NEXTBARRE Terms of Service
Effective: June 1, 2018
4 Your Core LLC, its subsidiaries and affiliates (“NEXTBARRE,” “we,” “us” or “our”) owns and operates NEXTBARRE and its network of websites including https://www.NextBarre.com, mobile applications, and any other linked and related pages, content, features, products, software, video player and tools offered by NEXTBARRE (the “Services”).
- YOUR ACCEPTANCE OF TERMS
- MODIFICATION OF TERMS
NEXTBARRE reserves the right, in its sole discretion, to modify the Terms of Service at any time by posting a notice on the NEXTBARRE website, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Service by you following such notice constitutes your acceptance of the terms and conditions of the Terms of Service as modified.
- ELIGIBILITY TO USE SERVICES
You must be 18 years or older to use our Services. If you believe that a child under 18 has used our Services and provided us any information, please contact us at admin@NextBarre.com. This Agreement is void where prohibited by law, and the right to access and use the Services is revoked in such jurisdictions.
By accessing the Services, you represent and warrant to NEXTBARRE that: (i) you are an individual (i.e., not a corporation) at least 18 years old; (ii) you are of legal age to form a binding contract or have your parent’s permission to do so; (ii) all registration information you submit is accurate and truthful and you will maintain the accuracy of such information; (iv) you are legally permitted to use and access the Services and take full responsibility for your access, selection and use of the Services.
- REGISTRATION FOR CERTAIN SERVICES
You will be required to register with your email address and select a password to use certain Services, and to provide your mobile phone number. If you provide your mobile phone number in connection with signing up for Membership Services and then do not complete your registration by linking your phone number to a valid ID, you understand that we may still send you text messages, but that you will be required to link your phone number to a valid ID in order to complete the purchase of any product. You may not use a name, email, or phone number of another person with the intent to impersonate that person. You shall provide NEXTBARRE with accurate, complete, and updated registration information. You shall be responsible for maintaining the confidentiality of your password. Any failure to comply with this provision may result in immediate termination of your account. NEXTBARRE reserves the right to refuse registration of, or cancel a user account in its discretion.
- MEDICAL WAIVER AND RELEASE
Because physical exercise can be strenuous and subject to risk of serious injury, we urge you to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You understand there are health risks associated with activities in these exercise videos and tutorials (hereinafter “Programs”). You are capable of performing physical exercise and acknowledge that you are voluntarily participating in these Programs. You are participating in the Programs with knowledge of the dangers and risks involved. You understand that you are fully responsible for complying with any restrictions prescribed for you by your personal physician and that you agree to consult your personal physician for further evaluation and such medical care as you require. You acknowledge your participation in these Programs is at your sole risk. You have been advised to consult with your personal physician before participation in the Programs. If recommended by your physician, you will consult with him/her on a regular basis. The 4 Your Core employees & owners (hereinafter “Team Members”) are not responsible for monitoring your compliance with your physician’s recommendations. Even consultation with your regular physician is in no way a guarantee against the possibility of adverse occurrences during these Programs. Nutrition & Dietary Information: Instructors and Team Members are NOT licensed nutritionists; therefore, you understand, any and all statements made by either of them are solely their personal belief, practice, and/or opinion. You will not take or construe their statements as medical or professional advice. If you have any questions about your nutrition or diet, then you will ask your physician or seek a licensed nutritionist for their professional recommendation. This waiver includes, but is not limited to, such claims that may result from any injury, illness, or death, accidental or otherwise, during or arising in any way from my participation in any exercise or recreation activity or instruction associated with the Programs. You hereby agree to expressly assume and accept sole responsibility for the risk of injury or death by 4YC and/or it’s Team Members.
- USER SUBMISSIONS
In the course of using the Services, you and other users may provide information which may be used by NEXTBARRE in connection with the Services and which may be visible to certain other users. By posting information, images, video, blogs, or other content on the Services (collectively, “User Submissions”) or otherwise providing User Submissions to NEXTBARRE or in connection with the Services, you hereby grant to (i) NEXTBARRE a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sub-licenseable, transferable right to fully exploit (including without limitation, reformatting, modifying, creating derivative works of, and translate) such User Submissions (including all related intellectual property rights) in connection with the Services and NEXTBARRE’s (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Services (or any derivative works thereof) in any media formats and through any media channels, and to allow others to do so; and (ii) each user of the Services a non-exclusive license to access your User Submissions through the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted through the functionality of the Services and under this Agreement.
