Legal

PRIVACY POLICY

Last Updated March 2015

This policy explains our privacy practices for BodyLabs.com and services provided by Body Labs, Inc. (“Body Labs“, “us“, “we“, and “our“).

1. COLLECTION AND USE OF PERSONAL INFORMATION

In the course of using the Service, we may collect personal information that can be used to contact or identify you (“Personal Information“).

1.1 Provided by You. When you register an account, we may collect some personal information, such as your name, phone number, credit card or other billing information, email address and home or business postal addresses. We retain information on your behalf, such as measurements, 3D body scans, and other data and messages that you store using your Account. If you provide us with feedback or contact us via e-mail, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply. When you participate in one of our surveys, we may collect additional profile information. When you post information or other content on our Site, the information contained will be stored on our servers and other users will may be able to see it. We also collect other types of Personal Data that you provide to us voluntarily, such as your operating system and version, browser type, and other requested information if you contact us via e-mail regarding support for the Services. We may also collect Personal Data, such as at other points in our Site that state that Personal Data is being collected.

1.2 Collected with Technology. To make our Site and Services more useful to you, our servers (which may be hosted by a third party service provider) collect information from you, including your browser type, operating system, Internet Protocol (IP) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, and/or a date/time stamp for your visit. We also may use cookies and URL information to gather information regarding the date and time of your visit and the information for which you searched and which you viewed. “Cookies” are small pieces of information that a website sends to your computer’s hard drive while you are viewing a web site. We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on our Site. Persistent Cookies can be removed by following Internet browser help file directions. You can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all aspects of the Service. As of the date this policy went into effect, we use Google Analytics. To learn more about the privacy policy of Google Analytics, click here, and to learn how to opt out of that service click here(link).

1.3 Collected with Technology. You may also ask us to import your contacts by giving us access to your third party services (for example, your email account) or to use your social networking information if you give us access to your account on social network connection services.

1.4 How we use your information. Personal Information is or may be used: (i) to provide and improve our Service, (ii) to administer your use of the Service, (iii) to better understand your needs and interests, (iv) to personalize and improve your experience, and (v) to provide or offer software updates and product announcements. If you no longer wish to receive communications from us, please follow the “unsubscribe” instructions provided in any of those communications, or update your account settings information.

We may create Anonymous Data records from Personal Data by excluding or obfuscating information (such as your name or 3D body scan) that make the data personally identifiable to you. We use this Anonymous Data to analyze request and usage patterns so that we may enhance the content of our Services, improve Site navigation, and imporve our underlying technology and Services. Body Labs reserves the right to use Anonymous Data for any purpose and disclose Anonymous Data to third parties in its sole discretion.

2. INFORMATION SHARING AND DISCLOSURE

2.1 Information Disclosed to Third Party Service Providers. We do not sell your personal information to third parties. We may, however, share your Personal Data with third party service providers to: provide you with the Services that we offer you through our Site; to conduct quality assurance testing; to facilitate creation of accounts; to provide technical support; and/or to provide other services to Body Labs. These third party service providers are required not to use your Personal Data other than to provide the services requested by Body Labs.

2.2 Acquisitions. If another company acquires our company, business, or our assets, that company will possess the Personal Data collected by us and will assume the rights and obligations regarding your Personal Data as described in this Privacy Policy.

2.3 Compliance with Laws and Law Enforcement Requests. Body Labs may release your personal information to a third-party in order comply with a subpoena or other similar legal procedure, or when we believe in good faith that such disclosure is necessary to comply with the law; prevent imminent physical harm or financial loss; or investigate or take action regarding illegal activities, suspected fraud, or violations of Body Labs’s Terms of Use. We may disclose personally identifiable information to parties in compliance with our Intellectual Property Policy, as we in our sole discretion believe necessary or appropriate in connection with an investigation of fraud, intellectual property infringement, piracy, or other unlawful activity. In such events, Body Labs may disclose name, address, country, phone number, email address and company name.

3. DATA RETENTION

Body Labs will retain your information for as long as your account is active or as needed to provide you services, and reserves the right to maintain Anonymous Data beyond the existence of your account. If you no longer want Body Labs to use your information to provide you services, you may close your account on the account settings page. Body Labs will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.

4. CHILDREN

We do not knowingly collect personal, non-Anonymous Data, information from children under 13. If we learn that we have collected the personal information of a child under 13 we will take steps to delete the information as soon as possible.

5. PROTECTION OF PERSONAL INFORMATION/SECURITY

The security of your information is important to us. When you enter sensitive information (such as a credit card number) on our order forms, we encrypt the transmission of that information using secure socket layer technology (SSL).

We follow generally accepted standards to protect the information submitted to us, both during transmission and once we receive it. We also require you to enter a password to access your Account information. Please do not disclose your Account password to unauthorized people. No method of electronic transmission or storage is 100% secure. Therefore, we cannot guarantee its absolute security.

6. CONTACT INFORMATION

If you have any questions regarding the use of your personal data, please let us know and we will do our best to address your concerns. If you have any questions or comments regarding this Privacy Policy, please contact us at info@bodylabs.com.

7. PRIVACY POLICY CHANGES

Body Labs reserves the right to modify this privacy statement at any time, so please review it periodically. We’ll communicate changes by posting a notice on the site. If we make material changes to this policy you will be notified here, by email, or other places Body Labs deems appropriate.

ANY QUESTIONS OR COMMENTS RELATING TO YOUR USE OF BODYKIT MAY DIRECTED TO US AT INFO@BODYLABS.COM.

CROWDSHAPING TERMS OF SERVICE

Last Updated: August 15, 2016

Welcome!

We’re thrilled you’ve decided to use our products and services, all of which we refer to simply as the “Services.”

These Terms of Service (the “Terms”) are the rules that govern our relationship with you. These Terms form a legally binding contract between you, Body Labs, Inc.(when we say “we” or “us”, we mean Body Labs, Inc.). Please read them carefully.
By using the Services, you agree to the Terms. Of course, if you don’t agree with them, then don’t use the Services.

ARBITRATION NOTICE: WE WANT TO LET YOU KNOW UP FRONT THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE A LITTLE LATER ON. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, WE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND US EACH WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

  1. Who Can Use the Services
    No one under 18 is allowed to use the Services. We may offer additional Services with additional terms that may require you to be even older to use them. So please read all terms carefully.By using the Services, you state that:
  • You can form a binding contract with us;
  • You are not a person who is barred from receiving the Services under the laws of the United States or any other applicable jurisdiction–meaning that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition; and
  • You will comply with these Terms and all applicable local, state, national, and international laws, rules, and regulations.

It is not permitted to use the Services on behalf of a business or some other entity, or on behalf of the U.S. Government.

