Terms of Use
OC Positive Posture
Terms of Use
OC Positive Posture (collectively, “OC Positive Posture”, “us”, “we” or “our”) are pleased to
provide you with access to and use of our websites, applications, content, services, promotions,
software, technology and any other materials (collectively, “OC Positive Posture
Services”).
OC POSTIVE POSTURE SERVICES ARE NOT INTENDED FOR ANYONE UNDER THE
AGE OF 13. IF YOU ARE 13 TO 17 YEARS OF AGE, YOU MAY ONLY ACCESS AND/OR
USE ANY OC POSTIIVE POSTURE SERVICES WITH THE INVOLVEMENT AND
APPROVAL OF YOUR PARENT OR GUARDIAN.
1. Agreement; Privacy Policy.
These Terms of Use (“Terms”) and our Privacy and Cookie Policies (collectively, as referenced
herein, the "Privacy Policy") (www.ocpositiveposture.com) form a legally binding agreement
between you and OC Positive Posture and govern your access and use, and our provision of, the
OC Positive Posture Services and any other technology, content, items or other materials
provided by or through OC Positive Posture, or otherwise on which these Terms are provided.
BY ACCESSING OR USING ANY OC POSITIVE POSTURE SERVICE, YOU AGREE TO
BE BOUND AND ABIDE BY THESE TERMS, OUR PRIVACY AND COOKIE POLICIES
AND ANY AMENDMENTS THERETO, AND YOU AGREE YOU ARE AT LEAST 13
YEARS OF AGE. READ THESE TERMS CAREFULLY BEFORE USING ANY OC
POSITIVE POSTURE SERVICES.
2. Updates to these Terms.
We may in our sole and absolute discretion change these Terms or our Privacy or Cookie
Policies from time to time to comply with laws or due to changes in our business requirements.
These revisions shall be effective for users immediately upon being posted to the OC Positive
Posture Services. If you do not agree with any of the changes, you must discontinue using any
and all OC Positive Posture Services. By continuing to use any OC Positive Posture Services,
you expressly accept any applicable changes.
3. OC Positive Posture’s Intellectual Property; Limited License to OC Positive Posture
Services.
A. Ownership. You acknowledge and agree that the OC Positive Posture Services, and
intellectual property rights contained therein, including without limitation any copyrights,
patents, trademarks, proprietary or other rights contained therein, related thereto, or otherwise
arising therefrom are owned by OC Positive Posture or its affiliates, licensors or suppliers. You
expressly agree that you will do nothing inconsistent with OC Positive Posture’s ownership of
the OC Positive Posture Services, and that you gain no rights, title, or interest in or to any OC
Positive Posture Services or any goodwill associated therewith, except as stated in these Terms
or any executed written agreement between you and OC Positive Posture In addition, except as
expressly set forth in these Terms, you are not conveyed any right or license by implication,
estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of
OC Positive Posture or any third party. Any and all goodwill arising from your use of any OC
Positive Posture Services shall inure solely to the benefit of OC Positive Posture.
B. Limited License. For any OC Positive Posture Services which enable you to use any
software, content, or other materials owned or licensed by us only after you become validly
authorized by us, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-
transferable license solely to access and use the specific OC Positive Posture Services, and any
related software, content, or other materials FOR YOUR PERSONAL, NON-COMMERCIAL
USE ONLY.
