By accessing this web site, you (hereinafter “Individual”) are entering into this Agreement with Beyond Barre, LLC a New York Limited Liability Company with an address at: 129 Route 94 South Suite 2 Warwick, NY 10990 (hereinafter “BeyondBarre”).
(a) Beyond Barre is the exclusive licensee of the proprietary exercise system known as “BeyondBarre,” which uses a ballet barre, glide board and movement to choreographed moves (hereinafter the “Methodology”).
(b) Individual enters into this Agreement with Beyond Barre (i) to train for qualification as a teacher of the Methodology to the general public, (ii) to become a member of BeyondBarre’s community of instructors and training centers (the “BeyondBarre Connections”), and (iii) to teach the Methodology and use the trademarks associated therewith.
1. Term. The Term of this Agreement shall consist of an “Initial Period” commencing on the Effective Date and ending upon one (1) year from Individual’s completion of the BeyondBarre Basics Fundamental Training. Upon the expiration of the Initial Period, the Term shall automatically renew from month to month (each month being a “Renewal Period”) until terminated in accordance with paragraph 7 below.
2. Membership Fee.
(a) After completion of the BeyondBarre Basics Fundamental Training, Individual shall become a member of the BeyondBarre Connections
(b) for a minimum of one (1) year (“Minimum Membership Period”) and shall pay Beyond Barre membership fees (“Membership Fee(s)”) in the amount of twenty-nine ($29.00) dollars per month, which sum shall be charged automatically to Individual’s credit card as provided on Individual’s BeyondBarre Application Form. Beyond Barre reserves the right, in its sole discretion, to change the Membership Fee or to modify or impose additional conditions of membership (“Changes”) at any time upon sixty (60) days notice. Beyond Barre shall not be required to notify Individual personally of such Changes, but shall post same on its website at www.beyondbarre.com. Individual acknowledges and agrees that posting on the website shall constitute sufficient notice and such notice shall have the effect of modifying the terms and conditions of this Agreement in accordance with the Changes on the date such Changes become effective. In the event that Individual does not accept any of the Changes, his or her sole remedy shall be voluntarily to cancel his or her membership, thereby terminating the term of this Agreement.
(c) In the event Instructor is delinquent in the payment of any Membership Fee, Individual’s account and listings with BeyondBarre Connections and BeyondBarre Instructor Directory shall be deactivated and Instructor shall be considered ineligible to teach the Methodology until such time as any delinquent and current fees are paid. Should Individual’s account be deactivated for more than one (1) year, Individual may only be reinstated as a member (and thus qualified to teach the Methodology) by attending a Fundamental Training course.
1. Grant of Rights.
(a) Grant of Rights. Conditioned upon Individual’s compliance with all the terms and conditions of this Agreement, Beyond Barre grants to Individual during the Term a non-exclusive, nontransferable right and license:
(i) to teach the Methodology to the general public in classes at any licensed Beyond Barre Fitness Center, exercise or dance studio or facility at the level for which Individual has been trained by Beyond Barre (i.e., BeyondBarre Basics, Level 1, Level 2 or BeyondBarre Pilates Fusion Fundamental Trainings);
(ii) to use, display and publicize the “Marks” (as hereinafter defined) in connection with teaching the Methodology to the general public; and,
(iii) to use and duplicate the “Licensed Materials” (as hereinafter defined) in connection with presenting classes in the Methodology and to display only those Licensed Materials which Licensor indicates are not Confidential Information (as hereinafter defined).
(b) Additional Benefits of Membership. Membership shall further entitle Individual
(ii) to have access to the BeyondBarre Connections page, which will have:
(A) Choreography updates
(B) A ten percent (10%) discount on BeyondBarre Glide Boards
(C) Marketing Postcard
1. Obligations of Individual.
(a) Presentation of Classes.
(i) Individual shall at all times teach the Methodology in a professional manner and in accordance with Beyond Barre’s most recent instructions.
(ii) Student Agreements. Individual shall cooperate with the studio or facility in which Individual is teaching the Methodology to ensure that prior to participation in any class or series of classes, each student executes a Student Waiver in the form attached as Exhibit B.