  • Rights We Grant You
    We grant you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Services. This license is for the sole purpose of letting you use and enjoy the Service’s benefits in a way that these Terms and our usage policies, such as our Community Guidelines, allow.Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.You may not copy, modify, distribute, sell, or lease any part of our Services, nor may you reverse engineer or attempt to extract the source code of that software, unless applicable laws prohibit these restrictions or you have our written permission to do so.
  • Rights You Grant Us
    Many of our Services let you create, upload, post, send, receive, and store content. When you do that, you retain whatever ownership rights in that content you had to begin with. But you grant us a license to use that content. How broad that license is depends on which Services you use and the Settings you have selected.For CrowdShaping, you grant us and our research partners a worldwide, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that content. This license is for the limited purpose of operating, developing, providing, promoting, and improving the Services and researching and developing new ones.Because CrowdShaping requires humans to view your content to help us convert photos to 3D body models, the license you grant us for content submitted to those Services is broader. In addition to the rights you grant us in connection with other Services, you also grant us a perpetual license to create derivative works from, promote, exhibit, broadcast, syndicate, publicly perform, and publicly display content submitted to CrowdShaping or any other crowd-sourced Services in any form and in any and all media or distribution methods (now known or later developed). To the extent it’s necessary, you also grant us and our business partners the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice solely in CrowdShaping or other crowd-sourced content that you appear in, create, upload, post, or send. This means, among other things, that you will not be entitled to any compensation from us or our business partners if your name, likeness, or voice is conveyed through CrowdShaping or other crowd-sourced Services.While we’re not required to do so, we may access, review, screen, and delete your content at any time and for any reason, including if we think your content violates these Terms. You alone though remain responsible for the content you create, upload, post, send, or store through the Service.We always love to hear from our users. But if you volunteer feedback or suggestions, just know that we can use your ideas without compensating you.
  • The Content of Others
    Much of the content on our Services is produced by users, publishers, and other third parties. Whether that content is posted publicly or sent privately, the content is the sole responsibility of the person or organization that submitted it. Although we reserve the right to review all content that appears on the Services and to remove any content that violates these Terms, we do not necessarily review all of it. So we cannot—and do not—take responsibility for any content that others provide through the Services.Through these Terms and our Community Guidelines, we make clear that we do not want the Services put to bad uses. But because we do not review all content, we cannot guarantee that content on the Services will always conform to our Terms or Guidelines.
  • Privacy
    Your privacy matters to us. You can learn how we handle your information when you use our Services by reading our privacy policy. We encourage you to give the privacy policy a careful look because, by using our Services, you agree that we can collect, use, and transfer your information consistent with that policy.
  • Respecting Other People’s RightsWe respect the rights of others. And so should you. You therefore may not upload, post, send, or store content that:
    • violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual-property right;
    • bullies, harasses, or intimidates; or
    • defames any person.

    You must also respect our rights. These Terms do not grant you any right to:

    • use branding, logos, designs, photographs, videos, or any other materials used in our Services;
    • copy, archive, download, upload, distribute, syndicate, broadcast, perform, display, make available, or otherwise use any portion of the Services or the content on the Services except as set forth in these Terms;
    • use the Services or any content on the Services for any commercial purposes without our consent.

    In short: You may not use the Services or the content on the Services in ways that are not authorized by these Terms. Nor may you help or enable anyone else in doing so.

  • Respecting Copyright
    We honor the requirements set forth in the Digital Millennium Copyright Act. We therefore take reasonable steps to expeditiously remove from our Services any infringing material that we become aware of. And if we become aware that one of our users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate that user’s account.We make it easy for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please file a notice with us:
    Body Labs, Inc.
    Attn: General Counsel
    37 East 18th Street, 8th Floor
    New York, New York 10003
    email: legal@bodylabs.comIf you file a notice, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:

 

  • contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
  • identify the copyrighted work claimed to have been infringed;
  • identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to let us locate the material;
  • provide your contact information, including your address, telephone number, and an email address;
  • provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
  • Safety
    We try hard to keep our Services a safe place for all users. But we can’t guarantee it. That’s where you come in. By using the Services, you agree that:
  • You will not use the Services for any purpose that is illegal or prohibited in these Terms.
  • You will not use any robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract other user’s information.
  • You will not use or develop any third-party applications that interact with the Services or other users’ content or information without our written consent.
  • You will not use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services.
  • You will not use or attempt to use another user’s account, username, or password without their permission.
  • You will not solicit login credentials from another user.
  • You will not post content that contains pornography, graphic violence, threats, hate speech, or incitements to violence.
  • You will not upload viruses or other malicious code or otherwise compromise the security of the Services.
  • You will not attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that you are not authorized to access.
  • You will not probe, scan, or test the vulnerability of our Services or any system or network.
  • You will not encourage or promote any activity that violates these Terms.
  • Data Charges and Mobile Phones
    You are responsible for any mobile charges that you may incur for using our Services, including text-messaging and data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Services.
  • Modifying the Services and Termination
    We often update our Services and create new ones. That means we may add or remove features, products, or functionalities, and we may also suspend or stop the Services altogether. We may take any of these actions at any time, and when we do, we may not provide you with any notice beforehand.
    We may terminate these Terms with you at any time, for any reason, and without advanced notice. That means that we may stop providing you with any Services, or impose new or additional limits on your ability to use the Services.
    Regardless of who terminates these Terms, both you and us continue to be bound by Sections 3, 6, 9, 11-19 of the Terms.
  • Indemnity
    You agree, to the extent permitted under applicable law, to indemnify, defend, and hold harmless Body Labs, Inc., and each of our directors, officers, employees, and affiliates from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to: (a) your access to or use of the Services; (b) your content; and (c) your breach of these Terms.
  • Disclaimers
    We try to keep the Services up and running and free of annoyances. But we make no promises that we will succeed.
    THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE EXTENT PERMITTED BY APPLICABLE LAW WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE BODY LABS, INC. ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.
    BODY LABS, INC. TAKES NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH BODY LABS, INC. WILL BE RESPONSIBLE FOR.
  • Limitation of Liability
    TO THE MAXIMUM EXTENT PERMITTED BY LAW, BODY LABS, INC. AND OUR MANAGING MEMBERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR MULTIPLE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON OR THROUGH THE SERVICES; OR (C) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR CONTENT, EVEN IF BODY LABS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BODY LABS, INC.’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED THE GREATER OF $100 USD OR THE AMOUNT YOU PAID BODY LABS, INC., IF ANY, IN THE LAST 12 MONTHS.
    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
  • Arbitration, Class Waiver, and Jury Waiver
    PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH BODY LABS, INC., AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
  1. Applicability of Arbitration Agreement. All claims and disputes arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and us are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
  2. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
  3. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
  4. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Body Labs, Inc. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Body Labs, Inc.
  5. Waiver of Jury Trial. YOU AND BODY LABS, INC. WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Body Labs, Inc. are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Body Labs, Inc. over whether to vacate or enforce an arbitration award, YOU AND BODY LABS, INC. WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
  6. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 15.
  7. Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
  8. Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
  9. Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor us can force the other to arbitrate. To opt out, you must notify Body Labs, Inc. in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address and the email address you used to set up your Body Labs, Inc. account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to this address: Body Labs, Inc., ATTN: Arbitration Opt-out, 37 East 18th Street, 8th Floor, New York, NY 10003.
  10. Small Claims Court. Notwithstanding the foregoing, either you or we may bring an individual action in small claims court.
  11. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with us.
  • Exclusive Venue
    To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and us agree that all claims and disputes arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the United States District Court for the District of New York. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the Supreme Court of New York, County of New York. You and we consent to the personal jurisdiction of both courts.
  • Choice of Law
    Except to the extent they are preempted by U.S. federal law, the laws of New York, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.
  • Severability
    If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.
  • Additional Terms for Specific Services
    Given the breadth of our Services, we sometimes need to craft additional terms and conditions for specific Services. Those additional terms and conditions, which will be available with the relevant Services, then become part of your agreement with us if you use those Services.
  • Final Terms
    • These Terms make up the entire agreement between you and us, and supersede any prior agreements.
    • These Terms do not create or confer any third-party beneficiary rights.
    • If we do not enforce a provision in these Terms, it will not be considered a waiver.
    • We reserve all rights not expressly granted to you.
    • You may not transfer any of your rights or obligations under these Terms without our consent.
    • These Terms were written in English and to the extent a translated version of these Terms conflict with the English version, the English version will control.