C. Restrictions. You are prohibited from, and expressly agree that you will not: (i) circumvent
or disable any content protection system, digital rights management technology, user and/or
country limitations or any other technology used with any OC Positive Posture Services; (ii)
decompile, reverse engineer, disassemble or otherwise reduce any O OC Positive Posture
Services to a human-readable form; (iii) remove identification, warnings, disclaimers,
disclosures, copyright or other proprietary notices in or on the OC Positive Posture Services; (iv)
access or use any OC Positive Posture Services in an unlawful or unauthorized manner or in a
manner that suggests an association with our content, products, services or brands, unless you
have an executed agreement with us that allows for such activity; (v) use, alter, copy, modify,
store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit,
create derivative works of, or exploit any OC Positive Posture Services or any part thereof,
except as expressly authorized in these Terms or as part of the OC Positive Posture Services
provided to you; (vi) introduce a virus or other harmful component, or otherwise tamper with,
impair or damage any OC Positive Posture Services or connected network, or interfere with any
person or entity’s use or enjoyment of any OC Positive Posture Services; (vii) access, monitor, or
copy any element of the OC Positive Posture Services using a robot, spider, scraper or other
automated means or manual process without our express written permission; or (viii) sell, resell,
or make commercial use of the OC Positive Posture Services, unless you have an executed
agreement with us that expressly allows for such activity. You may not access or use any OC
Positive Posture Service in violation of United States export control and economic sanctions
requirements. By accessing or otherwise using any services, content or software through any OC
Positive Posture Services, you represent and warrant that: (ix) your access to and use of the OC
Positive Posture Services, or any content or software therein, will comply with any and all
requirements in these Terms; (x) you are not located in a country that is subject to a U.S.
government embargo, or that has been designated by the U.S. government as a terrorist
supporting country, and that you are not listed on any U.S. government list of prohibited or
restricted parties; and (xi) you will comply with all applicable local, national, and international
laws, rules, regulations and ordinances in connection with your use of any OC Positive Posture
Services and our websites.
D. Providers. If you access any O OC Positive Posture Service using an Apple iOS or other
third party device, you acknowledge that each of those third party companies, such as Apple Inc.
(each, “App Provider”), will not be responsible for any damages arising out of the failure of a
OC Positive Posture Service to operate as intended.
When accessing any OC Positive Posture Services by or through an App Provider, you
acknowledge and agree that: (i) these Terms are concluded between you and OC Positive
Posture, and not with the App Provider, and that we are solely responsible for any OC Positive
Posture Services (such as mobile applications), and not the App Provider; (ii) the App Provider
has no obligation to furnish any maintenance and support services with respect to any OC
Positive Posture Services; (iii) in the event of any failure of the OC Positive Posture Services to
conform to any applicable warranty: (a) you may notify the App Provider and the App Provider
will refund the purchase price for the OC Positive Posture Services to you (if applicable); (b) to
the maximum extent permitted by applicable law, the App Provider will have no other warranty
obligation whatsoever with respect to the OC Positive Posture Services; and (c) any other claims,
losses, liabilities, damages, costs or expenses attributable to any failure to conform to any
warranty will be our responsibility; (iv) the App Provider is not responsible for addressing any
claims you have or any claims of any third party relating to any OC Positive Posture Services or
your possession and use of the OC Positive Posture Services, including without limitation: (d)
product liability claims; (e) any claim that the OC Positive Posture Service fails to conform to
any applicable legal or regulatory requirement; and (f) claims arising under consumer protection
or similar legislation; (v) in the event of any third party claim that the OC Positive Posture
Service or your possession and use of the same infringes that third party’s intellectual property
rights, we will be responsible for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim to the extent required by these Terms; (vi) the App
Provider and its subsidiaries, are third party beneficiaries of these Terms as it relates to your
license of the OC Positive Posture Services, and that, upon your acceptance of these Terms, the
App Provider will have the right (and will be deemed to have accepted the right) to enforce these
Terms against you as a third party beneficiary thereof; and (vii) you must also comply with all
applicable third party terms of service when using the OC Positive Posture Services.
E. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THE OC POSITIVE
POSTURE SERVICES, INCLUDING WITHOUT LIMITATION, ANY PRODUCTS, GOODS,
SERVICES, WEBSITES, APPLICATIONS, HEALTH, FITNESS, NUTRITION AND
WELLNESS CONTENT AND ADVICE, IF ANY, OR ANY OTHER INFORMATION
PROVIDED THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL
FAULTS, ERRORS AND OMISSIONS, AND WITHOUT ANY PERFORMANCE
ASSURANCES OR GUARANTEES OF ANY KIND. WE EXPRESSLY DISCLAIM ANY
AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR
IMPLIED, REGARDING THE OC POSITIVE POSTURE SERVICES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY
QUALITY, UPTIME, ACCESSIBILITY, AND WARRANTIES ARISING FROM COURSE
OF DEALING, USAGE OR TRADE PRACTICE. WE MAKE NO GUARANTEE OR
WARRANTY THAT THE OC POSITIVE POSTURE SERVICE WILL MEET YOUR
REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. WE
FURTHER MAKE NO GUARANTEE OR WARRANTY AS TO THE PARTICULAR
HEALTH AND WELLNESS GOALS, RESULTS, BENEFITS OR OUTCOMES THAT MAY
BE ACHIEVED OR OBTAINED THROUGH USE OF ANY OC POSITIVE POSTURE
SERVICES. YOU AGREE TO USE THE OC POSITIVE POSTURE SERVICES AT YOUR
SOLE RISK.
YOU WILL NOT HOLD OC POSITIVE POSTURE OR ITS THIRD-PARTY SERVICE
PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR
ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE
OC POSITIVE POSTURE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS
OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE OC POSITIVE
POSTURE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER
LIMITATIONS.
ALL INFORMATION AND EXERCISES PROVIDED BY OC POSITIVE POSTURE ARE
FOR EDUCATIONAL PURPOSES ONLY, AND ARE NOT TO BE INTERPRETED AS A
DIAGNOSIS OR RECOMMENDATIONS FOR A SPECIFIC TREATMENT PLAN OR
COURSE OF ACTION. OC POSITIVE POSTURE AND ITS AFFILIATES OR PARTNERS
ARE NOT MEDICAL PROVIDERS IN ANY CAPACITY WITH RESPECT TO THE
SERVICES. EXERCISE IS NOT WITHOUT ITS RISKS AND THIS OR ANY OTHER
EXERCISE PROGRAM MAY RESULT IN INJURY. THEY INCLUDE AND ARE NOT
LIMITED: RISK OF INJURY, AGGRAVATION OF PRE-EXISTING CONDITIONS OR
ADVERSE EFFECTS OF OVER-EXERTION SUCH AS MUSCLE STRAIN, ABNORMAL
BLOOD PRESSURE, FAINTING, DISORDERS OF HEARTBEAT, AND IN VERY RARE
INSTANCES OF HEART ATTACK. TO REDUCE YOUR RISK OF INJURY, BEFORE
BEGINNING THIS OR ANY EXERCISE PROGRAM, PLEASE CONSULT WITH A
HEALTHCARE PROVIDER FOR AN APPROPRIATE EXERCISE PRESCRIPTION AND
SAFETY PRECAUTIONS. THE EXERCISE INSTRUCTIONS AND ADVICE PRESENTED
IN OR ASSOCIATED WITH THE SERVICES ARE EDUCATED GENERAL (NON-
MEDICAL ADVICE) OPINIONS OF OC POSITIVE POSTURE AND ARE IN NO WAY
INTENDED AS A SUBSTITUTE FOR MEDICAL CONSULTATION WITH A LICENSED
PHYSICIAN. OC POSITIVE POSTURE DISCLAIMS ANY LIABILITY FROM AND IN
CONNECTION WITH THIS OR ANY OC POSITIVE POSTURE SERVICE. IF ANY AT
ANY POINT DURING YOUR WORKOUT YOU BEGIN TO FEEL FAINT, DIZZY OR
HAVE PHYSICAL DISCOMFORT, YOU SHOULD STOP IMMEDIATELY AND CONSULT
A PHYSICIAN.