The foregoing license grant to NEXTBARRE does not affect your ownership of or right to grant additional non-exclusive licensees to the material in your User Submissions, unless otherwise agreed in writing. You, not NEXTBARRE, remain solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to NEXTBARRE and to grant NEXTBARRE the rights to use such information in connection with the Services and as otherwise provided herein.
You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that NEXTBARRE will not be liable for any errors or omissions in any such content. You understand that NEXTBARRE cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, NEXTBARRE cannot guarantee the authenticity of any data, which users may provide about themselves. You acknowledge that all Content and User Submissions accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
- • Copyrights. All materials displayed or performed on the Services, or which may be made available for your download (including, but not limited to text, blogs, graphics, articles, photographs, images, illustrations, video and User Submissions (also known as the “Content”), are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy reproduce, modify translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. The Services are protected by copyright as collective works and/or compilations, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
- • Personal, Non-Commercial Use. The Services, and their Contents are intended solely for your personal, non-commercial use (except as specifically and expressly agreed in writing by NEXTBARRE in connection with a specific feature of the Service only) and may only be used in accordance with the terms of this Agreement. You may download or copy the Content for personal, non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not copy or store any Content except for personal, non-commercial use unless you have prior written permission from an officer of NEXTBARRE, or from the copyright holder identified in such Content’s copyright notice. You shall not store any significant portion of any Content in any form.
- • Guidelines for Posting and/or Viewing. Without limiting the other terms and conditions in this Agreement, you acknowledge and agree to the following guidelines for posting and/or viewing User Submissions and other Content on or through the Services:
- Any comment made using your identity or screen name will be deemed to have been posted by you.
- Keep all comments relevant and “on topic” to the particular Service posting that is open for comments.
- You shall not post abusive, obscene, threatening, harassing, defamatory, libelous, offensive or sexually explicit material.
- You shall not make false or misleading statements.
- You shall not offer to sell or buy any product or service, or post links to third party websites, without prior written permission from NEXTBARRE in connection with a feature of the Services.
- You shall not post material that infringes the intellectual property rights or other proprietary rights, or rights of publicity or privacy, of any third party.
- You shall not post information that is confidential or sensitive.
- You shall not post any content that objectionable or illegal (as described below), or could create a risk of harm, loss or damage of any kind.
You are solely responsible for the content that you post on or through the Services, any material or information that you transmit to other users and for any interactions with other users.
- • Objectionable or Illegal Content. You agree that you will not use the Services to send or post Content of any kind or nature that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, profane (unless such use is warranted within the topic area of a particular message board, as determined by NEXTBARRE in its sole discretion), racially offensive, inaccurate, or otherwise objectionable material or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, federal or international law or regulation. You agree not to use the Services to distribute or send any illegal Content of any kind. Posting illegal Content or participating in any form of discussion with the intention to commit any illegal activity is strictly prohibited.
- • Company’s Right to Monitor. NEXTBARRE has no obligation and assumes no responsibility for monitoring the Services or User Submission for inappropriate Content or conduct of its users. However, NEXTBARRE reserves the right to monitor, block or remove Content (including disabling access to User Submissions that you have downloaded through the Service) for any or no reason without notice to you. If NEXTBARRE chooses, in its sole discretion, to monitor the Services, NEXTBARRE assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content and no responsibility for the conduct of the user submitting any such Content.
- • Company’s Right to Remove Content. NEXTBARRE reserves the right to remove any Content from the Services at any time, for any reason or no reason in its sole discretion.
- NEXTBARRE MEMBERS PROGRAM
- • User Content. If you are a member of the NEXTBARRE Member’s Club, any content you create and submit (“User Content”) that is accepted by the NEXTBARRE Select Team, you agree not to publish such User Content on any other website (including your own blog) unless we specify to you in writing that you may publish the User Content on your own blog or website.
- • NEXTBARRE’s Rights and License. NEXTBARRE reserves the exclusive right to choose what User Content to publish or not publish in its sole discretion and is not obligated to provide you with a reason for rejecting any submitted User Content and reserves the exclusive right to remove and permanently delete the User Content without notice, in its sole discretion. In submitting your User Content, you grant NEXTBARRE an exclusive, perpetual, worldwide, royalty-free, irrevocable, sublicenseable, transferable, license and right to use and exploit the User Content.
