age or older to use the Services and accept the TOS.
4. Description of the Services
The Services include access to the BodySpec public website and personal health assessment services, including the collection and analysis of your body composition and other health metrics, other health assessments including but not limited to resting metabolic heart rate testing, and advisory services including but not limited to nutrition coaching. Unless explicitly stated otherwise, each new feature that augments or enhances the current Service shall be subject to the TOS. You acknowledge and agree that the Services are provided "AS-IS" and are based on the current technology in use by BodySpec at the time of the purchase or viewing.
BodySpec is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which BodySpec provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that BodySpec may stop (permanently or temporarily) providing some Services (or any features within the Services) to you or to users generally at BodySpec's sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform BodySpec when you stop using the Services unless you are requesting closure of your account. BodySpec assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms.
In order to use the Services, you must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access. You are solely responsible for paying such fees. In addition, you must provide all equipment necessary to make such Internet connection, including a computer and modem or other access device. You are solely responsible for providing such equipment. You acknowledge and agree that while BodySpec may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by BodySpec at any time, at BodySpec's discretion.
5. Risks and Considerations Regarding BodySpec Services
Once you obtain your Health Information, the knowledge is irrevocable. You should not assume that any information we may be able to provide to you will be welcome or positive. You may also learn information about yourself that you do not anticipate.
The scan process may result in errors. While we make every effort to ensure the accuracy and precision of our assessments, including daily re-calibration and maintenance, we cannot guarantee that your assessments results are entirely error-proof. Factors outside our control, such as excess movement while on the scanner, may contribute to scanning errors resulting in inaccuracy.
You may experience discomfort as part of receiving Services from BodySpec. BodySpec's Services may be delivered within or near our scanning vehicles. BodySpec makes every effort to ensure a welcoming and comfortable environment. However, if you are prone to conditions such as claustrophobia, or have physical conditions such as back pain or severely limited mobility, you may experience physical or mental discomfort for the duration of a BodySpec service.
Certain tests administered by BodySpec may expose your person to radiation in the form of x-rays. BodySpec has extensively researched and tested the radiation levels emitted by its dual x-ray absorptiometry scanners used to collect body composition information, to determine the safety of offering such a test. However, you should understand during the scan, your body will be exposed to some amount of x-ray radiation. You may wish to discuss this level of radiation and associated risks with a health professional or radiologist.
You should not change your health behaviors solely on the basis of information from BodySpec. BodySpec provides Health Information to you and may answer general fitness and nutrition-related questions on the basis of your Health Information and your Self-Reported Information. However, BodySpec's advice is for informational purposes only, and may not take into consideration relevant factors, such as injuries, diseases, or other personal limitations that you may have not disclosed. Accordingly, acting upon information provided by BodySpec is solely at your own risk. You may wish to discuss your Health Information with a physician or other health care provider before you act upon the Health Information resulting from BodySpec Services.
Health Information you share with others could be used against your interests. You should be careful about sharing your Health Information with others. Furthermore, Health Information that you choose to share with your physician or other health care provider may become part of your medical record and through that route be accessible to other health care providers and/or insurance companies in the future. Health Information that you share with family, friends or employers may be used against your interests. If you are asked by an insurance company whether you have learned Health Information about health conditions and you do not disclose this to them, this may be considered to be fraud.
BodySpec Services are for research, informational, and educational use only. We do not provide medical advice. The Health Information provided by BodySpec is for research, informational, and educational use only. The Services are not intended to be used by the customer for any diagnostic purpose and are not a substitute for professional medical advice. You should always seek the advice of your physician or other health care provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health. Reliance on any information provided by BodySpec, BodySpec employees, others appearing on our website at the invitation of BodySpec, or other visitors to our website is solely at your own risk.
While we are licensed in the states where we currently maintain operations, not all jurisdictions require our Services to be subject to license. Therefore, we are not universally licensed by all state, federal, or international authorities for testing conducted for health and fitness-related purposes. In addition, there are certain jurisdictions in which we do not offer our Services because we do not have required licenses.
