GOLF MIND & BODY USER AGREEMENT
Golf Mind & Body is an App owned and managed by Be Your Best LLC (the Company) that provides an online fitness, health, and wellness app for a comprehensive, 360-degree approach to golf performance improvement and other related products and services. By registering as a FREE or PAID subscriber to Golf Mind & Body, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and GOLF MIND & BODY and the Company. This agreement is bound by the laws of Massachusetts, USA.
1. User Requirement
Golf Mind & Body has no specific age requirement and is designed to help all golfers regardless of age, abilities or challenges become better players. You, as a Golf Mind & Body user, agree that you are currently in a healthful physical state and have been cleared by your family physician to participate in our fitness related activities/exercises.
2. License to Use the Golf Mind & Body App
License. Subject to your compliance with these Terms and solely while you are a paid or free subscriber to the Golf Mind & Body App, you are permitted access and use of the App. In addition, you are granted a limited, non-transferable, non-exclusive, revocable right and license to access and use the Golf Mind & Body App and all of its’ available content within the App itself or contained in associated Golf Mind & Body properties such as the Company website for your own personal, non-commercial purposes. You agree that you may not assign or sublicense your subscription to anyone. This license includes the right to view Content (defined below) available on the Golf Mind & Body App and corresponding website(s). You also agree that you have the right to download one copy of the application from an App Store that distributes Golf Mind & Body (presently exclusive to the Apple Store) to any single device for your personal, non-commercial home or mobile use only and that you keep intact all copyright and other proprietary notices. This license will remain in effect until your subscription expires or license is terminated by you; or is terminated by Golf Mind & Body due to a violation of this User Agreement.
Except as permitted in writing by an officer of the Company, you agree not to reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Golf Mind & Body App and any/all related content. Unless otherwise specified, copying, or modifying any Content or using Content for any purpose other than your personal,non-commercial use of the Golf Mind & Body App, including use of any such Content on any other website or networked computer environment, is strictly prohibited.
3. Membership Requirements Registration
To enjoy full access to the Golf Mind & Body App, you must register as a FREE or PAID subscriber and enter into a subscription agreement. Your Subscription is governed by these terms, and you must therefore provide complete and accurate registration information and notify us if any of your information changes. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third-party rights, is against the law, or that is offensive, obscene, or otherwise objectionable (in the Company’s sole discretion).
4. Account Security.
You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not share your credentials or allow others to use your account with the sole exception of authorized trainers that have been afforded access to your curriculum by you through the Golf Mind & Body onboarding process. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Golf Mind & Body App. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.
6. Sale of Products
Golf Mind & Body accepts orders for workout equipment, apparel, or accessories through the Golf Mind & Body online store accessible only through the Golf Mind & Body website at: www.golfmindandbody.com. Unfortunately, Golf Mind & Body will not accept orders for any equipment or goods within the Golf Mind & Body App but may offer additional, related health & wellness services from time to time through the App itself.
7. Term & Termination
Term. These Terms begin on the date that you first register for the Golf Mind & Body App and continue as long as you have an active subscription. Subscriptions renew automatically at the end of the specified term unless you specifically request to terminate the subscription. Termination. Golf Mind & Body may, in its’ sole discretion, suspend or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, if the Company determines that you have violated these Terms or that your conduct would tend to damage Golf Mind & Body’s reputation or goodwill. If the Company deletes your account, you may not re-register or use the Golf Mind & Body App under any other username or profile. Any violation of this provision may result to legal action.
Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by the Company will terminate. The following sections survive termination: Privacy (Section 3), User Content (Section 8), Indemnification (Section 12), No Warranties (Section 15), Limitation of Liability (Section 16), Safety Warnings (Section 17), Intellectual Property (Section 18), Arbitration Requirement & Class Action Waiver (Section 20), Contracting Entities, Governing Law, and Jurisdiction (Section 21), and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and Golf Mind & Body is not responsible for the deletion or loss of any potential User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes and any other Content or features provided through the Golf Mind & Body App.
The Company, in its sole discretion, may make available a very limited amount of Content or features for marketing or related purposes to non-subscribers from time to time, and any use of that Golf Mind & Body Content is also governed by these Terms.
8. User Content
In the context of this User Agreement, “Content” is defined as text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Golf Mind & Body App; and (ii) ”User Content” is defined as any content that users or subscribers (including you) provide to be made available through the Golf Mind & Body App and related websites or extended properties to any and all other Golf Mind & Body App users. Content includes, without limitation, all User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules, and regulations. You acknowledge that all Content, including User Content, accessed by you using the Golf Mind & Body App is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Golf Mind & Body App. As between you and Golf Mind & Body you represent that you own (or have all rights necessary to grant Golf Mind & Body the rights below to) all User Content that you may submit to the Golf Mind & Body App and website, and that Golf Mind & Body will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Golf Mind & Body a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Golf Mind & Body App permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Golf Mind & Body or through the Golf Mind & Body App about improving or adding new features or products to the Golf Mind & Body App or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to Golf Mind & Body a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Golf Mind & Body. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
9. Rights and Terms for Apps
Rights in App Granted. Subject to your compliance with these Terms, Golf Mind & Body grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes.