- • Third Party Clearances. If your User Content includes references to, or images of, third parties (i.e., someone other than you) or other performances or content provided by third parties, including copyrights (including without limitation, copyrighted images or footage), trademarks or rights of privacy or publicity, you agree that you have all necessary permissions from these third parties to permit NEXTBARRE and/or any of its partners to use and display the User Content, including releases from all persons appearing in the photograph, location releases for all recognizable locations, and releases from anyone who assisted in the creation of the photograph. You must be able to provide all appropriate clearances, permissions and releases from anyone who assisted in the creation of such images or other content you submit. In the event you cannot provide all required releases upon our request, NEXTBARRE reserves the right, in our sole discretion, to disqualify the applicable submission or seek to secure the releases and clearances for our own benefit.
- • FTC Disclosures and Compliance. If you participate in the NEXTBARRE Member’s Program, you shall only make statements that are true, accurate, and based on your personal experience. You agree that you are solely responsible for, and may be liable for, any false or misleading claims that you make about any products, its manufacturer or promoter. You agree to review and adhere to all applicable FTC guidelines, any particular restrictions or guidelines regarding product reviews, and any applicable content guidelines of NEXTBARRE and/or NEXTBARRE’s advertising partners.
- NEXTBARRE MEMBERS COMMUNITY
The NEXTBARRE Members Community brings together readers and users of NEXTBARRE for the opportunity to participate in surveys, opinion polls, and/or online discussions related to certain products, services and/or features that NEXTBARRE or its partners have released or implemented, or that NEXTBARRE or its partners currently offer, may release or implement at some point in the future. Participation in the Members Community is by invitation only, and voluntary.
NEXTBARRE’S INTELLECTUAL PROPERTY AND LIMITED LICENSES
The fitness methods underlying our Services is the exclusive property of NEXTBARRE. Subject to your compliance with this Agreement, NEXTBARRE grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and make personal and non-commercial use of the Services, and any software underlying our Services solely to use the Services, as provided by NEXTBARRE in accordance with this Agreement. This license does not include any resale or commercial use of any Services or any Content. You shall not copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or software underlying our Services. You agree not to use modified versions of any software underlying our Service, including without limitation, for the purpose of obtaining unauthorized access to our sites or applications. You may not use any of our Services for any illegal purpose.
All rights in the product names, company names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of NEXTBARRE, its affiliates, or third-party products or services, whether or not appearing with a trademark symbol, belong exclusively to NEXTBARRE or their respective owners, and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials containing the trademarks, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Services confers on you any license or right under any patent or trademark of NEXTBARRE, its affiliates, or any third party.
- YOUR REPRESENTATIONS AND WARRANTIES
You warrant, represent and agree that you will not use the Services or contribute any User Submissions (including, without limitation, anything in connection with your blog(s)) in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, or rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, rule, ordinance or regulation; (iii) violates any other agreement you have with, or any obligations to, any third party; (iv) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (v) misrepresents the source or identity of any content; (vi) involves commercial activities and/or sales without NEXTBARRE’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vii) uploads, installs, constitutes, or embeds malware, virus, worms, Trojan horses, or other harmful content or code; or (viii) impersonates, or falsely indicates an affiliation with, any person or entity, including, without limitation, any employee or representative of NEXTBARRE.
- RESTRICTIONS AND OTHER PROHIBITED ACTIVITIES
Any violation of the above may be grounds for termination of your right to access or use the Services. NEXTBARRE reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, for any use that NEXTBARRE deems in its sole discretion to be an illegal or unauthorized use of the Services. NEXTBARRE will cooperate fully with any law enforcement officials and/or agencies in the investigation of any person(s) who violate the terms of this Agreement.
- YOUR OTHER OBLIGATIONS
You are responsible for all of your activity in connection with the Services. You shall be responsible for (i) obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service; (ii) ensuring that such equipment or ancillary services are compatible with the Services; (iii) taking all precautions necessary and/or reasonable to protect yourself, your computer systems and other property from viruses, worms, Trojan horses, and other harmful content and code.
You are responsible for withholding, filing, and reporting all taxes duties and other governmental assessments associated with your activity in connection with the use of the Services.
- INTERNATIONAL USE; EXPORT CONTROLS
The Services are offered by NEXTBARRE from its facilities in the United States of America. NEXTBARRE makes no representations that the Services are appropriate or available for use in other locations. Users who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local laws. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export control laws. No software may be downloaded from the Services or otherwise exported or re-exported in violation of the export control laws of the United States.
- DISCLAIMER OF WARRANTIES
THE SERVICES, CONTENT, AND PRODUCTS PURCHASED OR OTHERWISE OBTAINED THROUGH THE NEXTBARRE WEBSITES, APPLICATIONS AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF CONTENT, NON-INFRINGEMENT, THE AVAILABILITY OR QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE VIA THE SERVICES, OR THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU IF YOU ARE A RESIDENT OF NEW JERSEY OR ANOTHER STATE WHICH DOES NOT ALLOW SUCH LIMITATIONS.