(iii) Safety. Individual shall at all times conduct all classes in a safe manner. Without limiting the generality of the foregoing,
(A) Individual shall not use any equipment, which Individual believes not to be functioning properly or is in an unsafe condition;
(B) Individual shall, when using the Glide Boards, (I) wear appropriate footwear (e.g., canvas ballet slippers), and require the same of all students; and (II) ensure that the gliding surface is clean and dry; the stoppers are splinter free and attached securely to the Glide Board; the bumpers are securely attached to the stoppers and do not have any cracks or tears; Glide Boards are placed on non-skid surfaces to prevent unintended movement during use; and no one walks across the Glide Boards.
(b) Observation and Inspection. Individual shall at all times allow Beyond Barre to observe any class or instruction in the Methodology given by Individual to ensure Individual’s compliance with her/his obligations under this Agreement.
(c) Insurance. Individual shall maintain, and shall provide evidence to Licensor of liability insurance and professional liability insurance issued by a carrier duly licensed and such insurance to afford minimum liability coverage of $1,000,000.00 per occurrence and $2,000,000.00 annually in aggregate. Such insurance policy or policies shall name Licensor as an additional insured and shall provide notice to Licensor in any change or loss in coverage.
(d) Franchise. In the event that Beyond Barre establishes a franchise which includes use of the Methodology and “BeyondBarre” trademark, Individual shall execute a Franchise Agreement and such other documents as Beyond Barre deems necessary to comply with all legal requirements with respect thereto, provided that such Franchise Agreement shall, unless prohibited by applicable franchise laws, contain the same material terms and conditions as are contained in this Agreement.
1. Intellectual Property.
(a) Ownership. Beyond Barre is the exclusive licensee of certain intellectual property (hereinafter sometimes collectively referred to in this Agreement as “Beyond Barre IP”), to wit,
(i) the Methodology;
(ii) trademarks, trade names and service marks of developed, adopted and used by Beyond Barre during the Term of this Agreement, including but not limited to “BeyondBarre Wellness” and “Beyond Barre” (hereinafter the “Marks”);
(iii) the instruction and marketing materials, website content and other information produced, printed, published and distributed by Beyond Barre, including without limitation the BeyondBarre postcards, posters, business cards and web banners (hereinafter “Licensed Materials”); and
(iv) “Confidential Information” which, as used in this Agreement, shall mean all oral and written materials pertaining to or otherwise used by Beyond Barre in its training program, information relating to Beyond Barre, its business methods, training programs, methods of operation, business strategies, marketing and business plans, business procedures, and all other materials, oral and written, which are disclosed pursuant to this Agreement, irrespective of whether such materials are labeled “Confidential Information.” Notwithstanding any of the foregoing, information shall not be deemed to be Confidential Information when it (A) is public knowledge; (B) is made available to the general public by Beyond Barre or a third party who is in lawful possession of such information; (C) was previously known to Individual free of any obligation to keep it confidential, provided that Individual has documentary proof of the existence of such prior knowledge; of (D) is independently developed by a third party.
(b) General Provisions With Respect to Beyond Barre IP. With Respect to Beyond Barre IP. Individual acknowledges and agrees that (i) the Beyond Barre IP and all copies thereof are the exclusive property of Beyond Barre and that all right, title and interest in and to the Beyond Barre IP shall at all times be vested in Beyond Barre and inure solely to Beyond Barre’s benefit; and (ii) Individual has no rights in or to the Beyond Barre IP except as expressly granted in this Agreement.
(c) Protection of Confidential Information and Licensed Materials. Individual acknowledges and agrees that Confidential Information and certain Licensed Materials contain trade secrets which have been developed or acquired by Beyond Barre through the expenditure of a great deal of time and money. Consequently, at all times, Individual shall take all reasonable steps to prevent Confidential Information and Licensed Materials from being used, reproduced, published, disclosed or distributed except as expressly authorized in this Agreement. Without limiting the generality of the foregoing, such reasonable steps by Individual shall include preventing Confidential Information or Licensed Materials from being misappropriated; advising all of Individual’s employees, third party contractors and all others having access to Confidential Information or Licensed Materials of Beyond Barre’s rights under this Agreement; and reporting to Beyond Barre any unauthorized reproduction, publication, disclosure or distribution of Confidential Information or Licensed Materials, whether or not inadvertent.