BODY LABS BLUE TERMS OF SERVICE

Last Updated July 1, 2016

  1. 1. Acceptance of Terms
    1. IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE BLUE SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
    2. a. Welcome to the Blue service, website or application (collectively, the “Service”). Your use of the Service is subject to these Terms of Service and Body Labs’ Privacy Policy (collectively, the “Terms of Service” or “Agreement”). These Terms of Service are a legal agreement between You and Body Labs, Inc. (“Body Labs”), a Delaware Corporation, for use of the Body Labs Service. “You” refers to any individual who creates an account on the Service, or, if the Service is being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then “You” refers to such entity. If You are accessing the Service on behalf of Your employer, you represent and warrant that You have the authority to agree to these Terms of Service on its behalf. If You do not agree with the terms of this Agreement, do not use the Service. Body Labs reserves the right to update and change the Agreement from time to time without notice or acceptance by You. The Agreement will also be applicable to the use of the Service on a trial basis. By using the Service, You signify Your irrevocable acceptance of this Agreement. The website, application programming interface (“API”) and any downloadable software associated with the Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
  2. 2. Description of Service
    1. The Service includes, and is limited to, a service, web site, or application that allows You access to and use of a single Blue Account. “Blue” referred to herein means an online tool that outputs a set of measurements based on a combination of input from consumers (“Users”) and calculations performed by Body Labs. The Service may contain information, data, text, photographs, videos, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service (collectively, “Content”). Subject to these Terms of Service, Body Labs grants to You and each user of the Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally and on your company websites or mobile applications) Content solely for purposes of using the Service. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Service is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. For the purposes of these Terms of Service, “Content” also includes all User Content (as defined below).
    2. An “Account” referred to herein means the account provided to you by Body Labs.
    3. A “User Account” referred to herein means an online login and associated account provided by Body Labs, where Users may store, create, update, share, and publish information about the shape of their bodies (“User Content”). To the extent that the Service integrates with User Accounts you shall only use User Content as authorized by a User.
    4. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring precision greater than the standard error as published from time-to-time by Body Labs.
    5. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the service may include certain communications from Body Labs, such as service announcements, administrative messages, etc., and that these communications are considered part of the Service and You will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by Body Labs for use in accessing the Service. Body Labs will provide the Service in accordance with this Agreement. Body Labs may at its sole discretion modify the features of the Service from time to time without prior notice.
    6. You understand and agree that Body Labs may amend, modify, change, and cease distribution or production of the Services at any time. You hereby agree and acknowledge that failure to implement and integrate any changes to the Service may cause your Applications to lose complete or partial functionality with the Services, and you are entirely responsible for implementing and integrating any updates. You shall indemnify and hold Body Labs and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of or resulting from loss of your Applications’ functionality due to your failure to implement and integrate updates and update your Application with respect thereto.
  3. 3. Registration.
    In order to use the Service, You must have a valid Account. To acquire an Account for the Service, You must provide Body Labs with an electronic mail address and other information (“Registration Data”). You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account. You agree to (a) immediately notify Body Labs of any unauthorized use of Your Account or any other breach of security. Body Labs cannot and will not be liable for any loss or damage arising from Your failure to comply with this section. In consideration of use of the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service’s registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Body Labs assumes no duty to verify such information. If You provide any information that is untrue, inaccurate, not current or incomplete, or Body Labs has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Body Labs 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). Body Labs may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation.
  4. 4. License.
    The Service is licensed, not sold to you. Subject to the terms and conditions of this Agreement, Body Labs hereby grants you a nonexclusive, nontransferable, terminable, revocable, non-sublicensable and limited license to use the Service so long as your Account is in good standing and has not been terminated, solely for the uses permitted herein. Any use not specified in this Agreement is expressly prohibited. Note that all commercial use of the Services will be via a Body Labs-issued API. You agree that we or our designee may use such keys to key to track usage and to ensure your compliance with this Agreement.
  5. 5. Billing/Payment Terms
    1. You shall pay fees (described below) to Body Labs. Upon registration, You will provide Body Labs with the necessary billing information (“Billing Data”).
    2. You must provide current, complete and accurate Billing Data. You must promptly update all Billing Data to keep Your Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and You must promptly notify Body Labs if Your Payment Method is changed (for example, for loss or theft) or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your name or password. If You fail to provide any of the foregoing information, You agree that Body Labs may continue charging You for any use of Blue under your Billing Data unless You have terminated Your Account as set forth herein.
    3. If you provide Body Labs with Billing Data, the payment method You provide as part of the Billing Data will be automatically and immediately billed on the first Business Day of each Month. You agree that Body Labs may charge to Your credit card (or other payment method) all amounts due and owing for Your Account on that monthly basis or upon cancellation (see “Termination, Breach, Suspension and Cancellation”). Body Labs will contact You via electronic mail to alert You upon each charge. Body Labs may change prices at any time without prior notice, but will endeavor to provide reasonable advance notice via the Body Labs website and/or electronic mail. You agree that in the event Body Labs is unable to collect the fees owed to Body Labs for Your Account, Body Labs may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Body Labs in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
    4. As long as Your Account remains active and in good standing, You will be charged even if You never use the service. You may, however, cancel Your Account at any time.
  6. 6. Termination, Breach, Suspension and Cancellation
    If Your payment is overdue, Boyd Labs will disable Your access to Blue. Body Labs may, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, Your Account will be disabled and You may not be granted access to Your Account or any files or other Content (including Your User Content) contained in Your Account, and Body Labs may delete any associated User Content, although residual copies of information may remain in our system for some time for back-up purposes.
  7. 7. Proprietary/Intellectual Property Rights.
    Body Labs and/or its suppliers, as applicable, retain ownership of all proprietary rights in Blue, the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of Body Labs’ or its suppliers’ copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. You may not reverse engineer, disassemble, decompile or otherwise manipulate the Service or otherwise reduce to human readable form any software associated with the Service. You will not publish or otherwise use any source code examples or documentation (including tutorial graphics, and electronic and print documentation) other than as a guide for how to implement the Services on your websites and applications. Body Labs may collect data resulting from Your use of the Service (the “Data”). Body Labs shall have the right to use the Data on a de-identified, aggregated basis, for any purposes Body Labs deems fit. If the Data is not capable of being owned pursuant to applicable law, then you hereby grant to Body Labs a worldwide, perpetual, irrevocable, royalty-free, fully sublicensable and non-exclusive right and license to use, access, store, copy, download, print, sell, perform, display, execute, reproduce and modify (including to create improvements and derivative works of), distribute, and otherwise use and exploit the Data on a de-identified, aggregated basis for any purpose Body Labs deems fit. For purposes of clarity, de-identified does not mean that any portion of an image, photo, video, scan, or body model will be cropped, obfuscated, or modified to remove such individual for the exploitation of Body Labs’ rights with respect to the Data.
  8. 8. Export Restrictions.
    You acknowledge that the Service, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
  9. 9. Injunctive Relief.
    You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to Body Labs, its affiliates, suppliers and any other party authorized by Body Labs to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Body Labs, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
  10. 10. Proper Use
    1. Body Labs does not claim ownership over any Content. However, by uploading any content to the Service, You agree that Body Labs may store and display such content as necessary in connection with the Service.
    2. You understand that all User Content is the sole responsibility of the person from which such User Content originated. Body Labs does not control the User Content input via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content.
    3. Under no circumstances will Body Labs be liable in any way for any Content, including, but not limited to, for 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 content posted, transmitted or otherwise made available via the Service. You 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. In this regard, You acknowledge that You may not reasonably rely on any Content created by Body Labs or submitted to Blue. You acknowledge and agree that Body Labs may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
      1. comply with legal process;
      2. enforce the Agreement;
      3. respond to claims that any Content violates the rights of third-parties; or
      4. protect the rights, property, or personal safety of Body Labs, its users and the public.
    4. If Body Labs discloses Content to comply with legal process or respond to claims that any Content violates the rights of third-parties, to the extent permitted by law, regulation or legal process, Body Labs agrees to provide You with prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
    5. You understand that the technical processing and transmission of the Service, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
    6. Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Body Labs’ sole discretion as to what action should be taken. You agree that You will not:
      1. use APIs and components other than in the manner prescribed by Body Labs or use or call any unpublished or private APIs or components. “API(s)” means the Body Labs-documented application programming interface(s) contained in Blue.