6. User Representations
By accessing BodySpec Services, you agree to, acknowledge, and represent as follows:
a. You understand that information you learn from BodySpec is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of medical and clinical information. You understand that BodySpec services are intended for research, informational, and educational purposes only.
b. You represent that you are eighteen (18) years of age or older if you are participating in any of BodySpec Services to collect Health Information, or you are thirteen (13) years of age or older and have permission from an adult parent or guardian. Minors under eighteen (18) years of age will be required to furnish a consent form signed by a parent or guardian.
c. You are aware that some of the information you receive may provoke strong emotion.
d. You take responsibility for all possible consequences resulting from your sharing with others access to your Health Information and your Self-Reported Information.
e. You understand that all your Personal Information will be stored in BodySpec databases and will be processed in accordance with the BodySpec Privacy Statement.
f. Waiver of Property Rights: You understand that by providing any Health Information or Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by BodySpec or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Health Information or Self-Reported Information.
You agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations. In case of breach of any one of these representations BodySpec has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify BodySpec and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
7. Account Creation, Customer Account, Password, and Security Obligations
In consideration of your use of the Services, you agree to: (a) provide true, accurate, current, and complete Registration Information about yourself as prompted by the Service; and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any Registration Information that is untrue, inaccurate, not current, or incomplete, or if BodySpec has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, BodySpec has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
After you have purchased our Service, you will create a password and account designation. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. If you allow third parties to access BodySpec's website through your username and password, you will defend and indemnify BodySpec and its affiliates against any liability, costs, or damages, including attorney fees, arising out of claims or suits by such third parties based upon or relating to such access and use. You agree to (a) immediately notify BodySpec of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. BodySpec cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
8. BodySpec Privacy Statement and Disclosure of Information
In order to use the Services, you must first acknowledge and agree to the Privacy Statement. You may not use the Services if you do not accept the Privacy Statement. By using any of BodySpec's Services, or by creating an account on the BodySpec website, you acknowledge and agree to the Privacy Statement.
You acknowledge and agree that BodySpec has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have in terms of usage of the BodySpec Services, website, or other systems. We may include your information in the Aggregate Information that we publish on our blog, or use as reference, or share with third parties. BodySpec will never release your individual-level Health Information and/or Self-Reported Information to any third party without asking for and receiving your explicit consent to do so, unless required by law. Further, you acknowledge and agree that BodySpec is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that BodySpec may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the BodySpec TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of BodySpec, its employees, its users, its clients, and the public. In such event we will notify you through the contact information you have provided to us in advance, unless doing so would violate the law or a court order. You understand that the technical processing and transmission of the Services, including your Personal Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, or devices. Finally, BodySpec may, in its sole discretion, restrict access to the website for any reason.
Please refer to our Privacy Statement to read about data protection related to your information.
9. Limited License
You acknowledge that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that you, and not BodySpec, are entirely responsible for all User Content that you upload, post, email, or otherwise transmit via the Service.
You acknowledge that the Services content presented to you as part of the Services, whether original BodySpec Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by BodySpec and/or the sponsors who provide that content to BodySpec (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by BodySpec or by the owners of that content, in a separate agreement.
BodySpec grants you a Limited License to copy and distribute free of charge, for non-commercial purposes only, any of the Services content with the exception of individual Health and Self-Reported Information that does not belong to you, and any other content marked as not subject to this Limited License on the website, provided you: (i) provide the Services content as it appears on the BodySpec website with no changes including but not limited to presenting selections which might tend to misrepresent the substance of the Services content; (ii) include the following attribution on the first page of any materials you distribute: (c) Absolute Health & Performance, Inc. dba BodySpec 2014-2017. All rights reserved; distributed pursuant to a Limited License from BodySpec; (iii) agree you have no right to offer anyone else any further right with respect to this Services content. Aside from the Limited License provided in this paragraph, you may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by BodySpec or by the owners of that content, in a separate agreement.
10. Customer Conduct - Unlawful and Prohibited Use
As a condition of your use of the Services, you warrant to BodySpec that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party's use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. Furthermore you agree not to use the Services to:
(1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status;
(2) impersonate any person or entity, including, but not limited to, anyone affiliated with BodySpec, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(3) add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(4) "stalk" or otherwise harass another;
(5) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(6) use any information received through the Services to attempt to identify other customers;
(7) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner;
(8) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of BodySpec or any other party;
(9) harm minors in any way;
(10) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages;
(11) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law;
(12) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(13) use manual or automated software, devices, scripts robots, other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the site, unless explicitly permitted by BodySpec;
(14) engage in "framing," "mirroring," or otherwise simulating the appearance or function of BodySpec's website;
(15) attempt to or actually override any security component of BodySpec web services;
(16) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
(17) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Service or have been communicated to you by anyone affiliated with BodySpec; or
(18) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
You acknowledge and agree that you are solely responsible for (and that BodySpec has no responsibility to you or to any third party for) any breach of your obligations under the TOS and for the consequences (including any loss or damage which BodySpec may suffer) of any such breach. In case of breach of any one of these agreements BodySpec has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify BodySpec and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
If you violate the terms of this Section and/or BodySpec has a reasonable ground to suspect that you have violated the terms of this Section, BodySpec has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
11. Material Posted Through The Service
BodySpec will not, at all times, control any of the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such non-BodySpec content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will BodySpec be liable in any way for any non-BodySpec content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services.