(d) Special Provisions Related to the Marks.
(i) Use of the Marks.
(A) The nature and quality of Individual’s use of the Marks shall conform to the standards set by and under the control of Beyond Barre for all goods licensed or sold by Individual in connection with the Marks; all services rendered by Individual in connection with the Marks; and all related advertising, promotional and other authorized uses of the Marks.
(B) Individual shall cooperate with Beyond Barre in facilitating Beyond Barre’s control of the nature and quality of Individual’s use of the Marks;
(C) Individual shall use the Marks only in the form and manner and with appropriate legends as are prescribed by Beyond Barre from time to time;
(D) Individual shall permit inspection of Individual’s operation as provided in paragraphs 5(b) above and 6(f) below; and
(E) Individual shall supply Beyond Barre with specimens of all uses of the Marks upon Beyond Barre’s request.
(ii) Prohibitions. Individual warrants and covenants that:
(A) it shall not use the Marks in the name of its business.
(B) it will not do anything inconsistent with Beyond Barre’s exclusive control of the Marks;
(C) all use of the Marks by Individual shall inure to the benefit of and be on behalf of Beyond Barre;
(D) it will not attack the title or any other rights of Beyond Barre in and to the Marks;
(E) it will not attack the validity of this Agreement;
(F) it will never use, adopt or register, or attempt to register a trademark, trade name or service mark, or a foreign language equivalent or transliteration that is identical or confusingly similar to the Marks in any country; and
(G) it shall make no use of the Marks except as expressly authorized herein or in writing by Beyond Barre. From time to time Beyond Barre may grant specific written authorization to Individual to post videos on the Internet using the Marks for promotional purposes.
(e) Notices. Individual shall not remove, alter, cover or distort any copyright notice, trademark or other proprietary rights notice placed by Beyond Barre in or on Beyond Barre IP and shall ensure that all such notices are reproduced on all authorized copies of Beyond Barre IP made by Individual.
(f) Inspection for Compliance. At all times during the Term, Beyond Barre shall have the right to inspect any materials used by Individual to teach the Methodology (including without limitations any hand-outs for students) or to advertise Individual’s services with respect to the Methodology. Individual shall cure any breach of or deficiency in compliance with requirements set forth in paragraph 6(d) above immediately upon written notification by Beyond Barre of such breach or deficiency.
(g) Infringement Notification and Cooperation. Individual agrees to notify Beyond Barre promptly should Individual become aware of any unauthorized use of the Marks by a third party. Beyond Barre shall have the sole right to decide when and whether to initiate proceedings for any such unauthorized uses and shall have the right to retain any and all proceeds which may be derived there from. Individual shall cooperate with Beyond Barre in enforcing and protecting its Marks.
(h) Special Provisions Related to Promotional Videos Created by Individual. Individual shall have the right to create promotional video clips (“Videos”) of up to two minutes and thirty seconds (2:30) each which show Individual demonstrating classes in or exercises which are part of the Methodology, provided, however, that such Videos comply with the following terms and conditions:
(A) Videos shall be used solely for promotional purposes and shall not be sold, leased, licensed, exchanged or otherwise exploited for monetary consideration;
(B) No class participants shall be shown in any Video unless Individual has first obtained written releases from each such participant, the contents of which releases are subject to Beyond Barre’s approval;
(C) If Individual titles any Video, such title shall be “BeyondBarre® class with [name of Individual];”
(D) No video shall contain any music unless a license for such use has been obtained and a copy of such license has been furnished to Beyond Barre. Popular music is not free to use in Videos just because it is freely available on the Internet;
(E) Videos may be streamed only on Individual’s personal website, a recognized video website such as YouTube® or a recognized social networking site such as Facebook®. Videos shall not be streamed, published or distributed in any other manner or media;
(F) Individual shall not include content in any Video which may dilute, disparage, or is otherwise detrimental to the Marks or the BeyondBarre brand. If in doubt, Individual should always seek Beyond Barre’s opinion; and
(G) Beyond Barre reserves the right, in its sole discretion and for any reason, to have removed or require that Individual remove any Video from the Internet.