      2. work around any technical limitations in the Service, or interfere with or compromise the system integrity or security, or decipher any transmissions to or from our servers, or take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
      3. upload, post 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;
      4. 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;
      5. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
      6. exceed the scope of the Service that You have signed up for.
    7. If You are reported to be in violation with the letter or spirit of these terms, Body Labs retains the right to terminate such account at any time without further warning.
  11. 11. General Practices Regarding Use and Storage.
    1. You agree that Body Labs has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Service. You acknowledge that Body Labs may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. Body Labs retains the right to create limits on use and storage at our sole discretion at any time with or without notice.
    2. You agree that You will not or permit anyone else to:
      1. upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
      2. use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., in connection with the Service, in a manner that sends more request messages to the Body Labs servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser;
      3. use the Service, in whole or in part, for development of, or distribution in, any malicious, deceptive, defamatory, otherwise tortious or unlawful programs;
      4. include any part of the Service in, or use the Service for, any programs designed or intended for a high risk use;
      5. interfere with or disrupt our Service or networks connected to our website or through the use of our Service, or disobey any requirements, procedures, policies or regulations of networks connected to our website or through the use of our Service, or otherwise interfere with our Service in any way, including through the use of JavaScript, ActiveX or other coding;
      6. copy, reproduce, alter, modify, or publicly display any information displayed on the Service (except for Your User Content), or create derivative works (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Body Labs or any other third party, except with the prior written consent of Body Labs or the appropriate third party;
      7. copy, duplicate or otherwise reproduce the Service, in whole or in part or use any component of the Service to design or create any software program, hardware or system or content, in whole or in part, with features or functions similar to the features or functions of any of the Service;
      8. except with Body Labs’ express written consent, loan, lease, sell, sublicense, resell, distribute, assign or otherwise transfer, pledge, mortgage, or otherwise encumber the Service, in whole or in part, to any third party including an assignment by operation of law;
      9. use the Service, in whole or in part, on a service bureau or timesharing basis or application service provider basis or for the benefit of any third parties;
      10. remove, obscure or alter any patent, copyright, trademark or other proprietary rights notice(s) on the Service or its components; or
      11. except with Body Labs’ express written consent, use Body Labs’ trademarks, including without limitation Body Labs, in your Applications’ names or in a way that suggests your Applications come from or are endorsed by Body Labs.
  12. 12. Software Defect Reporting.
    If you find software defects in Blue or its components, you may report them to support@bodylabs.com. Body Labs will evaluate and, at its sole discretion, may address them in a future update. Body Labs shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate any material, information, ideas, concepts, know-how, techniques, or other communication you transmit to us by any means (“Suggestions“). Body Labs shall have no obligations with respect to Suggestions. Body Labs and Body Labs’ designees will be free to copy, disclose, distribute, incorporate and otherwise use Suggestions and all data, images, sounds, text, and other things embodied therein for any and all commercial and noncommercial purposes.
  13. 13. Third Party Software.
    Certain third party software may be included with the Service and is subject to additional terms and conditions imposed by Body Labs’ third party licensor(s). This Agreement in no way supplements or detracts from any term or conditions of such third party license agreements, which may impose additional limitation on your use of the Service. You hereby agree to any such terms and conditions, which are incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein upon distribution of updates to the Service. You are responsible for regularly reviewing the third party terms and conditions to determine the status of, and for complying with, all third party software license terms and conditions.
  14. 14. Content of The Service.
    Body Labs reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Body Labs, its users and the public. Body Labs will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
  15. 15. International Use.
    Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside. You shall not, nor shall you permit third parties to, access or cause to be accessed the Services in any country prohibited by the United States Export Administration Act and the regulations thereunder or otherwise use the Services, in whole or in part, in violation of Applicable Laws or for any unlawful purpose. Further, you shall indemnify and hold Body Labs and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of any claim that the Services, or any portion thereof, was exported or otherwise shipped, transported, accessed, or used by or through you in violation of any law or used for unlawful purposes.
  16. 16. No Resale of the Service.
    You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Body Labs.
  17. 17. Your Representations and Warranties.
    You represent and warrant that (a) all of the information provided by You to Body Labs to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
  18. 18. No Warranties or Representations by Body Labs Inc.
    You understand and agree that the Service is provided “as is” and on an “as available” basis and “with all faults,” and Body Labs, its affiliates, suppliers and Resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of your data on Body Labs’ servers. Body Labs, its affiliates, suppliers and Resellers make no warranty or representation regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet any user’s requirements, will be error-free, or that access to the Service will be uninterrupted. Use of the Service is at Your sole risk. You will be solely responsible for any damage to You resulting from the use of the Service. The entire risk arising out of use, security or performance of the Service remains with You. No oral or written information or advice given by Body Labs or its authorized representatives shall create a warranty or in any way increase the scope of Body Labs’ obligations. The Service utilizes complex software technology that may not always function as intended. If You choose to use the Service, You assume all risk that your use of the Services causes any harm or loss, including to the end users of Your applications, and You hereby agree to waive all claims against Body Labs and its affiliates related to such use (including without limitation any claim that the Service, or any component thereof, is defective). Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Body Labs, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
  19. 19. Indemnity.
    You agree to indemnify, defend and hold harmless Body Labs, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of these Terms of Service or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
  20. 20. Modifications to Service.
    Body Labs reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that Body Labs shall not be liable to You or to any third party for any modification, suspension, termination or discontinuance of the Service.
  21. 21. No Agency.
    No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Body Labs is intended or created by these Terms of Service.
  22. 22. Limitation of Liability.
    In no event will Body Labs or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if Body Labs, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, Body Labs’, its affiliates’, suppliers’ and Resellers’ maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the greater of (i) $10 and (ii) the amount actually paid by You for the Service (if any) in the previous twelve (12) months.
  23. 23 Waiver and Severability.
    Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
  24. 24. Statute of Limitations.
    You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of Body Labs services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
  25. 25. Choice of Law and Forum.
    This Agreement shall be governed by and construed under the laws of the State of New York, USA, as applied to agreements entered into and to be performed in New York by New York residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving the Borough of Manhattan, in the City of New York, in the State of New York, USA. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement.
  26. 26. Dispute Resolution.
    Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, except to the extent specifically prohibited by applicable law in your jurisdiction, shall be settled by final and binding arbitration to be conducted in New York, New York, USA in accordance with the Commercial Rules of the American Arbitration Association (“Rules”) and shall be heard by one arbitrator appointed in accordance with the Rules and to be mutually agreed to by the parties. If the parties fail to mutually agree upon an arbitrator within 30 days of submitting the dispute to arbitration, the American Arbitration Association shall appoint the arbitrator. The loser shall bear the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but you, may be joined or combined together, without the prior written consent of Body Labs. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, any breach of this Agreement could cause Body Labs irreparable harm and you agree that Body Labs has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding your violation or threatened violation of this Agreement. The parties specifically agree that, in the event that there is a dispute under this Agreement no such dispute shall be resolved by jury trial. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL FOR ANY DISPUTES ARISING UNDER THIS AGREEMENT, INCLUDING DISPUTES AS TO WHETHER ATTORNEY’S FEES OR OTHER DAMAGES ARE DUE HEREUNDER. Unless, and only to the extent, prohibited by law in your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including without limitation any correspondence, discovery, submissions, filings, pleadings, oral pleadings and arguments, and orders or judgments.
  27. 27. Entire Agreement/General Provisions.This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Body Labs may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of Body Labs upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Body Labs, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Service. All notices or other correspondence to Body Labs under this Agreement must be sent to the following electronic mail address for such purpose: legal@bodylabs.com or the following physical address:
    • Body Labs, Inc.
      37 East 18th Street, 8th Floor
      New York, NY 10003
      Attention: Legal Department
  28. 28. U.S. Government Restricted Rights.Blue is Commercial Computer Software, and was developed solely at private expense. Use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government is subject to restrictions as set forth in Commercial Computer SDK — Restricted Rights clause at FAR 52.227-19, subsections (c)(1) and (2), as proscribed by FAR 27.405(b)(2), or the restrictions set forth in this license agreement pursuant to DFAR 227.7202-3(a), whichever is applicable. Copyright, Body Labs 2013-2016. Partially unpublished – rights reserved under the Copyright Laws of the United States.