You may not copy the App, Except as expressly permitted in these Terms, you may not:
i. copy, modify or create derivative works based on the App;
ii. distribute, transfer, sublicense, lease, lend or rent the App to any third party;
iii. reverse engineer, decompile or disassemble the App; or
iv. make the functionality of the App available to multiple users through any means
with the exception of sharing curriculum with your designated “coach” designated in your onboarding process. Golf Mind & Body reserves all rights in and to the App not expressly granted to you under these Terms.
Accessing the App from the App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”).
You acknowledge and agree that:
• These Terms are between you and Golf Mind & Body, and not with the App Provider, and Golf Mind & Body (not the App Provider), is solely responsible for the App. • The App Provider has no obligation to furnish any maintenance and support services with respect to the Golf Mind & Body App.
• In the event of any failure of the Golf Mind & Body App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Golf Mind & Body.
• The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to:
i. product liability claims;
ii. any claim that the App fails to conform to any applicable legal or regulatory requirement; and
iii. claims arising under consumer protection or similar legislation.
• In the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Golf Mind & Body will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
• The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof. • You represent and warrant that
i. you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country;
ii. you are not listed on any U.S. Government list of prohibited or restricted parties;
iii. you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
• You must also comply with all applicable third-party terms of service when using the App.
10. General Prohibitions and Golf Mind & Body’s Enforcement Rights
You agree not to do any of the following:
1. Post, upload, publish, submit, or transmit any User Content or engage in any activity that:
i. infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
ii. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
iii. is fraudulent, false, misleading, or deceptive;
iv. is defamatory, obscene, pornographic, vulgar, or offensive;
v. promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
vi. is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
vii. exploits minors or
viii. promotes illegal or harmful activities or substances;
2. Use, display, mirror or frame the Golf Mind & Body App or any individual element within the Golf Mind & Body App, Golf Mind & Body’s name, any Golf Mind & Body trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Golf Mind & Body’s express written consent;
3. Access, tamper with, or use non-public areas of the Golf Mind & Body App, Golf Mind & Body’s computer systems, or the technical delivery systems of Golf Mind & Body’s providers; 4. Attempt to probe, scan or test the vulnerability of any Golf Mind & Body App or network or breach any security or authentication measures;
5. Attempt to access, scrape or search the Golf Mind & Body App or Content or download Content from the Golf Mind & Body App and related website(s), including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Golf Mind & Body or other generally available third-party web browsers;
6. Send any unsolicited or unauthorized advertising, promotional materials, email,
junk mail, spam, chain letters or other form of solicitation;
7. Use any meta tags or other hidden text or metadata utilizing a Golf Mind & Body trademark, logo URL or product name without Golf Mind & Body’s express written consent;
8. Use the Golf Mind & Body App or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Golf Mind & Body;
9. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Golf Mind & Body App or Content to send altered, deceptive, or false source-identifying information;
10. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Golf Mind & Body App or Content;
11. Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Golf Mind & Body App;
12. Collect or store any personally identifiable information from the Golf Mind & Body App from other users of the Golf Mind & Body App without their express permission;
13. Copy, use, index, disclose or distribute any information or data obtained from the Golf Mind & Body App, whether directly or through third parties (such as search engines), without Golf Mind & Body’s express written consent;
14. Alter, replicate, store, distribute or create derivatives from the Content available via the Golf Mind & Body App except as expressly permitted in writing by Golf Mind & Body;
15. Impersonate or misrepresent your affiliation with any person or entity;
16. Access, use or exploit the Golf Mind & Body App in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Golf Mind & Body or the Golf Mind & Body App;
Although we’re not obligated to monitor access to or use of the Golf Mind & Body App or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Golf Mind & Body App, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Golf Mind & Body App and Golf Mind & Body’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Golf Mind & Body App. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. Medical Disclaimer
The Golf Mind & Body App and the Golf Mind & Body website have been designed and developed to be a golf-specific health and wellness experience that provides content from a wide variety of experienced professionals for the purpose of providing personalized content
deemed both educational and entertaining in scope to help you, the subscriber, become a better golfer. Golf Mind & Body and its’ related website, however, are not designed or intended to offer any information or instruction that should be considered “medical advice.”
Any information provided directly on the Golf Mind & Body App or website or indirectly through strategic partners of Golf Mind & Body is not intended and shall not be taken to represent medical counseling or of medical practice including but not limited to medical, psychiatric, dietary, psychological, or psychotherapy-based counseling. In addition, Golf Mind & Body does not represent or assure users that content and related information provided on either the App or the Golf Mind & Body website is based on the most current medical or scientific research findings available.
