Via Pros da God 24
7504 Pontresina, CH
UID: CHE-403.010.681 MWST
Terms and Conditions
Last amended: March 4th, 2021
Effective date: March 4th, 2021
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE AND/OR ACCESS TO OUR WEBSITE, MOBILE APPLICATIONS, OUR PROGRAMS, OUR COACHING OFFERINGS, AND OTHER SERVICES AND PRODUCTS PROVIDED BY CLEMSTEEN GMBH.
By using our websites (EatBetterNotPerfect.com and/or other websites owned or operated by Clemsteen GmbH), mobile applications (“Mobile App”), coaching offerings and programs including content and coaching delivered through various coaching platforms that we utilize (“Coaching”), and/or other services we provide you agree to the terms and conditions set forth in this User Agreement (this “Agreement”).
The Website, and/or Mobile App, and/or Coaching, and/or Content, and/or Programs and/or all other products and/or services offered by Clemsteen GmbH currently and in the future in any combination (part, whole, or any combination) as applicable are herein collectively referred to as “Services”. We reserve the right, in our sole discretion, to change, modify, add or remove provisions of this Agreement at any time. You should check this Agreement periodically for changes. By using our Services after we post any changes to this Agreement or otherwise notify you of such changes, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to this Agreement, you should not use our Services and you should arrange to cancel your registered user account with us, as applicable.
1. Scope of Agreement
Unless we indicate otherwise, this Agreement applies to your use of the Websites and Mobile apps which are owned or operated by Clemsteen GmbH. (hereafter referred to “EBNP,” “we,” “us,” or “our”) and our affiliates (collectively, “EBNP”), including, without limitation, our website (collectively, “Website”), mobile applications (collectively, “Mobile App”), and any other website and/or mobile app that we may own or operate currently or in the future (collectively, our “Website” and “Mobile App”) and all of the Coaching and/or programs, content, products and/or services that we may offer currently or in the future. For purposes of this Agreement, “affiliates” will mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, EBNP. “You” or “User(s)” or “your” or “client” or similar terms refer to you the User of our Services that we offer now or in the future. The parties agree as follows:
No Medical Care. The Services are intended only to assist Users with their efforts to lose and/or manage weight and/or live a healthy lifestyle and/or achieve lifestyle-related goals through making lifestyle related choices and/or lifestyle change including changes in nutrition and/or physical activity. Services are not health care services. EBNP and EBNP’s coaches and staff do not give medical advice or diagnosis. No information provided in the context of providing Services may be construed as medical advice or diagnosis. Some online platforms to which Users may be referred utilize terms like “patients,” “providers,” and “clinics.” Use of such terms on a platform, or the use of any other terms commonly related to the medical field, should not be construed as EBNP or EBNP’s coaches, staff, or third-party agents, and/or other Users of the Service providing medical care. Additionally, the information and reports generated by EBNP in providing the Services may not be interpreted as a substitute for physician consultation, evaluation, or treatment. You, the User, acknowledges that EBNP has advised you to seek the advice of a physician before entering into this Agreement.
User Participation. User acknowledges that participation is at own risk, and therefore is advised to consult a doctor before participating. User may participate in the Services to the extent User desires, but EBNP reserves the right to terminate User’s participation if User does not demonstrate he or she is making a good faith effort, in the sole discretion of EBNP, to benefit from the Services.
Release of Information. User understands and acknowledges that EBNP may, at its sole discretion, release de-identified health information (health information that neither identifies nor provides a reasonable basis to identify an individual). User authorizes EBNP to release individually identifiable health information to User’s insurers, to User’s medical care providers, and to EBNP’s successors and assigns to the extent necessary to provide continuity of Services in the event EBNP’s duties are transferred to another provider.
No Guarantee of Results. EBNP makes no guarantees with regard to the results User may achieve. This may include improved energy, improved sleep, reduced stress level, amount of weight User may lose or the rate at which such weight loss will occur or other results that the User will experience or achieve.
