Ola Ka Ola Terms of Service
Last Updated: 4/20/2021
Welcome to Ola Ka Ola! Please read these Terms of Service (the “Terms”) carefully because they govern your use of the website located at https://olakaola.com (the “Site”) and the services accessible via the Site offered by Ola Ka Ola, Inc. (“ Ola Ka Ola,"" “ we,” “ us,” and “ our”). To make these Terms easier to read, the Site and our services are collectively called the “ Services.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND OLA KA OLA THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
Disclaimer. Please review our Medical Disclaimer (https://www.olakaola.com/disclaimer). ("Disclaimer")
Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Ola Ka Ola, and not otherwise barred from using the Services under applicable law.
How Our Services Work?
(a) General. Our Services may allow you to access a synchronous class, performance or other activity led by other user(s) of the Services (a “Fitness Session”). In such cases, you will be a “Participant” and any user leading the Fitness Session will be a “Host”. Our role in this process is solely to provide the technology and platform that enables this connection. Enrollment and participation in Fitness Sessions involve a direct relationship between a Host and a Participant. Ola Ka Ola is not a party to any agreements between Hosts and Participants with respect to Fitness Sessions, and does not have control over and disclaims all liability for the content, quality, timing, legality, failure to provide or any other aspect whatsoever of any Live Sessions created by Hosts. We make no representations about the suitability, reliability or accuracy of the Fitness Sessions created by Hosts. While we may include certain ratings and badges on some Host profiles on the Site, these ratings and badges are not a warranty or guarantee regarding the quality, ability or availability of such Hosts. Notwithstanding the foregoing, we serve as the limited authorized agent of Hosts for the purpose of accepting payments from Participants on behalf of the Hosts and are responsible for transmitting such payments to the Hosts. Ola Ka Ola’s responsibilities are limited to: (i) facilitating the availability of the Services; and (ii) serving as the limited agent of each Host as described above. Hosts and Participants agree not to circumvent use of the Services to connect with one another for participation in a Fitness Session.
(b) Host’s Responsibilities. As Host, you must comply with all rules and guidelines set by Ola Ka Ola with respect to Fitness Session creation. You agree to use best efforts to continuously and diligently monitor and supervise Participants’ participation in the Fitness Session.
(c) Relationship of the Parties. Hosts are independent contractors and not employees of Ola Ka Ola and Hosts will not be considered an employee of Ola Ka Ola for any purpose and if you are a Host, you expressly waive any claim for employment benefits of any kind from Ola Ka Ola. You acknowledge that Ola Ka Ola does not, in any way, supervise, direct or control a Host or such Host’s work created in relation to the Fitness sessions. Ola Ka Ola does not set a Host’s work hours or location of work. If you are a Host, you agree to indemnify, hold harmless and defend Ola Ka Ola from any and all claims that you as a Host were misclassified as an independent contractor and obligation imposed by law on Ola Ka Ola to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with any compensation received by Host in connection with leading a Fitness session or other performance of its obligations for Ola Ka Ola.
(d) Disputes and Release. Because Ola Ka Ola is not party to any agreement or interactions between Hosts and Participants, in the event that you have a dispute with one or more Hosts or Participants, you agree to address such dispute directly with such Host(s) and/or Participant(s) and you release Ola Ka Ola and our affiliates, officers, directors, agents, investors, subsidiaries and employees from any and all claims, demands or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If a dispute arises between a Host and a Participant in connection with a Fitness Session, Ola Ka Ola may, in our sole discretion, facilitate communications between such Host and Participant in connection with such dispute. If such a dispute is unable to be resolved between such Host and Participant, Ola Ka Ola may, in our sole discretion, intervene in such dispute and take any actions we deem appropriate. (e) If you are a Participant that subscribes to The Ongoing Program by Ola Ka Ola, Ola Ka Ola will provide you with fitness equipment that can be used during a Fitness session. You are solely responsible for your use of such equipment and Ola Ka Ola will not be liable and you hereby waive any right to seek damages from or other claims, injuries, losses or damages related to or arising from such equipment, including your of such equipment.
Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
(a) General. As a Participant, you expressly authorize us through our third-party payment processor (“Payment Processor”) to charge you for each transaction you engage in to participate in a Fitness session or subscribe to The Ongoing Program by Ola Ka Ola. Our Payment Processor may ask you to supply additional information relevant to your transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You will provide all Payment Information directly to our Payment Processor. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a transaction, you authorize our Payment Processor to provide your Payment Information to third parties in order to complete your transaction and charge your payment method for the transaction (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your transaction (such information is included within the definition of Payment Information). By initiating a transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for transactions are non-refundable and non- transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
(b) The Ongoing Program Fees. In the event you subscribe to The Ongoing Program by Ola Ka Ola, we will put you on a recurring payment plan that charges you the fees for the subscription (”Ola Ka Ola Fees”) in advance for each month of the Subscription Term (”billing cycle”). If you do not cancel your subscription prior to the end of the current billing cycle in accordance with our Cancellation Policy (as described in Section 8 below), you will be automatically charged the then-current Fees for the subscription at the start of the following billing cycle. You acknowledge that if you fail to make any payment when due, we may immediately suspend, and/or terminate these Terms and/or the Services and your subscription to The Ongoing Program, and impose a late charge on all payments in the maximum amount permitted by applicable law. All Fees (defined below) set forth on the Site are in U.S. Dollars and are non-refundable, except for any charges that we explicitly identify as refundable on the Site.
(c) Automatic Renewals for The Ongoing Program. For your convenience, your paid subscription will be automatically renewed unless a cancellation request is received prior to your renewal period. Subscriptions are monthly and automatically renew for additional monthly periods for which you signed up for (“Subscription Term”). Please note that we do not send notifications before or at the time of subscription renewal unless there will be a change to the Fees. We do not offer refunds on charges for subscription renewals.
(d) Fitness Session Fees. In addition, Participant agrees to pay the applicable fees for participation in the Fitness Sessions which fees will be communicated to you via the Services before you make a purchase for such participation (each, a “Fitness Session Fee” and collectively with The Ongoing Program Fees, the “Fees”), together with applicable taxes, if any. Ola Ka Ola does not set the Fitness Session Fees for any Fitness Sessions; the Host determines the Fitness Session Fee.
(e) Pelvic Floor Restore Program Fees. The Pelvic Floor Restore Program is separated from the Ongoing Program. The Pelvic Floor restore Program Fee is a one time payment that provides you with a lifetime access to the program (the pelvic Floor Restore Program Fee, a “Fitness Session Fee” and collectively with The Ongoing Program Fees , the “Fees”).
(f) Ola Ka Ola Service Fee. If you are a Host, you hereby authorize us and our Payment Processor to collect fees payable to you for the Fitness Sessions, which will be included in the Fitness Session Fees, from Participants on your behalf before such Participants’ access to such Fitness Session and such fees will be remitted to you pursuant to these Terms and Section 7(f). Ola Ka Ola will not, under any circumstances, be liable to a Host if a Participant has not paid for the relevant Fitness Session.
(g) Payments to Hosts. All funds due to Hosts for Fitness Sessions (as applicable) will be remitted to Hosts at a payment cadence communicated to Hosts by us or by our Payment Processor on our behalf. All payments remitted to Hosts will be provided in United States Dollars. Hosts are solely responsible for all costs incurred by them in using the Services and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes. Funds will only be remitted to Hosts when payments have actually collected payment from the applicable Participant. We may institute a chargeback policy as we deem appropriate in the event that a Participant or such Participant’s bank does not honor a payment obligation or if Ola Ka Ola or our Payment Processor questions our ability to collect funds from a Participant.
(h) Changes to Fees. Ola Ka Ola, in its sole discretion, may change the Fees for the Services including the subscriptions for The Ongoing Program by Ola Ka Ola. Any such changes will become effective at the end of the then-current billing cycle. We will provide Participants who are subscribed to the Services including the subscriptions for The Ongoing Program by Ola Ka Ola with reasonable prior notice of any change in Fees to give you an opportunity to terminate the Services before such change becomes effective.
Cancellation Policy. IF YOU’RE A PARTICIPANT, YOU MAY ONLY CANCEL A TRANSACTION PURSUANT THE POLICIES AS COMMUNICATED TO YOU BY US OR BY OUR PAYMENT PROCESSOR OR OTHERWISE AS SET FORTH BELOW WITH RESPECT TO YOUR SUBSCRIPTION TO THE ONGOING PROGRAM BY OLA KA OLA. TO CANCEL A SUBSCRIPTION, YOU CAN CLICK ON MANAGE SUBSCRIPTIONS. By signing up for a paid The Ongoing Program by Ola Ka Ola subscription, you are agreeing to take responsibility for cancelling your subscription before any renewal charge.