BODYKIT LICENSE AGREEMENT

Last Updated March 2015

IMPORTANT NOTICE: BODY LABS IS WILLING TO LICENSE BODYKIT TO YOU ONLY IF YOU ACCEPT THE TERMS AND CONDITIONS IN THIS AGREEMENT. This Agreement includes an arbitration clause, disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by you, in Sections 3(c) and (e), 6, 9, 11, 13 and 16. Please review those sections (and all other terms) carefully. This BODYKIT LICENSE AGREEMENT (“Agreement” or “Terms and Conditions“) is a legal agreement between Body Labs, Inc. (“Body Labs“, “us“, “we“, or “our“) and you, individually if you are agreeing to it in your own capacity, or you, a legal entity for which an account was set up under which this Agreement was accessed (in each case “you” or “your“). By createing an acocunt to use BodyKit, you accept the terms and conditions of this Agreement and acknowledge: (a) that you have read and understood this Agreement; and (b) that this Agreement has the same force and effect as an agreement signed with original signatures. You warrant that you have full authority to accept and perform this Agreement.

1. SCOPE

  • This Agreement applies to BodyKit, and the included APIs and components, hosted by Body Labs and accessible to you through the Internet subject and pursuant to the terms of this Agreement, as well as all Distributable Code, Documentation, Example Code and any other components relating to your use thereof (as further defined below, “BodyKit”). It also applies to any Updates for BodyKit, unless other terms accompany those items. If so, those terms apply.
  • If you are entering into this Agreement for evaluation purposes, then your continued use of BodyKit beyond the Evaluation Period shall be subject to the payment of fees through the functionality of our website, but the terms of this Agreement will continue to govern your use of BodyKit.

2. DEFINITIONS

The following terms shall have the meanings set forth next to them when used in this Agreement.

  • BodyKit” represents the overarching set of APIs and embeddable components used for performing various tasks, as well as the following components:
    • Distributable Code” which is the core binary code that you are permitted to distribute AS IS, without any configuration or modification, solely in your Applications;
    • Documentation” which is the tutorial graphics, and electronic and print documentation explaining the “how to” of developing your Application so it is compatible with BodyKit;
    • Example Code” which is the source code examples of how to develop your Application and headers and interfaces to the Distributable Code that can be used to enable the Applications to be compatible with BodyKit; and
    • any and all other components included on or accessed through Body Labs and all Updates to any of the foregoing.
  • Application” means the software program(s) and/or website(s) which (i) are designed, developed, and tested by you to be compatible with BodyKit, (ii) may contain Distributable Code and derivative code based on examples and APIs provided by us through the Example Code, (iii) is branded under your own trademark and brand, and (iv) complies with the terms and conditions of this Agreement, including the Application Requirements. Application includes all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software programs, websites, or mobile apps.
  • Application Requirements” means the requirements specified by Body Labs from time to time, including without limitation the terms set forth in Section 3(c), from time to time.
  • Term” means, as applicable to you, the date upon which you agree to the terms of this Agreement until the expiration of the period for which you have paid us for Use of BodyKit through separate functionality on our site (such payment being referred to as the “Fees”), unless your usage falls into the free tier, whereby you still agree to the terms of this agreement, but are not required to pay any fee.