2. Your Use of our Website, Mobile App and Coaching
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display our Website and Mobile App and the material provided heron and the Coaching that you subscribed to, for your personal, non-commercial use, provided that you comply fully with the provisions of this Agreement. You agree not to assign, transfer or sublicense your rights as a registered user of, or subscriber to, our Services. You understand that only you may use your user account and password and that your subscription to our Services is only valid for your personal, non-commercial use and may not be shared with others. You agree to be financially responsible for all usage or activity of our Website, Mobile App, Coaching, and/or Services subscribed to by you. To subscribe to Coaching, you represent that you are eighteen years or older and have the right, capacity and authority to enter into and abide by these Terms and Conditions.
By using our Services you agree to be legally bound and to abide by this Agreement, just as if you had signed this Agreement. If you do not comply with this Agreement at any time, we reserve the right to cancel or terminate your password, user account, and/or access to our Services. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services, including, but not limited to, (i) restricting the time the Website, Mobile App and/or Coaching is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user’s right to use the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. If you do not abide by the terms of this Agreement, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Website (or any part thereof), our Mobile App (or any part thereof) and/or Coaching and/or Services. Further, you agree that we will not be liable to you or any third party for any termination or cancellation of your access to, or use of, our Services, except for a refund of any fees or charges prepaid by you with respect to Services in accordance with Section 4 of this Agreement. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us pursuant to this provision or this Agreement, or any policies or practices by us in providing our Services including without limitation any change in content or any change in the amount or type of fees or charges associated with the Services, is to cancel or terminate your subscription or registered user account, as applicable.
3. Charges and Fees for Coaching (If Applicable)
Certain portions, components, content, and features of our Website and/or Mobile App may only be available to individuals who purchase a subscription to our Coaching. As a subscriber to our Services, you agree as follows:
You agree to pay, using a valid credit card (or other form of payment which we may accept from time to time; or payment from your employer in the case of an employer-sponsored offering), the fixed and periodic charges set forth on our Website, applicable taxes, and other charges and fees incurred in order to access our Services. We reserve the right to increase charges and fees or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on our Website or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). We will automatically charge your credit card or other accounts at the start of your selected service or billing period (i.e. one-time purchase, monthly, quarterly, annually) unless you terminate or cancel your subscription before the relevant billing period begins. Each time you use our Services you reaffirm your agreement that we may charge your credit card (or other forms of payment, or your employer in the case of an employer-sponsored offering, if applicable). In the event we cannot charge your account, we reserve the right to terminate your access to our Services.
In addition to the fees and charges set forth above, you are responsible for all charges and fees associated with connecting to and using our Services including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Services.
For purposes of your use of our Services including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription or sign up process to the Services (“Subscription Data”), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date), and to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide, communicating with you, and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Subscription Data and any other information you provide to us to keep it accurate. Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of our Services. You are obligated to check to ensure that your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data including your billing information with us. You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on our Website and/or Mobile App and/or Coaching and/or E-Newsletter. If your registration or subscription is revoked for any reason, you agree not to register or subscribe again with our Services using another user name or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without any notice to you or to exercise any other remedies available to us under this Subscription Agreement or by law.
You are entirely responsible for maintaining the confidentiality of your password and user account information. You must notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password or credit card information. In the event of a breach of security by you, you will remain liable for any unauthorized use of your subscription until you update your Subscription Data. If your credit card expires, is canceled, is lost or is subject to use without your authorization, log onto your EBNP account to update your payment information. If you have questions related to billing and payment then please reach out to us at email@example.com. You are entirely responsible for any and all activities which occur under your user account. You are responsible for paying any amounts billed to your credit card by a third party which was not authorized by you.
You agree that all fees and charges assessed by us are nonrefundable. If your cancellation of your subscription to our Services is due to your failure to satisfy limitations we set based on demographic, geographic, health or other similar criteria prior to the end of a period for which you have incurred a charge, with the exception of any fixed upfront fee (such as the Sign Up Fee), we will refund any unused portion of such period in accordance with the refund policy we have in effect at such time. If we cancel or terminate your subscription to our Services (as opposed to you canceling your subscription) prior to the end of a period for which you have incurred a charge, with the exception of any fixed upfront fee (such as the Sign Up Fee), we will refund any unused portion of such period on a pro rata basis.
