Effective Date: January 1, 2023
- Subscription. You have purchased a Subscription to the Spiro100 Content for your Tablets through Claris, you will get full and unlimited access to the Spiro100 Content for as long as you maintain an active subscription.
- License. Subject to your compliance with these Terms, the license granted under this Agreement is for the exclusive use of you and your Clients. This license includes the right to view the Content available on the Claris Tablet. With the exception of your Clients, this license may not be assigned or sublicensed to anyone else. You agree not to reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Spiro100 Content.
- Indemnity. You agree to indemnify, defend, and hold harmless Spiro100 and its members, directors, officers, principals, partners, instructors, independent contractors, employees, contractors, affiliates, assignees, representatives, and agents and Claris (each an “Indemnified Party” and collectively the “Indemnified Parties”) from and against all claims, damages, losses and costs that arise from or relate to (i) your and/or your Client(s)’ use of the Spiro100 Content, (ii) or (ii) your violation of these Terms.
- You acknowledge that all forms of physical exercise shown in the Content constitute strenuous physical exercise and pose the risk of injury and/or physical or mental exhaustion to Clients. You acknowledge that Spiro100 is unable to, and is not responsible for, evaluating each Cliet who will access the Content, to determine whether such Client should seek the advice of a physician prior to engaging in the physical exercise, regimen, routine, and/or program, including use of any suggested equipment, shown in the Content. You further acknowledge that the instructors may suggest physical adjustments, movements, modifications, and/or use of equipment in the Content, and it is not Spiro100’s responsibility to determine if any such suggested adjustment, movement, modification, and/or suggested equipment is appropriate for each Client’s level of ability, and physical and mental condition.
- You expressly assume any and all liability that may arise from any person’s, including but not limited to any Client’s, use of, or access to, the Content, except in the case of Spiro100’s gross negligence or willful misconduct. You shall defend, indemnify, and hold harmless the Indemnified Parties, from and against any and all losses, liabilities, damages, judgments, awards, expenses, claims, actions, lawsuits and costs, including reasonable attorneys’ fees and other expenses (the “Indemnified Harm”), that arise from or relate to your use of or access to the Content, including but not limited to, any and all claims, damages, liabilities, costs, and expenses, including court costs and reasonable attorneys’ fees, brought by or on behalf of any Client, or by any Client’s representative(s), estate, family member(s), or other person(s), asserting a claim of injury and/or damage from any such Client’s use of or access to the Content.
- Spiro100 and/or each Indemnified Party shall promptly notify you of any claim or litigation to which the indemnity set forth in this section applies. You agree to respond to any demand for defense, indemnification, and/or hold-harmless from Spiro100 and/or any Indemnified Party within ten (10) days of receipt of such notice. You agree to defend all actions to which such indemnity applies and to conduct the defense thereof at your sole expense, and by your counsel, which such counsel shall be satisfactory to the Indemnified Parties. Further, each Indemnified Party reserves the right to control any litigation that may arise from any such demand. Failure of you to comply with the terms set forth in this section shall constitute a material breach of these Terms.
No Warranties. THE SPIRO100 SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, SPIRO100 MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SPIRO100 CONTENT WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. Spiro100 reserves the right to modify the Spiro100 Content, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content, at any time, in its sole discretion. Spiro100 has no obligation to screen or monitor any Content and does not guarantee that any Content available is suitable for all users or that it will continue to be available for any length of time. Spiro100 provides the Spiro100 Content on an “AS IS” and “AS AVAILABLE” basis. You and your Clients therefore use the Spiro100 Content at your own risk. To the extent permitted by law, Spiro100 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. To the extent that another party may have access to or view Content on your Tablet, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. To the fullest extent permitted by law, Spiro100 and the members, directors, officers, principals, partners, instructors, independent contractors, employees, agents, contractors, affiliates, distributors, licensors, and representatives of Spiro100 disclaim all warranties, express or implied, in connection with the Spiro100 Content and your use thereof. Spiro100 makes no and disclaims all, warranties and/or representations, express or implied, concerning your use of or access to the Spiro100 Content, including, but not limited to: (i) any errors, mistakes, or inaccuracies of the Spiro100 Content; (ii) any personal injury or property damage of any nature, resulting from your use of or access to the Spiro100 Content; (iii) any interruption or cessation of transmission of Spiro100 Content to or from the Website; (iv) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Claris Tablet; and/or (v) any errors or omissions in any Spiro100 Content, or for any loss or damage of any kind that occurs as a result of the use of the Spiro100 Content.
TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE SPIRO100 CONTENT, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
- Limitation on Liability. Spiro100’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by Claris on behalf of your organization to Spiro100 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 fullest extent permitted by law, Spiro100, and its members, directors, officers, principals, partners, instructors, independent contractors, employees, agents, contractors, affiliates, distributors, licensors, and representatives: (i) shall not be liable for any direct, indirect, incidental, special, exemplary, punitive, or consequential 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 Spiro100 Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose, arising from, or directly or indirectly resulting from, any: (i) errors, mistakes, or inaccuracies of the Spiro100 Content; (ii) personal injury or property damage of any nature, resulting from your use of or access to the Spiro100 Content; (iii) interruption or cessation of transmission of Spiro100 Content; (iv) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the Claris Tablet; and/or (v) any errors or omissions in any Spiro100 Content or for any loss or damage of any kind that occurs as a result of the use of any Spiro100 Content, whether based on warranty, contract, tort, or any other legal theory, and whether or not Spiro100 is advised of the possibility of such damages. To the extent that one or any aspect of Spiro100’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 Spiro100 and you.
- Intellectual Property. You acknowledge that the Spiro100 Content contains text, software, scripts, graphics, photos, sounds, music, videos, interactive features, and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Spiro100-generated Content, and content provided to Spiro100 by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between you and Spiro100, Spiro100 owns a copyright in the selection, coordination, arrangement and enhancement of all content in the Spiro100 Service.
- ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Spiro100 agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Spiro100 entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Spiro100 are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- Exceptions and Opt-out. As limited exceptions to Section 8(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Spiro100’s Legal Department at the Spiro100 address set out below within thirty (30) days following the date you first agree to these Terms.
- Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Spiro100 will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than U.S. $10,000, unless the arbitrator finds your Dispute to be frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Class Action Waiver. YOU AND SPIRO100 AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 16 shall be null and void.
- Effect of Changes on Arbitration. Notwithstanding the provisions of Section 21 “Modification”, if Spiro100 changes any of the terms of this Section 8 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Spiro100’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Spiro100 in accordance with the terms of this Section 8 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- With the exception of any of the provisions in above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
- Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State California, United States of America, without regard to principles of conflicts of law. Subject to the agreements in Section 8 above, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in Los Angeles, California, United States of America, and you consent to the jurisdiction of those courts.
- 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 Spiro100 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 Spiro100. Spiro100’s rights and remedies hereunder are cumulative and not exclusive.
- Successors/Assignment. 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 Spiro100’s prior written consent. Spiro100 may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
- Modification. 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). Modifications will be effective on the date that they are posted to ____________. It’s important that you review the Terms whenever we update them before you use the Spiro100 Content. If you continue to use the Spiro100 Content after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 8(f) “Effect of Changes on Arbitration,” you may not use the Spiro100 Content anymore. Because the Spiro100 Content is evolving over time we may change or discontinue all or any part of the Spiro100 Content, at any time and without notice, at our sole discretion.