3. LICENSE GRANT; RESTRICTIONS ON USE

BodyKit is licensed, not sold to you. Subject to the terms and conditions of this Agreement, Body Labs hereby grants you a nonexclusive, nontransferable, terminable, revocable, non-sublicensable and limited license to use BodyKit during the Term, solely for the purpose of developing Applications. Any use not specified in this Agreement is expressly prohibited. Note that the Distributable Code may be binary watermarked through the use of an API key to track use. You agree that we or our designee may use such keys to ensure your compliance with this Agreement. At all times during your Use of BodyKit, you hereby agree to maintain an internet connection through which Body Labs can monitor your use of BodyKits contained in BodyKit for compliance herewith.

  • Definition of Use. “Use” means: (i) for BodyKit, to embed such APIs and components in your Applications in order to evaluate Body Labs’ technology accessed and used through BodyKit; (ii) for the Distributable Code, to copy such code, and include and distribute such copies solely in Applications. For clarity, Distributable Code may not be modified; (iii) for the Example Code, to copy, modify, and distribute the Example Code and modifications thereof solely in Applications; and/or (iv) for the Documentation, to copy the Documentation solely as necessary for your Use of the rest of BodyKit as permitted herein.
  • Confidential Information. BodyKit and any other information and materials provided by Body Labs or its licensors to you under this Agreement, as well as any information relating to BodyKit, including without limitation any errors or bugs discovered in BodyKit, all Suggestions, the terms and conditions of this Agreement, your relationship with Body Labs, and all issues and information regarding the operation of BodyKit, are the confidential and proprietary information (“Confidential Information”) of Body Labs and its licensors. You shall and shall ensure that your personnel shall: (i) protect and safeguard the confidentiality of all such Confidential Information in strict confidence with at least the same degree of care as you would protect your own sensitive information, but in no event with less than a reasonable degree of care; (ii) not use Body Labs’ Confidential Information, or permit it to be accessed or used, for any purpose other than the Use or otherwise in any manner to Body Labs’ detriment; (iii) not disclose, make available or permit others to make available, any Confidential Information to any person or entity, except to your personnel who (A) need to know the Confidential Information to assist you, or act on your behalf, in relation to the Use, (B) are informed in writing by you of the confidential nature of the Confidential Information, and (C) are subject to written confidentiality duties or obligations to you that are no less restrictive than the terms and conditions of this Agreement; (iv) immediately notify Body Labs of any unauthorized use or disclosure of Confidential Information or other breaches of this Agreement by you or your personnel of which you have knowledge; (v) fully cooperate with Body Labs in any effort undertaken by Body Labs to enforce its rights related to any such unauthorized use or disclosure; (vi) be responsible for any breach of this Agreement caused by any of your personnel; and (vii) not file a patent application or provoke interference with any patent application which Body Labs has filed or will file or amend any claim in any pending patent application to expand the claim to read on, cover or dominate any invention (whether or not patentable) disclosed or suggested in Confidential Information. Without limiting in any way the foregoing, you may also be subject to other confidentiality obligations set forth in a written confidentiality or nondisclosure agreement between you and Body Labs. Except as required by applicable federal, state or local law or regulation, the term “Confidential Information” as used in this Agreement shall not include information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement or act or omission by you or any of your representatives; (b) at the time of disclosure is, or thereafter becomes, available to you on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information to you by any legal, fiduciary, or contractual obligation; (c) was known by you or in your possession, as established by documentary evidence, prior to being disclosed by or on behalf of Body Labs pursuant to this Agreement without breach of any obligation; or (d) was or is independently developed by you, as established by documentary evidence, without reference to or use of, in whole or in part, any of Body Labs’ Confidential Information.
  • Application Requirements. All Applications must comply with the following criteria and requirements, as may be modified by Body Labs from time to time:
    • You agree to comply with all of the terms and conditions of this Agreement with respect to all Applications.
    • You are solely responsible for all costs and expenses associated with developing the Applications and their future use, including any legal claims arising out of any person or entity’s use of such Application.
    • You agree that your development, marketing, sales, and distribution of your Applications shall be in compliance with all applicable laws, rules, regulations, and any generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries and all applicable privacy and data collection laws and regulations) (“Applicable Laws”). To the extent required by law, you are solely responsible for obtaining or filing any approval, clearance, registration, permit, or other regulatory authorization and shall comply with the requirements of such authorization.
    • BodyKit utilizes complex software technology that may not always function as intended. If you choose to use BodyKit, you assume all risk that your use of your Applications, BodyKit causes any harm or loss, including to the end users of your Applications, and you hereby agree to waive all claims against Body Labs and its affiliates related to such use (including without limitation any claim that BodyKit, or any component thereof, is defective) and to indemnify and hold Body Labs and its licensors harmless from and against such claims and any and all losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) relating thereto.
    • Applications may only use Published APIs and components in the manner prescribed by Body Labs and must not use or call any unpublished or private APIs or components. “Published API(s)” means the Body Labs-documented application programming interface(s) contained in BodyKit.
    • Without Body Labs’ prior written approval, an Application may not provide, unlock or enable additional features or functionality not otherwise allowed under the terms and conditions of this Agreement.
  • Restrictions on Use. All rights not granted in this Agreement are reserved to Body Labs. Without limiting the generality of the foregoing, you shall not, and you shall not cause or permit anyone to: (i) copy, duplicate or otherwise reproduce BodyKit, in whole or in part, except as expressly permitted in subsection (c); (ii) modify or create derivative works of BodyKit except as expressly permitted herein; (iii) work around any technical limitations in BodyKit, or interfere with or compromise the system integrity or security, or decipher any transmissions to or from our servers, or take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iv) reverse engineer, disassemble, decompile or otherwise manipulate BodyKit, in whole or in part, to obtain the source code to any parts of BodyKit not otherwise provided by us in source code format (unless required by law for interoperability); (v) loan, lease, sell, sublicense, resell, distribute, assign or otherwise transfer, pledge, mortgage, or otherwise encumber BodyKit, in whole or in part, to any third party including an assignment by operation of law, except for the distribution of Applications as expressly permitted herein; (vi) use BodyKit, in whole or in part, on a service bureau or timesharing basis or application service provider basis or for the benefit of any third parties; (vii) remove, obscure or alter any patent, copyright, trademark or other proprietary rights notice(s) on BodyKit or its components; (viii) except with Body Labs’ express written consent, use Body Labs’ trademarks, including without limitation Body Labs, in your Applications’ names or in a way that suggests your Applications come from or are endorsed by Body Labs; (ix) use any component of BodyKit to design or create any software program, hardware or system or content, in whole or in part, with features or functions similar to the features or functions of any of BodyKit; (x) include any part of BodyKit in, or use BodyKit or any Applications for, any programs designed or intended for a high risk use; (xi) use BodyKit, in whole or in part, for development of, or distribution in, any malicious, deceptive, defamatory, otherwise tortious or unlawful programs, or to gather personally identifiable information; (xii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., in connection with BodyKit, in a manner that sends more request messages to the Body Labs servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; and (xiii) send or store viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs in connection with use of BodyKit, in whole or in part, or the Applications, or which could damage, destroy, or adversely affect other software, firmware, hardware, data, systems, services, or networks. You shall take no action that may compromise Body Labs’ personal or intellectual property rights, but instead shall take all reasonable actions required to safeguard such rights.
  • Compliance with Law. You shall not, nor shall you permit third parties to, access or cause to be accessed BodyKit in any country prohibited by the United States Export Administration Act and the regulations thereunder or otherwise use BodyKit, in whole or in part, in violation of Applicable Laws or for any unlawful purpose. Further, you shall indemnify and hold Body Labs and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of any claim that BodyKit, or any portion thereof, was exported or otherwise shipped, transported, accessed, or used by or through you in violation of Applicable Laws or used for unlawful purposes.
  • Third Party Software. Certain third party software may be included with BodyKit and is subject to additional terms and conditions imposed by Body Labs’ third party licensor(s), and this Agreement in no way supplements or detracts from any term or conditions of such third party license agreements, which may impose additional limitation on your use of BodyKit. You hereby agree to any such terms and conditions, which are incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein upon distribution of Updates. You are responsible for regularly reviewing the third party terms and conditions to determine the status of, and for complying with, all third party software license terms and conditions.