IMPORTANT: If you anticipate cancelling your subscription before its renewal date for any reason, please complete the cancellation process and set your subscription to cancel at the end of the billing cycle. You can always reactivate your subscription at a later time.
If a renewal charge is processed before you cancel your subscription, we will not be able to refund it. You, as an Ola Ka Ola customer, are required to agree to this cancellation policy when you sign up for The Ongoing Program.
If you have a question about any charge from Ola Ka Ola, please email us at firstname.lastname@example.org to chat with us.
Cancellations of the current subscription take effect at the end of the current billing cycle.
For example, if your monthly subscription period ends on the 15th of every month, and you cancel on the 20th, you'll continue to have full access until the 15th of the following month, but you won’t be charged.
(a) Posting Content. Our Services may allow you to store or share content such as text (in posts or communications with others), documents, graphics, images, music, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. Ola Ka Ola does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
(b) Permissions to Your User Content. By making any User Content available through the Services you hereby grant to Ola Ka Ola a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, reformat, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services, including making the Fitness Sessions available via the Services.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Ola Ka Ola on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(d) Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. Fitness Sessions are live so you will not be able to remove a Fitness Session after it has occurred.
(e) Ola Ka Ola’s Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
Rights and Terms for Our Services. If you comply with these Terms, Ola Ka Ola grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to use and run the Site on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices solely to access our Services. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on our Services; (ii) distribute, transfer, sublicense, lease, lend or rent our Services to any third party; (iii) reverse engineer, decompile or disassemble our Services (unless applicable law permits, despite this limitation); or (iv) make the functionality of our Services available to multiple users through any means.
General Prohibitions and Ola Ka Ola’s Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Ola Ka Ola’s name, any Ola Ka Ola trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Ola Ka Ola’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Ola Ka Ola’s computer systems, or the technical delivery systems of Ola Ka Ola’s providers; (d) Attempt to probe, scan or test the vulnerability of any Ola Ka Ola system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Ola Ka Ola or any of Ola Ka Ola’s providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Ola Ka Ola or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing a Ola Ka Ola trademark, logo URL or product name without Ola Ka Ola’s express written consent;
(i) Use the Services, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source- identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail- bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Violate any applicable law or regulation; or
(p) Encourage or enable any other individual to do any of the foregoing.
Ola Ka Ola is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content and Live Sessions, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
DMCA/Copyright Policy. Ola Ka Ola respects copyright law and expects its users to do the same. It is Ola Ka Ola’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Ola Ka Ola’s Copyright Policy at https://olakaola.com/copyrights, for further information.
Links to Third Party Websites or Resources. The Services (including the Site) may allow you to access third-party websites or other resources like Zoom or Stripe, among others. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources, including your use of Zoom to lead any Fitness Session. OLA KA OLA DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WITH RESPECT TO THE SERVICES PROVIDED BY SUCH THIRD PARTIES.
Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 7(a), 7(c) (only for payments due and owing to Ola Ka Ola prior to the termination), 8(b), 8(c), 8(e), 13, 14, 15, 16, 17, 18 and 19.
(a) General. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.
(b) No Liability for User Conduct. NEITHER OLA KA OLA NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE SERVICES. OLA KA OLA DOES NOT RECOMMEND ANY PARTICULAR LIVE SESSION OR HOST. OLA KA OLA DOES NOT PROVIDE WARRANTIES OR GUARANTEES REGARDING ANY HOST’S PROFESSIONAL ACCREDITATION, REGISTRATION, OR LICENSE.
Indemnity. You will indemnify and hold Ola Ka Ola and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OLA KA OLA NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OLA KA OLA OR ITS SERVICE PROVIDERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL OLA KA OLA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO OLA KA OLA FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO OLA KA OLA, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OLA KA OLA AND YOU.
Waiver and Release of Liability.