You acknowledge that BodySpec and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, BodySpec and its designees shall have the right to remove any content that violates the TOS or is deemed by BodySpec, in its sole discretion, to be otherwise objectionable. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
12. Material Provided to BodySpec - Your Proprietary Rights
User Content. BodySpec does not claim ownership of the User Content you provide to BodySpec (including feedback and suggestions) or post, upload, input, or submit to the Service. Unless otherwise specified, you retain copyright and any other rights you already hold over User Content that you create and submit, post, or display on or through the Services. However, by submitting, posting, or displaying User Content, you give BodySpec, its affiliated companies, sublicensees and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any User Content that you submit, post, or display on or through the Services. You acknowledge and agree that this license includes a right for BodySpec to make such User Content available to other companies, organizations, or individuals with whom BodySpec has relationships, and to use such User Content in connection with the provision of those services.
You understand that BodySpec, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media. You acknowledge and agree that this license shall permit BodySpec to take these actions. You represent and warrant to BodySpec that you have all the rights, power, and authority necessary to grant the above license.
Health and/or Self-Reported Information. Disclosure of individual-level Health and/or Self-Reported Information to third parties will not occur without explicit consent, unless required by law. Note that BodySpec cannot control any further distribution of Health and/or Self-Reported Information that you share publicly on the BodySpec website. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that BodySpec has no obligation to do so on your behalf.
You understand that you should not expect any financial benefit from BodySpec as a result of having your Health Information made available to you; or, as provided in our Privacy Statement and Terms of Service, shared with or included in Aggregated Health and Self-Reported Information shared with partners, including commercial partners.
Waiver of Property Rights. As stated above, you understand that by accessing or providing any Health or Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by BodySpec or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Health Information or Self-Reported Information.
You agree to defend and hold BodySpec, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content you submit, post to, or transmit through the Service; your use of the Service; your connection to the Service; your violation of the TOS; or your violation of any rights of another.
If you have made use of BodySpec services to obtain Health Information, you will defend and hold harmless BodySpec, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from analyzing your Health Information, which is disclosed to you consistent with our Privacy Statement or results from any third-party add-ons to tools we provide. In addition, if you choose to provide your Health and/or Self-Reported Information to third parties - whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes - you agree to defend and hold harmless BodySpec, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Health and/or Self-Reported Information.
14. No Resale of Service
Unless otherwise agreed in a separate agreement between you and BodySpec, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Service, use of the Service, or access to the Service.
15. General Practices Regarding Use and Storage
You acknowledge that BodySpec may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that Personal Information and Services content will be retained by the Service, the maximum disk space that will be allotted on BodySpec's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge and agree that BodySpec has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of Health Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that BodySpec reserves the right to change these general practices and limits in its sole discretion.
16. Modifications to Service
BodySpec reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You acknowledge and agree that (i) modifications may result in a delay in computations for some of the BodySpec features or Services, and (ii) BodySpec shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
You acknowledge that BodySpec may offer different or additional technologies or features to collect and/or interpret Health Information in the future and that your initial purchase of the Service does not entitle you to any different or additional technologies or features for collection or interpretation of your Health Information without fee, and that you will have to pay additional fees in order to have your Health Information collected, processed, and/or interpreted using any future or additional technologies or features.
The TOS will continue to apply until terminated by either you or BodySpec as set out in this Section.
If you want to terminate your legal agreement with BodySpec, you may do so by notifying BodySpec at any time in writing, which will entail closing your accounts for all of the Services that you use. Your notice should be sent, in writing, to BodySpec address, which is set out at the beginning of the TOS, or online via e-mail to email@example.com. If you provide notice online, BodySpec will send you an email asking you to confirm your request, and your notice will be effective following receipt of a second email confirmation from you.