4. Money back guarantee
The Eat Better, Not Perfect program has successfully shaped hundreds of success stories. If you don't experience any positive changes after sticking to the program, we'll refund your money with the following conditions:
Results are only possible by putting in the effort. If you are not adhering to the program, which is measured by coach interaction (regularly replying to coach questions) and regular score entry in the online tool, we are not obliged to give you your money back.
Before the refund takes place, you agree to have a short phone/skype/WhatsApp call so we can learn from your situation and understand the lack of results.
5. Cancellation of Subscription
The 6 or 8-week online-program is not a subscription. “Subscription” refers to ongoing monthly or other periodically charged enrollments to services provided by EBNP but does not refer to enrollment in the 6 or 8-week program or other services offered by EBNP which are not renewed on predefined time intervals.
Either you or EBNP may terminate or cancel your subscription to Services at any time. You understand and agree that the cancellation or termination of your subscription is your sole right and remedy with respect to any dispute with us including, without limitation, any dispute related to, or arising out of: (i) any terms of this Agreement or our enforcement or application of this Agreement; (ii) any practice or policy of EBNP or our enforcement or application of these policies; (iii) the content available through our Website and/or Mobile App and/or Coaching or any change in content provided through the Website and/or Mobile App and/or Coaching; (iv) your ability to access and/or use our Website, Mobile App, and/or Coaching; or (v) the amount or types of our fees or charges, surcharges, applicable taxes, or billing methods, or any change to our fees or charges, applicable taxes, or billing methods. Upon cancellation or termination of your subscription to Mobile App and/or Coaching, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Website (or part thereof), our Mobile App (or part thereof) and/or Coaching, except as we may otherwise provide from time to time.
In case you are enrolled in a recurring monthly subscription service, you can cancel your subscription by contacting us or by such other means as we may provide from time to time. We will attempt to process all cancellation requests within 72 hours after we receive your request. If you cancel near the end of your billing period and are inadvertently charged for the next period’s fee, contact us to have the charges reversed. If you use our services (website access or contact with coaches initiated by you) during that next period, you will not be entitled to a refund. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect, and such collected amounts are non-refundable.
6. Availability of Coaching
The availability and use of Mobile App and/or Coaching (or any portion thereof) may be limited based on demographic, geographic, health, or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to Mobile App and/or Coaching or may terminate your subscription to Mobile App and/or Coaching at any time based on these criteria.
Because we use real coaches, the availability of your assigned coach is limited to his/her geographic location. You may at any time reach out to our coaches through the means provided by us (email, WhatsApp, other channels we provide from time to time), and can expect a delay in response by our coaches. You should expect a delay in response a couple of hours if your request/message was sent to your coach through WhatsApp or email during Mondays to Fridays (excluding public holidays at the company address of EBNP) between 9 AM and 6 PM (local time at the company address of EBNP). On Weekends, a reply is not guaranteed, however possible based on the availability of your assigned coach. In case the delay in response in the aforementioned time frame is consistently long (>12 hours for multiple days), please reach out to us at “firstname.lastname@example.org”.
7. Health Disclaimer
Our Services provide nutritional information, coaching, weight management, and lifestyle-related information applications and content published over the Internet and are intended only to assist users in their personal weight management and healthy lifestyle efforts and goals. EBNP is providing these services as non-medical services and the Coaching is not medical coaching and our staff cannot give you medical advice or diagnosis. Nothing contained in our Website or through the Coaching should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning this or any lifestyle-related or weight management effort or regimen. You represent that you are in good enough health to begin using our Services, which may include changes to your diet and/or physical activity, and/or other lifestyle-related behaviors. Individuals with chronic diseases or health problems supervision are specifically warned to seek professional medical advice prior to initiating any form of weight management or lifestyle change effort. If you have been diagnosed with a chronic disease or other health condition, you represent that you have obtained approval from your health care provider to receive the Services before using them, that you will be actively supervised by your health care provider while utilizing our Services and that you will inform us about your situation in the foreseen profile section. User participation and engagement are required. The user acknowledges that results may vary, despite your efforts, and EBNP cannot guarantee that you will achieve your lifestyle-related goals.