4. LICENSE GRANT; RESTRICTIONS ON USE

BodyKit is licensed, not sold to you. Subject to the terms and conditions of this Agreement, Body Labs hereby grants you a nonexclusive, nontransferable, terminable, revocable, non-sublicensable and limited license to use BodyKit during the Term, solely for the purpose of developing Applications. Any use not specified in this Agreement is expressly prohibited. Note that the Distributable Code may be binary watermarked through the use of an API key to track use. You agree that we or our designee may use such keys to ensure your compliance with this Agreement. At all times during your Use of BodyKit, you hereby agree to maintain an internet connection through which Body Labs can monitor your use of BodyKits contained in BodyKit for compliance herewith.

5. SOFTWARE DEFECT REPORTING

If you find software defects in BodyKit or its components, you agree to report them to info@bodylabs.com. Body Labs will evaluate and, at its sole discretion, may address them in a future Update. Body Labs shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate any material, information, ideas, concepts, know-how, techniques, or other communication you transmit to us by any means (“Suggestions“). Body Labs shall have no obligations with respect to Suggestions. Body Labs and Body Labs’ designees will be free to copy, disclose, distribute, incorporate and otherwise use Suggestions and all data, images, sounds, text, and other things embodied therein for any and all commercial and noncommercial purposes.

6. UPDATES

You understand and agree that Body Labs may amend, modify, change, and cease distribution or production of BodyKit at any time. You understand that Body Labs is not obligated to provide you with upgrades, updates, or future versions of BodyKit (“Updates”) under this Agreement. However, if Body Labs does provide you with any Updates, you agree that in all circumstances you shall promptly implement and integrate the Updates into your Applications upon your receipt of notice of the Update from Body Labs. All Updates shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such Updates. You shall routinely update your contact information provided to Body Labs upon registration in order to be eligible to receive Updates. You hereby agree and acknowledge that failure to implement and integrate the Updates may cause your Applications to lose complete or partial functionality with BodyKit, and you are entirely responsible for implementing and integrating the Updates. You shall indemnify and hold Body Labs and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of or resulting from loss of your Applications’ functionality due to your failure to implement and integrate Updates and update your Application with respect thereto.

7. OWNERSHIP

All right, title and interest in and to BodyKit and its components, including ownership of all intellectual property rights therein and thereto, shall remain at all times in Body Labs and its licensors. BodyKit is protected by copyright law and international treaty provisions. At any time during your or your end user’s use of BodyKit, Body Labs may collect data resulting from such use, and shall, and hereby does, own any such data collected and processed by Body Labs resulting from such use, and may use such data on a de-identified, aggregated basis, for any purposes Body Labs deems fit. If such data is not capable of being owned pursuant to applicable law, then you hereby grant to Body Labs a worldwide, perpetual, irrevocable, royalty-free, fully sublicensable and non-exclusive right and license to use, access, store, copy, download, print, sell, perform, display, execute, reproduce and modify (including to create improvements and derivative works of), distribute, and otherwise use and exploit such data on a de-identified, aggregated basis for any purpose Body Labs deems fit. For purposes of clarity, de-identified does not mean that any portion of an image, photo, video, scan, or body model will be cropped, obfuscated, or modified to remove such individual for the exploitation of Body Labs’ rights with respect to such data.

8. TERMINATION

This Agreement shall automatically terminate if you fail to comply with any of the terms or conditions of this Agreement, and, if curable, such failure remains uncured for a period of 15 days after written notice from Body Labs. This Agreement shall also automatically terminate upon the expiration of the Term, but your obligations hereunder shall survive any termination or expiration until your use of BodyKit ends. A breach of Section 3 (License Grant; Restrictions on Use) is deemed an incurable breach. Upon any termination of a license or this Agreement, you must: (a) cease all use of BodyKit; (b) destroy any and all components of BodyKit remaining on your system, in whole or in part, in all forms and formats; and (c) provide Body Labs with written certification that all copies of BodyKit or it’s components, whether partial or complete, have been destroyed. The obligations of confidentiality, non-use and non-disclosure in Section 3(b) shall survive expiration or termination of this Agreement for any reason. Additionally, the provisions of Sections 2, 3(c), 3(d), the license in 5, indemnification obligations in 3(c), 3(e), 6 and 13, and 7 through 17 (including this Section 8) shall survive the expiration or termination of this Agreement for any reason.

9. BODY LABS DISCLAIMER

BODYKIT IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND “WITH ALL FAULTS,” WITHOUT ANY TECHNICAL SUPPORT OR WARRANTY OF ANY KIND FROM BODY LABS. YOU ASSUME ALL RISKS THAT BODYKIT IS SUITABLE OR ACCURATE FOR YOUR NEEDS AND YOUR USE OF BODYKIT IS AT YOUR OWN DISCRETION AND RISK. BODY LABS AND ITS LICENSORS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES FOR BODYKIT INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. BODY LABS DOES NOT WARRANT THAT BODYKIT IS VIRUS FREE OR ERROR FREE, THAT ITS USE WILL BE UNINTERRUPTED, THAT ITS USE WILL NOT BE REPLACED, THAT USE OF BODYKIT WILL ENSURE FUNCTIONALITY OF YOUR APPLICATIONS AFTER FUTURE UPDATES ARE MADE AVAILABLE, OR THAT THE INFORMATION CONTAINED IN BODYKIT IS CORRECT OR WILL MEET YOUR REQUIREMENTS.