Without limiting the generality of the foregoing, NEXTBARRE makes no representations or warranties regarding the accuracy of descriptions displayed anywhere on the Services, or regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind from NEXTBARRE or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product.
The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. NEXTBARRE makes no representations concerning any Content contained in or accessed through the Services, and NEXTBARRE will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Under no circumstances will NEXTBARRE be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted or otherwise made available via the Services.
NEXTBARRE has no special relationship with or fiduciary duty to you. You acknowledge that NEXTBARRE has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services (including, without limitation, viruses, malware, harmful code and user generated content); what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content.
- NO MEDICAL OR OTHER PROFESSIONAL ADVICE
The Content (including, without limitation, all text, graphics, images, search results, data and information contained therein), and such materials obtained from NEXTBARRE’s licensors or other third parties, and all Services are provided for informational purposes only and are not intended to be a substitute for professional medical advice, diagnosis, examination, or treatment, or for any other professional advice of any kind (including without limitation legal or financial advice). Do not ignore professional advice, or delay in seeking treatment because of anyone or any Content on the Services. Always seek the advice of your qualified healthcare provider with any question you may have regarding a medical condition. If you think you may have a medical emergency, call your doctor or 911 immediately. NEXTBARRE does not recommend or endorse any specific tests, physician, products, procedures, opinions, or other information that may be mentioned on the Services. Reliance on any such information is solely at your own risk. The Services may contain health-related materials that are sexually explicit. If you find these materials offensive, you may not want to use our Services. The Content is not intended to be legal advice or form an attorney-client relationship of any kind. If you believe you have a legal claim, contact an attorney licensed in your state or country.
- ELECTRONIC COMMUNICATIONS
When you use our Services, or send emails to us, you are communicating with us electronically. You agree that we may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on our Services, “push” mobile notification, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
You agree to indemnify and hold NEXTBARRE, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) made by any third party due to or arising out of your access to the Services, use of the Services, the violation of this Agreement by you, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Please note, some states, such as New Jersey, may limit or prohibit indemnification obligations and, therefore, this provision may not apply if you are a resident of New Jersey or another state with such limitations.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTBARRE OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND NEXTBARRE’S REASONABLE CONTROL. BECAUSE SOME JURISDICTIONS, INCLUDING WITHOUT LIMITATION NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY SET FORTH ABOVE, THE ABOVE LIMITATIONS MAY NOT APPLY IF YOU ARE A RESIDENT OF NEW JERSEY OR ANY OTHER JURISDICTION THAT DOES NOT ALLOW SUCH LIMITATIONS. IN SOME CIRCUMSTANCES, NEXTBARRE MAY BE LIABLE FOR ITS OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT.
- FEES AND PAYMENT
NEXTBARRE reserves the right to require payment of fees for certain or all Services. You shall pay all applicable fees, as described on the Services in connection with such Services selected by you. NEXTBARRE reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be posted on our websites, sent by via email or postal mail. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges. To the fullest extent allowed by applicable law, all fees paid hereunder are non-refundable unless otherwise permitted by this Agreement.
- INTERACTION WITH THIRD PARTIES
Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that NEXTBARRE shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that NEXTBARRE is under no obligation to become involved.
- RELEASE OF CLAIMS
You hereby release NEXTBARRE, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of (i) having acquired or not acquired any Content through the Services, or (ii) any disputes with any third party and our Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
- MODIFICATION AND TERMINATION
NEXTBARRE reserves the right to modify, discontinue, terminate or suspend any and all Services without prior notice. This Agreement shall remain in full force and effect while you use any part of the Services. You may terminate your use of the Services or your membership at any time by following the instructions on the Services. NEXTBARRE may terminate or suspend your access to the Services (and/or any feature thereof) or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Upon termination of your account, your right to access and use the Services and any Content will immediately cease.
- BINDING ARBITRATION/ CLASS ACTION WAIVER
Certain portions of this Arbitration section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and NEXTBARRE agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.
You and NEXTBARRE agree to arbitrate any and all disputes or claims arising out of, in connection with, or relating to use or purchase of the Services or any aspect of the relationship between You and NEXTBARRE. This includes agreeing to arbitrate claims that arose before this Agreement came into effect and any claims that may arise after termination of this Agreement. The arbitration shall be conducted in accordance with the American Arbitration Association (“AAA”) Consumer Arbitration Rules then in effect. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. If the specific provision of this paragraph is found to be unenforceable, then the entirety of the Agreement titled “BINDING ARBITRATION” shall be null and void.