4. Your Content and Account.
A. User Generated Content. The OC Positive Posture Services may allow you and users of our
websites to communicate, submit, upload or otherwise make available personally identifiable
information (including health, wellness and nutritional data), feedback about our products and
services, testimonials, success stories, or other content (“User Generated Content”). User
Generated Content that you submit through your Team OC Positive Posture Account or any
other OC Positive Posture Services will be stored, maintained and used by OC Positive Posture
in accordance with our Privacy Policy available at www.ocpositiveposture.com
B. User Conduct. You must only use the OC Positive Posture Services for lawful purposes, and
you must not use them in a way that infringes the rights of anyone else or that restricts or inhibits
anyone else's enjoyment of any OC Positive Posture Services. In using any OC Positive Posture
Services, and in particular, our websites, you expressly acknowledge you are prohibited from,
and agree that you will not without our prior express written consent:
i. copy, reproduce, or improperly use, post or access any content on the OC Positive Posture
Services;
ii. modify, distribute, or re-post any content on the OC Positive Posture Services for any
purpose;
iii. use the content on the OC Positive Posture Services for any commercial exploitation
whatsoever;
iv. disrupt or interfere with the security of, or otherwise abuse, the OC Positive Posture
Services, or any services, system resources, accounts, servers, or networks connected to or
accessible through the OC Positive Posture Services or affiliated or linked sites;
v. access content, data or portions of the OC Positive Posture Services which are not
intended for you, or log onto a server or account that you are not authorized to access;
vi. attempt to probe, scan, or test the vulnerability of the [OC Positive Posture Services,
including websites, applications, or any associated system or network, or breach security or
authentication measures without proper authorization;
vii. access any OC Positive Posture Services or our websites through any automated means,
such as “robots,” “spiders,” or “offline readers”;
viii. interfere or attempt to interfere with the use of the OC Positive Posture Services
by any other user, host or network, including, without limitation by means of submitting a virus,
overloading, "flooding," "spamming," "mail bombing," or "crashing";
ix. use any data mining, “scraping”, web crawling, robots, or similar data gathering and
extraction methods on the OC Positive Posture Services;
x. upload, post, or otherwise transmit through or on the OC Positive Posture Services any
viruses or other harmful, disruptive, or destructive files;
xi. create or use a false identity on the OC Positive Posture Services, share your account
information, use another individual’s account information, or allow any person besides yourself
to use your account to access the OC Positive Posture Services;
xii. harvest or otherwise collect information about OC Positive Posture users, including email
addresses and phone numbers;
xiii. download, “rip,” or otherwise attempt to obtain unauthorized access to any OC
Positive Posture Services, content or other materials; and
xiv. post any copyrighted material unless the copyright is owned by you.
C. Your Account; Passwords. You agree to provide and maintain accurate, current and
complete information for your accounts, including as applicable, your name, contact, and
payment information. You agree that we may take steps to verify the accuracy of information
you provide. You are responsible for maintaining the confidentiality of your username and
password, and you are responsible for all activities under your account that you can reasonably
control. You may not share your password or other login information with any person; any use of
your account by any person other than yourself is grounds for suspension or termination of your
account. You agree to promptly notify us of any unauthorized use of your username, password or
other account information, or of any other breach of security that you become aware of involving
your account or the OC Positive Posture Services. You agree not to use the account, username or
password of any other account holder at any time. OC Positive Posture will not be liable for any
loss that you incur as a result of someone else using your password, either with or without your
knowledge.
5. OC Positive Posture’s Products/Services; Websites; Apps; Orders.
A. Order Processing. We reserve the right to refuse or cancel any order prior to delivery.
Some situations that may result in your order being cancelled include system or typographical
errors, inaccuracies in product or pricing information or product availability, fairness among
customers where supplies are limited, or problems identified by our credit or fraud departments.
We also may require additional verification or information before accepting an order. We will
contact you if any portion of your order is cancelled or if additional information is required to
accept your order. If your order is cancelled after we have processed your payment but prior to
delivery, we will of course refund your payment. All purchases are subject to applicable
shipping and handling, and sales and/or other taxes, which will be applied to your order total. For
non-shippable goods, sales and/or other taxes will be calculated based on the billing address
provided. For shippable goods, sales and/or other taxes will be calculated based on the shipping
address provided. For orders that consist of both shippable and non-shippable goods, sales and/or
other taxes will be calculated based on the shipping address provided.