(a) Assumption of Risk. As a Participant and/or Host, I understand that the Fitness sessions may be strenuous and may require me to do bodily or other physical movement that I am not familiar with in order to improve overall fitness. I KNOW THAT THERE MAY BE RISKS ASSOCIATED WITH THE FITNESS SESSIONS AND I ASSUME FULL RESPONSIBILITY FOR ANY RISKS, INJURIES OR DAMAGE, KNOWN OR UNKNOWN, WHICH I MIGHT INCUR AS A RESULT OF PARTICIPATING IN THE EXERCISE PROGRAM, INCLUDING, BUT NOT LIMITED TO, DIZZINESS, HEADACHES, HEART ATTACKS, MUSCLE STRAINS, MUSCLE PULLS, MUSCLE, LIGAMENT OR TENDON TEARS, BROKEN BONES, SHIN SPLINTS, HEAT PROSTRATION, INJURIES TO BACK, NECK, KNEE, LEG, FOOT, ARM, HAND OR OTHER BODY PART, OR ANY OTHER INJURY, ILLNESS OR SORENESS, INCLUDING DEATH.
(b) Ability to Participate in Fitness Sessions. I represent and warrant that I am physically fit and mentally capable of performing the activities in any Fitness session in which I choose to participate or lead. I understand that I am responsible for monitoring my own safety, health and medical condition(s) while participating in the Fitness sessions and, to the extent I deem advisable, I will consult with a physician before participating in the Fitness sessions. Should any unusual or concerning symptoms occur while I am participating in the Fitness sessions, I will immediately stop until such symptoms have resolved or I have sought appropriate medical consultation.
(c) Waiver and General Release of All Claims. IN VIEW OF THE ABOVE-MENTIONED RISKS AND THE FACT THAT I AM WILLINGLY PARTICIPATING IN OR LEADING THE FITNESS SESSIONS, I, MY SUCCESSORS, ASSIGNEES, HEIRS, INSURERS, AGENTS, GUARDIANS AND LEGAL REPRESENTATIVES HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY RELEASE, WAIVE, COVENANT NOT TO SUE, AND HOLD OLAKAOLA INC., ITS AFFILIATES, LICENSEES, AND ASSIGNEES, AND THE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS OF ALL SUCH ENTITIES (COLLECTIVELY, “RELEASEES”) HARMLESS FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS OR DEMANDS FOR MY PERSONAL INJURY, SICKNESS AND/OR DISEASE, PROPERTY DAMAGE OR WRONGFUL DEATH, CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, ARISING OUT OF OR RELATED TO MY PARTICIPATION IN OR LEADING OF THE FITNESS SESSIONS. I HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS THE RELEASEES FROM ANY AND ALL LIABILITIES OR CLAIMS MADE BY THIRD PARTIES (INCLUDING INDIVIDUALS OR ENTITIES) RESULTING OR ARISING FROM MY ACTS OR OMISSIONS DURING OR RELATING TO MY PARTICIPATION IN OR LEADING OF THE FITNESS SESSIONS.
Disclaimer Regarding Nutrition Tips. We may provide tips and suggestions relating to nutrition and healthy eating as part of The Ongoing Program by Ola Ka Ola (“Nutrition Tips”). Please be advised that these Nutrition Tips have not been reviewed by persons with the expertise required to provide you with complete, accurate, or reliable information. Ola Ka Ola does not (a) guarantee the usefulness of or any results relating to any advice or recommendations or other statements in the Nutrition Tips or (b) adopt, endorse or accept responsibility for the accuracy or reliability of any such Nutrition Tips. To the extent permitted by applicable law, under no circumstances will Ola Ka Ola be responsible or liable for any loss or damage resulting from your reliance on Nutrition Tips.
Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 21 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Ola Ka Ola are not required to arbitrate will be the state and federal courts located in the San Francisco, California, and you and Ola Ka Ola each waive any objection to jurisdiction and venue in such courts.
(a) 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 Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Ola Ka Ola agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Ola Ka Ola 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.
(b) Exceptions. As limited exceptions to Section 21(a) above: (i) we both 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.
(c) 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 www.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. 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.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll 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.
(e) Injunctive and Declaratory Relief. Except as provided in Section 21(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND OLA KA OLA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS 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 Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 21(f) of these Terms ("Class Action Waiver"), 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.
(a) Reservation of Rights. Ola Ka Ola and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Ola Ka Ola and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Ola Ka Ola and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Ola Ka Ola’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Ola Ka Ola may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(c) Notices. Any notices or other communications provided by Ola Ka Ola under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Ola Ka Ola’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Ola Ka Ola. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Contact Information. If you have any questions about these Terms or the Services, please contact Ola Ka Ola at firstname.lastname@example.org.