Arbitration is a method of claim resolution that is less formal than a traditional court proceeding. It uses a neutral arbitrator instead of a judge or jury and is subject to limited review by courts. YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
BY USING THE NEXTBARRE WEBSITE, PURCHASING OR SUBSCRIBING TO ANY SERVICE OR PURCHASING ANY PRODUCT ADVERTISED THROUGH IT AND/OR PROVIDED BY THE PROMOTERS AND/OR OWNERS THEREOF, YOU AGREE THAT ANY ACTION AND/OR ARBITRATION PROCEEDING ARISING AS A RESULT OF ANY CLAIMS BROUGHT SHALL NOT BE CERTIFIED AS A CLASS AND/OR COLLECTIVE ACTION OR PROCEED AS A CLASS AND/OR COLLECTIVE ACTION, OR PROCEED ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER CUSTOMERS OR POTENTIAL CUSTOMERS OR PERSONS SIMILARLY SITUATED, OR CONSOLIDATED WITH, OR JOINED IN ANY WAY WITH, ANY OTHER ACTION AND/OR ARBITRATION PROCEEDING. YOU AGREE THAT ALL SUCH CLAIMS WILL, THUS, PROCEED ONLY ON AN INDIVIDUAL BASIS AND YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE AND/OR OTHER FORM OF REPRESENTATIVE ACTION/ARBITRATION OR SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON.
- WAIVER AND SEVERABILITY
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. NEXTBARRE shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond NEXTBARRE’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws and/or provisions thereof. Subject to the arbitration provision and for all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California, the laws of the State of California applying.
- ENTIRE AGREEMENT
You and NEXTBARRE agree that this Agreement (including any terms or policies expressly incorporated herein) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
- NO AGENCY; NO ASSIGNMENT
This Agreement is not assignable, transferable or sublicensable by you except with NEXTBARRE’s prior written consent. NEXTBARRE may transfer, assign or delegate this Agreement and its rights and obligations without consent. Headings for each section have been included for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind NEXTBARRE in any respect whatsoever.
All provisions of this Agreement which by their nature are intended to survive performance hereof by you or NEXTBARRE, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability, shall survive the completion of the performance, cancellation or termination of this Agreement.
- COPYRIGHT DISPUTE POLICY
- • NEXTBARRE’S General Policy. NEXTBARRE has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”) (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of NEXTBARRE’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is NEXTBARRE’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; (2) notify the content provider, member or user that it has removed or disabled access to the material; and (3) remove and discontinue access by and service to repeat offenders.
- • Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that NEXTBARRE is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- • Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the content provider, member or user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- Content providers, member’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content providers, member’s or user’s address is located, or if the content providers, member’s or user’s address is located outside the United States, for any judicial district in which NEXTBARRE is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, NEXTBARRE may send a copy of the counter-notice to the original complaining party informing that person that NEXTBARRE may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at NEXTBARRE’s discretion.
- • Designated Agent to Receive Notification of Claimed Infringement:
Please contact NEXTBARRE’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Margolin & Biatch
1970 Broadway, Suite 1200
Oakland, Ca 94612
501 Fifth Ave. 19th Floor
New York, NY 10017
- APPLE DEVICE AND APPLICATION TERMS
In the event you are using the Services in connection with a device provided by Apple, Inc. (“Apple”) or a NEXTBARRE application obtained through the Apple App Store (collectively, such uses are henceforth the “Application”), the following shall apply.
- Both you and NEXTBARRE acknowledge that this Agreement is concluded between you and NEXTBARRE only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that NEXTBARRE, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third -party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, NEXTBARRE, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and NEXTBARRE acknowledge and agree that, in your use of the Application, you will comply with any applicable third -party terms of agreement which may affect or be affected by such use; and
- Both you and NEXTBARRE acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third -party beneficiary hereof.
If you have any questions or notices of violation of this Agreement, please send an email to admin@NextBarre.com,
FTC DISCLOSURE REQUIREMENTS
NEXTBARRE aims to provide unbiased editorials. However, we wish to disclose that (i) we receive free products from marketers that we sometimes review or discuss in our editorials, and (ii) we may run advertisements on our sites concerning some of those products or companies that sell them (and other products sold by such companies) for which we sometimes receive compensation.