1. Termination Events.
(a) Upon the occurrence of any of the following events or circumstances, Individual shall be in default under this Agreement and Beyond Barre may, at its sole option, terminate the Term:
(i) if Individual fails to pay any Membership Fee or installment when due;
(ii) if at any time, Individual fails to maintain the confidentiality of Confidential Information as provided in paragraph 6(c) above;
(iii) if Individual fails to comply with its obligation pursuant to paragraph 6(f) above; or
(iv) if Individual is in default of any other material term or condition of this Agreement and fails to cure same within thirty (30) days following written notice by Beyond Barre to Individual.
(b) Notwithstanding any other provision of this Agreement, Beyond Barre shall have the right to terminate the Term and cancel Individual’s membership at any time, with or without cause, by giving Individual written notice of termination, which shall be effective as of the end of the month during which such notice is given.
(c) Except where a right of notice and cure is expressly provided, termination by Beyond Barre as provided in paragraph 7(a) above shall be effective immediately upon notice to Individual without providing Individual any opportunity to cure the default.
(d) Individual may terminate the Term and cancel his/her membership at any time, provided, however, that if s/he terminates:
(i) During the Minimum Membership Period, s/he shall pay a termination fee in the sum of Ten U.S. Dollars ($10.00) for each month remaining in such Minimum Membership Period. By way of illustration, if Individual cancels his/her membership in the 8th month of the Minimum Membership Period, s/he shall be obligated to pay Beyond Barre the sum of $40.00; or
(ii) During any Renewal Period for which s/he has not paid a Membership Fee, s/he shall nevertheless be responsible for payment of such Membership Fee (and membership shall remain active until the last day of such Renewal Period).
(e) Such sums which Individual is obligated to pay pursuant to paragraph 7(d)(i) and (d)(ii) above shall be due immediately and Individual hereby authorizes Beyond Barre to charge same to Individual’s credit card as provided on Individual’s BeyondBarre Application Form.
(i) As stated previously there will be no requirement of individual for payment of any additional fees for 1 year.
1. Actions Upon Expiration or Termination.
(a) Upon expiration or termination of the Term, all Beyond Barre IP in or under Individual’s possession or control shall be returned to Beyond Barre or destroyed at Beyond Barre’s direction. Failure to return all such Beyond Barre IP shall result in a claim for damages by Beyond Barre for their return. As liquidated damages for the failure of Individual to return such Beyond Barre IP, Individual shall pay Beyond Barre the sum of fifty U.S. dollars (US$50.00) per day commencing upon termination or expiration of this Agreement and ending only at such time as Individual returns all of the Beyond Barre IP in or under Individual’s possession or control.
(b) Upon expiration or termination of the Term, all licenses, grants and consents given by Beyond Barre to Individual, whether pursuant to this Agreement or otherwise, shall also be deemed expired or terminated, as the case may be.
1. Non-Competition. Individual agrees and covenants that due to the confidential and sensitive nature of the Confidential Information and because the use of, or even the appearance of the use of, the Confidential Information in certain circumstances may cause irreparable injury or damage to Beyond Barre and its reputation, or to Beyond Barre’s Licensees and Authorized Instructor and their respective clients and prospective clients, Individual shall not, until the expiration of eighteen (18) months following the expiration or termination of the Term, provide or enter into any agreement with any third party to provide or teach classes which are substantially similar in nature to the Methodology. Individual further agrees and covenants that the foregoing limitation of non-competition is very narrow and limited in time, scope and geography.