B. Your Personal and Payment Information. When you provide any information to us for any
reason, such as to sign up for an offer, use our mobile applications, or purchase our OC Positive
Posture Services, you agree to only provide true, accurate, current, and complete information. By
providing any credit card or other payment card information to us, you represent that such
payment information is correct, and belongs to you or you have the authority to use such
payment card. In the case of e-mail, you must provide an accurate e-mail address that is
registered to you. You are responsible for promptly updating your information with any changes,
especially to keep your billing information current. You must promptly notify us if your payment
card is cancelled (for example, for loss or theft).
C. OC Positive Posture’s Reservation of Rights. OC Positive Posture reserves the right to
suspend or terminate your interaction with any OC Positive Posture Services for any or no reason
in its sole and absolute discretion, including your access, use or purchase of any products, goods
or services that we provide. If you are accessing, using and/or purchasing any OC Positive
Posture Services on behalf of a company, you represent you have sufficient authority to bind that
company to these Terms.
6. Important Notice About Fitness and Nutrition Content.
A. OC Positive Posture Services Do Not Constitute Medical Advice or Other Professional
Healthcare Advice.
Although OC Positive Posture provides its products and services with your health and safety in
mind, each individual has their own limitations and it is therefore critical that you consult your
physician or other licensed healthcare provider for necessary medical or appropriate care, follow
all safety and other instructions provided by OC Positive Posture and obtain appropriate
authorization before accessing or using any OC Positive Posture Services, especially if you are
prone to injuries, are pregnant or nursing, or have any other unique or special medical conditions.
ALL OC POSITIVE POSTURE SERVICES ARE PROVIDED FOR INFORMATIONAL
PURPOSES ONLY, AND ARE NOT INTENDED TO DIAGNOSE ANY MEDICAL OR
HEALTHCARE CONDITION, REPLACE THE ADVICE OF A LICENSED HEALTHCARE
PROFESSIONAL, OR PROVIDE ANY MEDICAL ADVICE, OPINION, DIAGNOSIS,
TREATMENT OR GUARANTEE. The information made available on or through the OC
Positive Posture Services should not be relied upon when making medical or other important
healthcare decisions. OC POSITIVE POSTURE DOES NOT PROVIDE CLINICAL
SERVICES. ANY INDIVIDUALS CERTIFIED BY OC POSITIVE POSTURE IN ANY OC
POSITIVE POSTURE PRODUCTS OR SERVICES ARE NOT FUNCTIONING IN ANY
CLINCIAL OR LICENSED MEDICAL OR PSYCHOLOGICAL CAPACITY; SUCH
INDIVIDUALS ARE SOLELY PROVIDING INFORMATIONAL AND EDUCATIONAL
SELF-HELP RESOURCES. YOUR USE OF ANY OC POSITIVE POSTURE SERVICES
DOES NOT CREATE A DOCTOR-PATIENT, PROFESSIONAL-CLIENT, OR SIMILAR
RELATIONSHIP BETWEEN YOU AND OC POSITIVE POSTURE OR YOU AND ANY
PERSON CERTIFIED THROUGH OC POSITIVE POSTURE.
Any individual results using OC Positive Posture Services may vary. Exercise and proper diet
are necessary to achieve and maintain weight loss and muscle definition. The testimonials
featured on our websites may have used more than one OC Positive Posture product, nutrition
program and/or supplements, or extended the program to achieve their successful results.
B. Nutrition Information. Certain OC Positive Posture Services, such as nutrition information,
are designed to help our customers eat healthy to help them reach their health and wellness goals.
While any nutrition information we may provide is designed to safely align with our related
exercise regimens, you must consult your physician or other licensed healthcare provider before
beginning any nutrition plan or altering any dietary regimen. The OC Positive Posture Services
are not a substitute for professional care. If you have or suspect you may have a medical or
psychological problem, or a nutritional deficiency or dietetic condition, you should consult your
medical doctor, psychologist or nutritionist, as appropriate.