10. EXCLUSIVE REMEDY

If you are dissatisfied with BodyKit (including without limitation this Agreement), your sole and exclusive remedy is to terminate your use of BodyKit and this Agreement in accordance with Section 8 hereof.

11. LIMITATION OF LIABILITY

  • IN NO EVENT SHALL BODY LABS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, TREBLE OR PUNITIVE DAMAGES OR OTHER SIMILAR DAMAGES (SUCH AS LOST PROFITS, LOSS OF USE OR REVENUE, DATA CORRUPTION, COSTS OF DATA RECONSTRUCTION, BUSINESS INTERRUPTION OR LOSS OF DATA) IN CONNECTION WITH THIS AGREEMENT OR USE OR PERFORMANCE OF BODYKIT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL BODY LABS HAVE ANY LIABILITY FOR OR ARISING OUT OF ANY DERIVATIVE WORKS OF BODYKIT OR ITS COMPONENTS, INCLUDING YOUR APPLICATIONS.
  • IN NO EVENT SHALL BODY LABS OR ITS LICENSORS BE LIABLE TO YOU UNDER THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE GREATER OF (i) US $10.00 AND (ii) THE FEES ACTUALLY PAID BY YOU FOR THE 12 MONTHS IMMEDIATELY PRECEDING YOUR AGGREGATED CLAIM(S).
  • THE FOREGOING APPLY WHETHER THE CLAIM IS BASED UPON CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY) OR ANY OTHER THEORIES OF LIABILITY AND WHETHER OR NOT BODY LABS HAD ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND BODY LABS WOULD NOT LICENSE BODYKIT TO YOU WITHOUT SUCH LIMITATION.
  • Any claims relating to use of BodyKit or this Agreement must be brought within one year from the date the cause of action(s) arose. Claims brought after such period are VOID.

12. YOUR REPRESENTATIVES AND WARRANTIES

You represent and warrant that: (a) the performance of your obligations herein does not and will not violate any other contract or obligation to which you are a party, including covenants not to compete and confidentiality agreements; and (b) you have implemented and will continue to maintain sufficient information security protocols to secure and protect the confidentiality of all Confidential Information.

13. YOUR INDEMNIFICATION OBLIGATION

You shall indemnify and hold Body Labs and its licensors harmless from and against any and all claims, losses, liabilities, damages, settlements, judgments, taxes, penalties, fines, fees, and other expenses (including attorney and expert fees and court costs) arising out of or resulting from your (including through you) (a) use of BodyKit, except to the extent any such claim, loss or liability arises out of or results from any gross negligence or intentional misconduct on the part of Body Labs, (b) misuse of BodyKit, (c) breach of this Agreement, or (d) Applications.

14. U.S. GOVERNMENT RESTRICTED RIGHTS

BodyKit is Commercial Computer Software, and was developed solely at private expense. Use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government is subject to restrictions as set forth in Commercial Computer SDK — Restricted Rights clause at FAR 52.227-19, subsections (c)(1) and (2), as proscribed by FAR 27.405(b)(2), or the restrictions set forth in this license agreement pursuant to DFAR 227.7202-3(a), whichever is applicable. Copyright, Body Labs 2013-2014. Partially unpublished – rights reserved under the Copyright Laws of the United States.

15. NOTICES

Any notice permitted or required to be given under this Agreement shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested, by private courier service or by facsimile addressed to you at the notice address provided by you during registration and/or to Body Labs at 7 West 18th Street 7th Floor, New York, NY 10011, or to such other addresses as the parties may designate by like notice from time to time. A notice so given shall be effective upon: (a) receipt by the party to which the notice is given; or (b) the fifth day following domestic mailing or the tenth day following international mailing, whichever occurs first.

16. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement is to be governed by and construed under the laws of the State of New York, USA without reference to conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper management level representatives shall meet within 30 days of the dispute being referred to them and if the parties are unable to resolve such disagreement or dispute within 30 days of meeting, except to the extent specifically prohibited by applicable law in your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in New York, New York, USA in accordance with the Commercial Rules of the American Arbitration Association (“Rules”) and shall be heard by one arbitrator appointed in accordance with the Rules and to be mutually agreed to by the parties. If the parties fail to mutually agree upon an arbitrator within 30 days of submitting the dispute to arbitration, the American Arbitration Association shall appoint the arbitrator. The loser shall bear the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but you, may be joined or combined together, without the prior written consent of Body Labs. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, any breach of this Agreement could cause Body Labs irreparable harm and you agree that Body Labs has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding your violation or threatened violation of this Agreement. Further, notwithstanding the foregoing dispute resolution provision, Body Labs may terminate this Agreement at any time in accordance with the termination provisions of this Agreement. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent to the jurisdiction of the courts located in New York, New York, USA for any such claims arising from or related to this Agreement. The parties specifically agree that, in the event that there is a dispute under this Agreement no such dispute shall be resolved by jury trial. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL FOR ANY DISPUTES ARISING UNDER THIS AGREEMENT, INCLUDING DISPUTES AS TO WHETHER ATTORNEY’S FEES OR OTHER DAMAGES ARE DUE HEREUNDER. Unless, and only to the extent, prohibited by law in your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including without limitation any correspondence, discovery, submissions, filings, pleadings, oral pleadings and arguments, and orders or judgments.

17. GENERAL PROVISIONS

If you and Body Labs have executed a separate written agreement specifically governing BodyKit, including payment terms for use of BodyKit, this Agreement does not affect such executed agreement. Except as indicated in the prior sentence, this Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes and replaces any and all prior agreements, understandings, promises and representations, oral or written. Except as otherwise provided herein, this Agreement may only be amended or modified in a writing duly executed by representatives of both parties. This Agreement may not be assigned or transferred by you, including by operation of law or instances of change of control, except with Body Labs’ prior written consent. Any prohibited assignment shall be null and void. If any provision of this Agreement is found to be unenforceable or invalid by an arbitrator or a court of competent jurisdiction, such provision shall be interpreted so as to best accomplish the objectives of such provision and the remainder of this Agreement shall remain valid. No delay or failure of Body Labs to exercise any right under this Agreement, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of Body Labs’ right to exercise such right or to demand strict compliance by you with any terms hereof. Waiver by Body Labs of any particular default of you shall not affect or impair Body Labs’ rights with respect to any subsequent default of the same, similar or a different nature. The parties hereto confirm that they have requested that this Agreement, all notices related hereto, and other related documents be drafted in English. All contract interpretations, notices and dispute resolutions shall be in English. Any amendment to this Agreement shall be in English. This Agreement may be executed in counterparts by electronic transmission, including via PDF.

ANY QUESTIONS OR COMMENTS RELATING TO YOUR USE OF BODYKIT MAY DIRECTED TO US AT INFO@BODYLABS.COM.