2. Injunctive Relief. Individual acknowledges and agrees that any breach or threatened breach of paragraphs 6, 8, and 9 above may give rise to irreparable injury to Beyond Barre. Consequently, without limiting any other remedy to which Beyond Barre may be entitled as the result of such breach or threatened breach, Individual acknowledges and agrees that Beyond Barre shall be entitled to appropriate injunctive relief and shall not be required to post a bond in order to secure such relief.
3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BEYOND BARRE MAKES NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. WAIVER AND RELEASE: IN CONSIDERATION OF THE ACCEPTANCE OF INDIVIDUAL’S PARTICIPATION IN BEYOND BARRE’S TRAINING PROGRAM AND, IF APPLICABLE, THE ACCEPTANCE OF INDIVIDUAL AS AN AUTHORIZED INSTRUCTOR, INDIVIDUAL HEREBY WAIVES ANY LIABILITY BEYOND BARRE MAY HAVE ARISING OUT OF OR IN CONNECTION THEREWITH. INDIVIDUAL ACKNOWLEDGES THAT S/HE HAS BEEN GIVEN THE RULES AND REGULATIONS OF THE TRAINING PROGRAM AND, IF APPLICABLE, THOSE RELEVANT TO HER/HIS STATUS AS AN AUTHORIZED INSTRUCTOR, AND HEREBY AGREES TO HOLD HARMLESS AND DISCHARGE BEYOND BARRE AND ITS PRINCIPALS, PARENTS, SUBSIDIARIES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS AND AGENTS (“RELATED PARTIES”) FROM ANY AND ALL LIABILITY WHATSOEVER, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY, LOSS OF EMPLOYMENT, BUSINESS OR OPPORTUNITY, AND LOSS OF PERSONAL PROPERTY, ARISING FROM OR RELATED TO HER/HIS PARTICIPATION IN THE PROGRAM OR HER/HIS ACTS OR OMISSIONS AS AN AUTHORIZED INSTRUCTOR. BECAUSE PHYSICAL EXERCISE CAN BE STRENUOUS AND SUBJECT TO RISK OF SERIOUS INJURY, BEYOND BARRE URGES INDIVIDUAL TO OBTAIN A PHYSICAL EXAMINATION FROM A DOCTOR BEFORE PARTICIPATING IN THE PROGRAM OR BECOMING AN AUTHORIZED INSTRUCTOR. INDIVIDUAL AGREES THAT BY PARTICIPATING IN TRAINING AND TEACHING ACTIVITIES, S/HE DOES SO ENTIRELY AT HER/HIS OWN RISK. INDIVIDUAL AGREES THAT ALL OF HER/HIS ACTS OR OMISSIONS ENGAGED IN PURSUANT TO THIS AGREEMENT ARE VOLUNTARY AND THAT S/HE ASSUMES ALL RISKS, INCLUDING BUT NOT LIMITED TO RISK OF INJURY, ILLNESS, DEATH, LOSS OF EMPLOYMENT, BUSINESS OR OPPORTUNITY, AND LOSS OF PERSONAL PROPERTY. INDIVIDUAL ACKNOWLEDGES AND COVENANTS THAT INDIVIDUAL HAS READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTANDS THAT S/HE IS COMPLETELY RELEASING BEYOND BARRE FROM ANY AND ALL LIABILITIES. INDIVIDUAL EXPRESSLY RELEASES AND DISCHARGES BEYOND BARRE AND ALL RELATED PARTIES AND VOLUNTARILY GIVES UP OR WAIVES ANY RIGHT THAT INDIVIDUAL MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST ANY OF THE FOREGOING FOR ANY INJURY OR DAMAGE OF WHATEVER KIND OR NATURE. TO THE EXTENT THAT STATUTE OR CASE LAW DOES NOT PROHIBIT RELEASES FOR NEGLIGENCE, THIS “WAIVER AND RELEASE” SHALL ALSO COVER AND INCLUDE NEGLIGENCE AND ANY LEGAL THEORY BASED UPON NEGLIGENCE. IF ANY PORTION OF THIS RELEASE FROM LIABILITY SHALL BE DEEMED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID AND/OR UNENFORCEABLE, THEN THE REMAINDER OF THIS “WAIVER AND RELEASE” SHALL REMAIN IN FULL FORCE AND EFFECT AND THE OFFENDING PROVISION OR PROVISIONS SEVERED HEREFROM. BY SIGNING THIS AGREEMENT, INDIVIDUAL ACKNOWLEDGES THAT S/HE UNDERSTANDS THE CONTENTS OF THIS “WAIVER AND RELEASE” AND THAT THIS “WAIVER AND RELEASE” CANNOT BE MODIFIED ORALLY.