For more information, you should review our Health Notice, which is incorporated into this Agreement by this reference.
8. Automatically Become a Registered User
As a subscriber to our website, Mobile App, and/or Coaching, you automatically become a registered user of our Community. If you cancel your subscription to Coaching, you may remain a registered user of our Basic Version of the website and/or Mobile App, however, you will not receive access to portions of the website or Mobile App (including some content and personal coaching which is only available to Subscribers).
9. Restrictions on Use of Materials
You acknowledge that our Website and/or Mobile App contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All trademarks and trade names appearing on our Website are trademarks and trade names of their respective owners. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on our Website. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer or mobile phone or another electronic device, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
10. Community Standards and Conduct Guidelines
You acknowledge that all Content and all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted to or on our Website and/or Mobile App, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the “Postings”), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to our Website and/or Mobile App. We do not control the Postings posted, emailed or otherwise transmitted on our Website and/or Mobile App by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of our Website and Mobile App (as described below), you understand that by using our Website and/or Mobile App, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us or our affiliates), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through our Website and/or Mobile App. You agree not to use our Website and/or Mobile App (including any Community Platform) to:
Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
Impersonate any person or entity, including, but not limited to, any user of our Website and/or Mobile App, a director, officer, employee, shareholder, agent or representative of EBNP or our affiliates, or any other person or entity, or falsely state or otherwise misrepresent your affiliation with EBNP, our affiliates or any other person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through our Website and/or Mobile App;
Upload, post, email or otherwise transmit any Postings or other materials that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party;
Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation, except in those areas, if any, that are specifically designated for such purpose;
Upload, post, email or otherwise transmit any Postings or other materials that contain 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;
Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of a Platform (or other portion of our Website) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of our Website and/or Mobile App;
Interfere with or disrupt our Website, Mobile App or servers or networks connected to our Website and/or Mobile App, or disobey any requirements, procedures, policies or regulations of networks connected to the Website and/or Mobile App;
Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
“Stalk” or otherwise harass another user or employee of our Website, Mobile App and/or Coaching;
Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Website and/or Mobile App, including user names or passwords; or
Access or attempt to access another user’s account without his or her consent.
Your privilege to use our Services and contribute to discussions on the Community Platform (Group Chat) depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of our Website and/or Mobile App, take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any part of this User Agreement, we may terminate, in our sole discretion, your use of, or participation in, any Community Platform. All Community Platform communications, including, but not limited to, chat, Group Chat, message board, blog, groups, and profile communications, are public and not private communications. User names, profile pictures are public and not private. Members of Group Chat or any other Community Platform are able to view your username, profile picture, and posts. Therefore when you utilize the Mobile App your username, profile picture (not progress pictures), comments on the Group Chat are not confidential and are public. Progress pictures you upload in the profile data is confidential and will only be accessible by EBNP coaches and EBNP’s employees. We reserve the right to monitor some, all, or no areas of our Website and/or Mobile App (including any Community Platform, including Group Chat) for adherence to the community standards and conduct guidelines set forth above or for any other purpose. You acknowledge that by providing you with the ability to distribute Postings in the Community Platform (including Group Chat), we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any Postings or activities in any Community Platform (including Group Chat), nor do we endorse any such Postings. Although we reserve the right to remove, without notice, any Community Platform (including Group Chat) posting for any reason, we have no obligation to review Content prior to the Content’s posting or to delete Postings that you may find objectionable or offensive. We are not responsible for maintaining a copy of any material we remove from our Website and/or Mobile App, and we are not liable for any loss you incur in the event that Content you post or transmit to our Website and/or Mobile App is removed.
If, at our request or on your own, you send, email, post or otherwise transmit to us or our Website and/or Mobile App any Content (collectively, the “Submissions”), you grant EBNP and its successors and assigns a royalty-free, perpetual, irrevocable, non-exclusive right (including any moral rights) and license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display any Submissions (in whole or in part and with or without the use of your name) worldwide and/or to incorporate the Submissions in other works in any form, media, or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights”) that may exist in such Submissions. You also warrant that to the extent you are not the exclusive holder of all Rights in a Submission, any third party holder of any Rights, including moral rights in such Submissions, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You further acknowledge that EBNP and its successors and assigns will be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. You also permit any user to access, display, view, store and reproduce any Submission that you have made available in a Community Platform (including Group Chat) for personal use. Subject to the foregoing, the owner of a Submission placed on our Website and/or Mobile App retains any and all Rights that may exist in such Submission. None of the Submissions will be subject to any obligation of confidence on our part, and we will not be liable for any use or disclosure of any Submissions.