C. Assumption of Risk. You expressly acknowledge and agree that your access, use and/or
involvement with any OC Positive Posture Services, may involve potentially dangerous and
physical activities that may lead to personal and/or bodily injury, death, temporary or permanent
disability, loss of services, loss of consortium, or damage to or loss of property or privacy. You
hereby acknowledge and willingly accept these risks and agree to unconditionally release and
hold harmless OC Positive Posture from and against all claims, suits, damages, losses, causes of
action, costs, expenses or liability arising out of or related to your access, use and/or involvement
with OC Positive Posture Services.
7. Copyright Policy and Copyright Agent. It is OC Positive Posture's policy to respect the
copyright and other intellectual property rights of others. OC Positive Posture may remove
content from its websites or other properties that appears to infringe the copyright or other
intellectual property rights, including moral rights, of others. In addition, OC Positive Posture
may terminate access by users who appear to infringe the copyright or other intellectual property
rights of others. Further, OC Positive Posture complies with the Digital Millennium Copyright
Act.
If you believe that content available on or through the online OC Positive Posture Services, or
accessible via links posted on online OC Positive Posture Services, infringes your copyright, you
or your authorized agent may submit a notification to us, as set forth in this policy. Please send a
notification including all of the information described below (“Notification”) to our copyright
agent by mail or e-mail using the contact information provided below.
You may be held liable for damages and attorneys’ fees if you make any material
misrepresentations in a Notification. Therefore, if you are not sure whether content located on or
accessible via a link posted on the online OC Positive Posture Services infringes your copyright,
you should contact an attorney.
Please direct Notifications via email to: [email protected] or by mail to:
OC Positive Posture
501 W Broadway, Suite 600
San Diego, CA 92101
Upon receipt of a complete Notification regarding an alleged copyright violation, we will
respond expeditiously to remove, or disable access to, the material that is claimed to be
infringing. We will also terminate in appropriate circumstances users who are willful or repeat
infringers.
8. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS
ACTIONS AND CLASS ARBITRATIONS.
A. Disputes. The terms of this Section shall apply to all Disputes between you and OC Positive
Posture For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action
between you and OC Positive Posture arising under or relating to any OC Positive Posture
Services, OC Positive Posture’s websites, these Terms, or any other transaction involving you
and OC Positive Posture, whether in contract, warranty, misrepresentation, fraud, tort, intentional
tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted
to be given the broadest meaning allowable under law. YOU AND OC POSITIVE POSTURE
AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE
ANY CLAIM OR CAUSE OF ACTION BY YOU OR OC POSITIVE POSTURE FOR (i)
TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii)
COPYRIGHT INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK
INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these
Terms, you agree that a court, not the arbitrator, shall decide if a claim falls within one of
these four exceptions.
B. Binding Arbitration. You and OC Positive Posture further agree: (i) to arbitrate all Disputes
between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a
transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs
the interpretation and enforcement of this Section; and (iv) this Section shall survive termination
of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A
JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL
ARE LIMITED. The arbitrator may award you the same damages and relief as a court sitting in
proper jurisdiction could, and may award declaratory or injunctive relief. In addition, in some
instances, the costs of arbitration could exceed the costs of litigation and the right to discovery
may be more limited in arbitration than in court. The decision of the arbitrator shall be final and
enforceable by any court with jurisdiction over the parties.
C. Dispute Notice. In the event of a Dispute, you or OC Positive Posture must first send to the
other party a notice of the Dispute that shall include a written statement that sets forth the name,
address and contact information of the party giving it, the facts giving rise to the Dispute, and the
relief requested (the “Dispute Notice”). The Dispute Notice to OC Positive Posture must be
addressed to: OC Positive Posture, 501 W Broadway, Suite 600, San Diego, CA 92101 (the “OC
Positive Posture Notice Address”). The Dispute Notice to you will be sent by certified mail to
the most recent address we have on file or otherwise in our records for you. If OC Positive
Posture and you do not reach an agreement to resolve the Dispute within sixty (60) days after the
Dispute Notice is received, you or OC Positive Posture may commence an arbitration proceeding
pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us
agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
D. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
YOU AND OC POSITIVE POSTURE AGREE THAT EACH PARTY MAY BRING
DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY,
AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION
FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS.
ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS
SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE
THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL
AFFECTED PARTIES TO AN ARBITRATION PROCEEDING. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, YOU AND OC POSITIVE POSTURE
AGREE THAT NO DISPUTE SHALL PROCEED BY WAY OF CLASS ARBITRATION
WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES.
E. Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be
governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the
“JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under
the rules set forth in these Terms, except that JAMS may not administer any multiple claimant or
class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of
individual claims. If there is a conflict between the JAMS Rules and the rules set forth in these
Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all
remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes shall be
resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to
participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority
to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability
or formation of these Terms, including, but not limited to, any claim that all or any part of these
Terms is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a
court shall determine the limited question of whether a claim or cause of action is for (i) trade
secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv)
trademark infringement or dilution, which are excluded from the definition of “Disputes” as
stated above. The arbitrator shall be empowered to grant whatever relief would be available in a
court under law or in equity. The arbitrator’s award shall be binding on the parties and may be
entered as a judgment in any court of competent jurisdiction. You may choose to engage in
arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take
place in a location reasonably accessible from your primary residence, or in Orange County,
California, at your option.
F. Initiation of Arbitration Proceeding. If either you or OC Positive Posture decide to
arbitrate a Dispute, we agree to the following procedure:
i. Write a Demand for Arbitration. The demand must include a description of the Dispute and
the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration
at http://www.jamsadr.com (“Demand for Arbitration”).
ii. Send three copies of the Demand for Arbitration, plus the appropriate filing
JAMS
5 Park Plaza, Suite 400
Irvine, CA 92614, U.S.A.
iii. Send one copy of the Demand for Arbitration to the other party at the same address as the
Dispute Notice, or as otherwise agreed to by the parties.
G. Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that
explains the essential findings and conclusions on which an award, if any, is based. During the
arbitration, the amount of any settlement offer made by OC Positive Posture or you shall not be
disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or
OC Positive Posture is entitled. The discovery or exchange of non-privileged information
relevant to the Dispute may be allowed during the arbitration.
H. Arbitration Fees. You are responsible for all costs that you incur in the arbitration,
including without limitation, fees for attorneys or expert witnesses.
I. Opt-out. You may elect to opt-out (exclude yourself) from the final, binding individual
arbitration procedure and waiver of class and representative proceedings specified in these Terms
by sending a written letter to the OC Positive Posture Notice Address within thirty (30) days of
your initial assent to these Terms (including your first purchase of any OC Positive Posture
Service or use of our websites) that specifies: (i) your name; (ii) your mailing address; and (iii)
your request to be excluded from the final, binding individual arbitration procedure and waiver
of class and representative proceedings specified in this Section. In the event that you opt-out
consistent with the procedure set forth above, all other terms shall continue to apply.
K. Severability. If any provision in this Section is found to be unenforceable, that provision
shall be severed with the remainder of these Terms remaining in full force and effect. The
foregoing shall not apply to the prohibition against class or representative actions; if the
prohibition against class or representative actions is found to be unenforceable, this entire
Section shall be null and void. The terms of this Section shall otherwise survive any termination
of these Terms.
L. Exclusive Venue for Other Controversies. OC Positive Posture and you agree that any
controversy excluded from the dispute resolution procedure and class action waiver provisions in
this Section (other than an individual action filed in small claims court) shall be filed only in the
Superior Court of Orange County, California, or the United States District Court for the Central
District of California, and each party hereby irrevocably and unconditionally consents and
submits to the exclusive jurisdiction of such courts for any such controversy.
9. Indemnification; Limitation of Liability.
A. Indemnification. You agree to indemnify and hold OC Positive Posture, its parents,
subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers
harmless from and against any claim, action, demand, loss, suit, or damages (including attorneys'
fees) made or incurred by any third party arising out of or relating to your improper use of any
OC Positive Posture Services, your violation of these Terms, or your violation of any rights of a
third party.
B. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL OC POSITIVE POSTURE OR ITS SERVICE PROVIDERS, LICENSORS OR
SUPPLIERS BE LIABLE FOR SPECIAL, COMPENSATORY, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LOST PROFITS, LOST DATA OR
CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY
DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE
CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY
AND/OR IF WE WERE ADVISED OF SUCH DAMAGES OR OF ANY ADVICE OR
NOTICE GIVEN TO OC POSITIVE POSTURE OR ITS SERVICE PROVIDERS,
LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR
USE OF ANY OC POSITIVE POSTURE SERVICES. THIS LIMITATION SHALL APPLY
REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF
CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF
ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF OC POSITIVE POSTURE
AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL
CIRCUMSTANCES WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN
THE LAST NINETY (90) DAYS TO OC POSITIVE POSTURE FOR ANY OC POSITIVE
POSTURE SERVICES. YOU AGREE THAT THIS LIMITATION OF LIABILITY
REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL
ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN OC POSITIVE POSTURE AND
YOU. THE OC POSITIVE POSTURE SERVICES WOULD NOT BE PROVIDED WITHOUT
SUCH LIMITATIONS. OC POSITIVE POSTURE WILL NOT BE LIABLE FOR FAILURE
TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS
CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CIRCUMSTANCE BEYOND
ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET
OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, NATURAL DISASTER,
CIVIL UNREST OR WAR.
10. General.
A. Governing Law. You agree that the laws of the State of California, without regard to
principles of conflict of laws, will exclusively govern these Terms and Conditions and any
Dispute between you and OC Positive Posture. As the OC Positive Posture Services are
controlled by OC Positive Posture from California, California law will apply regardless of your
residence or the location where you use OC Positive Posture Services.
B. Notices. All notices required or permitted to be given under these Terms must be in writing.
OC Positive Posture may provide you notice by sending you an e-mail to the address on file with
us, which you agree electronically satisfies any legal requirement that such notice be in writing.
YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR E-MAIL
ADDRESS ON FILE WITH OC POSITIVE POSTURE IS ACCURATE AND CURRENT,
AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY OC
POSITIVE POSTURE OF AN EMAIL TO THAT ADDRESS. You shall give any notice to OC
Positive Posture by means of U.S. mail, postage prepaid, to OC Positive Posture, 501
W Broadway, Suite 600, San Diego, CA 92101. Such notice to OC Positive Posture shall be
effective upon receipt of notice by OC Positive Posture.
B. Severability. If any provision of these Terms, or a part thereof, shall be unlawful, void or for
any reason unenforceable, then that provision or part thereof shall be deemed severable from
these Terms and shall not affect the validity and enforceability of any remaining provisions or
parts thereof.
C. Termination. Notwithstanding anything to the contrary in these Terms, OC Positive Posture
reserves the right, without notice and in its sole and absolute discretion, for any reason or no
reason, to terminate your access and use of any OC Positive Posture Services, including to block
or prevent your access and use of any of our websites. You agree that OC Positive Posture shall
not be liable for any interruption or termination of your access and/or use of our websites.
D. No Third Party Beneficiaries. Except as set forth in these Terms, only you and OC Positive
Posture may enforce these Terms; no third party shall be entitled to enforce these Terms.
E. Survival. The provisions of these Terms which by their nature should survive the
termination of these Terms shall survive such termination.
F. Waiver. No waiver of any provision of these Terms by us shall be deemed a further or
continuing waiver of such provision or any other provision, and our failure to assert any right or
provision under these Terms shall not constitute a waiver of such right or provision. Any waiver
must be in writing signed by OC Positive Posture in order to be effective.
G. Assignment. OC Positive Posture may assign these Terms to any person or entity at any
time, for any reason, with or without notice to you.
H. Amendments; Entire Agreement. These Terms may not be amended unless in a signed
writing by OC Positive Posture. These Terms constitute the final, exclusive and complete
agreement between you and OC Positive Posture regarding the subject matter hereof and
supersede all agreements, communications and course of dealings between you and OC Positive
Posture.
J. Language. It is the express intent of the parties that these Terms and all related documents
have been written in English.
[END OF TERMS]