Prior to beginning the physical assessment of Golf Mind & Body or undertaking the personalized physical fitness program, you agree that you are in good overall physical health and have been through an annual checkup with your ersonal physician or will initiate a consultation with your physician to validate your overall health & wellness. You understand that if you have any concerns about your health, you should not undertake any exercise programs until you have consulted your physician and received clearance to proceed. As a FREE or PAID subscriber to the Golf Mind & Body App, you agree to the following statements:
a. you do not have any condition that would cause a fitness routine to have any adverse effects on your health and wellbeing
b. you have not been informed by a physician or other health care practitioner that you
have high blood pressure or an existing heart condition or are at risk of a heart condition and should not engage in any physical activity related to fitness at any level
c. you do not know of any other health related reasons why you should not participate in a fitness program like Golf Mind & Body
d. You hold Golf Mind & Body and all affiliated strategic partners harmless in the rare occurrence of any injury or any health-related issues that may develop while you are a subscriber to the Golf Mind & Body App.
12. Member Interactions, Dealings with Third Parties
When interacting with other Golf Mind & Body members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Golf Mind & Body App, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations, or warranties associated with such dealings, are solely between you and such third party. You agree that Golf Mind & Body is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when taking classes, please be advised that Golf Mind & Body is not responsible for any lost or stolen items and that visitors, guests and members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.
You agree to indemnify, defend, and hold harmless Golf Mind & Body and its directors, officers, employees, and agents, from and against all claims, damages, losses, and costs that arise from or relate to
i. your activities on the Golf Mind & Body App,
ii. any User Content submitted by or on behalf of you or
iii. your violation of these Terms.
14. Third Party Software and Applications
Downloading and/or installing any third-party software and/or applications that are not expressly authorized by Golf Mind & Body on any Golf Mind & Body hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Golf Mind & Body.
15. Third Party Links and Content
There may be links on the Golf Mind & Body App that let you leave the Golf Mind & Body App to access a linked site that is operated by a third party.
16. No Warranties
Golf Mind & Body reserves the right to modify the Golf Mind & Body App, including, but not
limited to updating, adding to, enhancing, modifying, removing, or altering any Content or features of the Golf Mind & Body App, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Golf Mind & Body App. Golf Mind & Body has no obligation to screen or monitor any Content and does not guarantee that Content available on the Golf Mind & Body App is suitable for all users or that it will continue to be available for any length of time.
Golf Mind & Body provides the Golf Mind & Body App on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Golf Mind & Body App at your own risk. Other than as expressly provided in writing by Golf Mind & Body in connection with your purchase of a Golf Mind & Body product, to the extent permitted by law, Golf Mind & Body expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Golf Mind & Body makes no representations or warranties:
• That the Golf Mind & Body App will be uninterrupted or error-free;
• Concerning any Content, including User Content;
• Concerning any third party’s use of User Content that you submit;
• That the Golf Mind & Body App will meet your personal or professional needs;
• That Golf Mind & Body will continue to support any feature of the Golf Mind & Body App; or
• Concerning sites and resources outside of the Golf Mind & Body App, even if linked to from the Golf Mind & Body App
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms.
16. Limitation of Liability
To the fullest extent permitted by law:
i. Golf Mind & Body shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Golf Mind & Body App or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and
ii. Golf Mind & Body’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Golf Mind & Body over the 12 months preceding the date your first claim(s) arose.
If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Golf Mind & Body’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Golf Mind & Body and you.
17. Safety Warnings
THE GOLF MIND & BODY APP OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR ANY HEALTH ADVICE YOU MAY RECEIVE FROM YOUR PHYSICIAN, THERAPIST OR ANY OTHER PROFESSIONAL YOU MAY CONSULT ABOUT YOUR SPECIFIC WELL-BEING.
18. Intellectual Property Usage and Reporting Infringement
Golf Mind & Body respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the Golf Mind & Body App or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please go to the Golf Mind & Body website, and report these findings at your earliest convenience in the “CONTACT US” section.
19. Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Golf Mind & Body in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Golf Mind & Body. Golf Mind & Body’s rights and remedies hereunder are cumulative and not exclusive.
20. Successors; Assignment; No Third-Party Beneficiaries
These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Golf Mind & Body’s prior written consent. Golf Mind & Body may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from Golf Mind & Body electronically. Golf Mind & Body may communicate by email or by posting to the Golf Mind & Body App. For support-related inquiries, you may email Support at firstname.lastname@example.org. For all other notices to Golf Mind & Body, write to the following address for U.S. and Canadian Residents:
Golf Mind & Body
15 Main Street
Dover, MA 02030 USA
Attn: Legal Department
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Golf Mind & Body Site and/or through the Golf Mind & Body App. Modifications will be effective on the date that they are posted to the Golf Mind & Body Site. It is important that you review the Terms whenever we update them before you use the Golf Mind & Body App. If you continue to use the Golf Mind & Body App after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then, you may not use the Golf Mind & Body App anymore. Because the Golf Mind & Body App is evolving over time we may change or discontinue all or any part of the Golf Mind & Body App, at any time and without notice, at our sole discretion.
23. Entire Agreement
These Terms represent the entire understanding between Golf Mind & Body and you regarding the Golf Mind & Body App or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
24. Force Majeure
Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.