BodySpec may at any time, terminate its legal agreement with you (and in conjunction therewith, your password and account(s)) if: (1) you have breached any provision of the TOS (or have acted in manner which shows that you do not intend to, or are unable to comply with, the provisions of the TOS); (2) BodySpec is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (3) BodySpec is transitioning to no longer providing the Services to users in the country or state in which you reside or from which you use the Services; or (5) the provision of the Services to you by BodySpec is, in BodySpec's opinion, no longer commercially viable.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. You acknowledge and agree that BodySpec shall not be liable to you or any third party for any termination of your access to the Services.
18. Survival of Terms
When the TOS come to an end, all of the legal rights, obligations, and liabilities that you and BodySpec have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Prerequisites); 4.(Description of the Services); 5.(Risks and Considerations Regarding BodySpec Services); 6.(User Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(BodySpec Privacy Statement); 9.(Limited License); 10. (Customer Conduct - Unlawful and Prohibited Use); 11. (Material Posted through the Service); 12.(Material Provided to BodySpec - Your Proprietary Rights); 13.(Indemnity); 14.(No resale of Services);17.(Termination); 18.(Survival of Terms); 19.(Dealings with Information Providers and Listed Resources); 20.(Hyperlinks and BodySpec Website); 21.(BodySpec Proprietary Rights); 22.(DISCLAIMER OF WARRANTIES); 23.(LIMITATION OF LIABILITY); 24.(Notice); 26.(Violation or Suspected Violation of TOS); and 27.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.
19. Dealings with Information Providers and Listed Resources
Your correspondence or business dealings with-or participation in promotions of-information providers, vendors, and/or resources found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such information provider or resource. You acknowledge and agree that BodySpec shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Service.
20. Hyperlinks and the BodySpec Website
The Service provides, and third parties may provide, links to other sites and resources on the Internet. Because BodySpec has no control over such sites and resources, you acknowledge and agree that BodySpec is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that BodySpec 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 use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
21. BodySpec Proprietary Rights
You acknowledge and agree that BodySpec (or BodySpec's licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights (including but not limited to patents) which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by BodySpec and that you shall not disclose such information without BodySpec's prior written consent.
You further acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by BodySpec, you agree not to-and not to permit anyone else to-modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services, excluding software that may be made available by end-users through the Services, is the copyrighted work of BodySpec and/or its suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
Absolute Health & Performance, Inc., BodySpec, and other BodySpec logos and product and service names are trademarks of BodySpec and these marks together with any other BodySpec trade names, service marks, logos, domain names, and other distinctive brand features are the "BodySpec Marks". Unless you have agreed otherwise in writing with BodySpec, nothing in the TOS gives you a right to use any BodySpec Marks and you agree not to display, or use in any manner, BodySpec Marks.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services.
Unless you have been expressly authorized to do so in writing by BodySpec, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.
22. Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BODYSPEC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) BODYSPEC MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BODYSPEC OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. BODYSPEC DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, BODYSPEC SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
23. Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BODYSPEC SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BODYSPEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
Attn: Chief Operating Officer
5847 Uplander Way
Culver City, CA 90230
Additionally, BodySpec accepts service of process at this address. Any notices that you provide to us without compliance with this section shall have no legal effect.
25. Changes to the Terms of Service
BodySpec may make changes to the TOS from time to time. When these changes are made, BodySpec will make a new copy of the TOS available on its website and any new additional terms will be made available to you from within, or through, the affected Services.
You acknowledge and agree that if you use the Services after the date on which the TOS have changed, BodySpec will treat your use as acceptance of the updated TOS.
26. Violation or Suspected Violation of Terms of Service
If you violate the terms of these TOS and/or BodySpec has a reasonable ground to suspect that you have violated the terms of these TOS, BodySpec has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
Entire Agreement. The TOS constitute the entire agreement between you and BodySpec and govern your use of the Services, superseding any prior agreements between you and BodySpec on this subject. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software
Applicable law and arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with BodySpec arising out of or relating to the Agreement ("Disputes") shall be governed by California law regardless of your country of origin or where you access BodySpec, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Los Angeles, California, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
Waiver. The failure of BodySpec to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
Term for cause of action. 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 Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Admissibility of printed version. A printed version of this agreement and of any notice given in electronic form shall be admissible in 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 originally generated and maintained in printed form.
Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.
Amendments. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.bodyspec.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 18 (Termination).
Assignment. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, BodySpec for any third party that assumes our rights and obligations under this Agreement.