This Agreement applies only to our Website and/or Mobile App, and not to the websites of any other person or entity. We may provide, or third parties may provide, links to other websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our sole discretion, terminate the rights of any user to use our Website and/or Mobile App (or any part thereof) who infringes the intellectual property rights of others.
14. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES: THE PRODUCTS, SERVICES, OFFERINGS, CONTENT, AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COACHING) ON OUR WEBSITE AND/OR MOBILE APP AND/OR ANY OTHER PLATFORM ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER EBNP, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT OUR WEBSITE AND/OR MOBILE APP OR ANY FUNCTION CONTAINED IN OUR WEBSITE AND/OR MOBILE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT OUR WEBSITE AND/OR MOBILE APP OR THE SERVERS THAT MAKE OUR WEBSITE AND/OR MOBILE APP AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY PRODUCT, OFFERING, CONTENT, AND MATERIAL (INCLUDING, WITHOUT LIMITATION, THE COACHING AND/OR MOBILE APP) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR WEBSITE AND/OR MOBILE APP IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE PHONE, AND/OR ANY OTHER ELECTRONIC DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL (INCLUDING, WITHOUT LIMITATION, THE COACHING AND/OR MOBILE APP). NEITHER EBNP, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COACHING) IN OUR WEBSITE AND/OR MOBILE APP IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH OUR WEBSITE AND/OR MOBILE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
15. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE OUR WEBSITE AND/OR MOBILE APP (INCLUDING, WITHOUT LIMITATION, COACHING AND/OR THE FEE- BASED PRODUCTS); (B) THE USE OF ANY CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, THE COACHING AND NUTRITION GUIDANCE) ON OUR WEBSITE AND/OR MOBILE APP OR ANY WEBSITE OR WEBSITES LINKED TO OUR WEBSITE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR WEBSITE AND/OR MOBILE APP (INCLUDING, WITHOUT LIMITATION, THE COACHING); (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR WEBSITE AND/OR MOBILE APP (INCLUDING, WITHOUT LIMITATION, THE COACHING); OR (F) ANY OTHER MATTER RELATING TO OUR WEBSITE AND/OR MOBILE APP. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR WEBSITE AND/OR MOBILE APP OR FOR PARTICIPATING IN COACHING OR ANY OF OUR FEE-BASED SERVICES OR FREE SERVICES . IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR WEBSITE AND/OR MOBILE APP AND/OR COACHING OR OTHER SERVICES, OR WITH ANY OF PROVISION OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF OUR WEBSITE, MOBILE APP AND/OR COACHING AND/OR SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend us and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorney’s fees and expenses) arising from your improper use of our Website, Mobile APP, our products, offerings, or Services (including, without limitation, the Coaching), your violation of this Agreement, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
17. Governing Law and Choice of Forum
This Agreement will be governed by and construed in accordance with Swiss law, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of our Services, Website, and/or Mobile App (including, without limitation, the Coaching) or this Agreement will be filed only in courts located in the Zürich canton of Switzerland and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
18. Miscellaneous Terms
In any action against us arising from the use of our Services, Website and/or Mobile App (including, without limitation, the Coaching), the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and will not affect the validity and enforceability of any remaining provisions. This Agreement is the entire agreement between you and us relating to the subject matter herein.
This Agreement may be modified only by our posting of changes to this Agreement on our Website and/or Mobile App, or by written agreement of both parties. Each time you access our Website and/or Mobile APP, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns, and licensees. The failure of either party to insist in any one or more instances upon the strict performance of the terms, covenants, or conditions of this Agreement and to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the obligations of the other party with respect to future performance will be and remain in full force and effect.