5. LIMITATION OF LIABILITY. WITHOUT LIMITING THE GENERALITY OF THE “WAIVER AND RELEASE” CONTAINED IN PARAGRAPH 12 above, BEYOND BARRE’S LIABILITY TO INDIVIDUAL SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY CAUSED BY BEYOND BARRE, PROVIDED HOWEVER, THAT SUCH DIRECT DAMAGES SHALL IN NO EVENT EXCEED THE LESSER OF ONE HUNDRED ($100.00) DOLLARS OR THE FEES PAID BY INDIVIDUAL TO BEYOND BARRE DURING THE YEAR DURING WHICH THE CLAIM TO SUCH DAMAGES ARISES. IN NO EVENT SHALL BEYOND BARRE BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, SUFFERED BY INDIVIDUAL, EVEN IF BEYOND BARRE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6. Indemnification. Individual shall and hereby does indemnify and hold harmless Beyond Barre and its Related Parties from any and all loss, cost, damage and expense (including reasonable attorneys’ fees, legal expenses and court costs) resulting from or arising out of (i) any claim by any third party which is inconsistent with the promises, covenants, warranties and representations made by Individual in this Agreement, or (ii) any act or omission by Individual which results in liability being asserted against Beyond Barre and its Related Parties.
7. Warranties and Representations. Individual warrants and represents that s/he
(a) is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to his/her right to execute this Agreement; and,
(b) has the full right, power and authority to execute this Agreement and to perform its obligations hereunder in the manner and upon the terms and conditions contained herein.
1. Survivability. The following provisions shall survive the expiration or termination of the Agreement: paragraphs 6, 8 through 18 along with such other provisions as are required to interpret and give force to any of the foregoing.
2. Notice. Any notice which either party hereto is required or desires to give to the other shall be in writing and may be sent pre-paid via a recognized air express delivery company or by facsimile or by e-mail, provided, however, that notice by facsimile or e-mail shall be effective only if the sender receives confirmation of correct transmission or a response from the recipient indicating that such notice was received. Notice sent via a recognized air delivery express company shall be deemed effective two days after sending. Notices to a party shall be as follows, which may be changed from time to time by notice to the other party:
Beyond Barre, LLC – 129 Route 94 South Suite 2 Warwick, NY 10990 (Phone: 845 544 1576)
(a) This Agreement sets forth the entire understanding of the parties hereto relating to the subject matter hereof. No modification, amendment, waiver, termination or discharge of this Agreement or of any of the terms or provisions hereof shall be binding upon either party unless confirmed by a written instrument signed by the party against whom such modification, amendment, waiver, termination or discharge is sought to be enforced. No waiver by a party of any term or provision of this Agreement or of any default hereunder shall affect such party’s rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default, whether or not similar. Except as otherwise provided in this Agreement, all rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy.
(b) Beyond Barre shall have the right to assign this Agreement and any of its obligations hereunder to any affiliated company or entity. The obligations of Individual herein are personal in nature, and therefore Individual shall not have the right to assign this Agreement or any of its obligations hereunder.
(c) This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors, assigns, heirs, executors and administrators, except that no grant, assignment, transfer, pledge, license or sublicense made by Individual in violation of this Agreement shall vest any rights under this Agreement in the receiving party.
(d) Nothing in this Agreement shall be construed to constitute an employment relationship, a partnership, a joint venture or an agency between the parties. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever unless said right or remedy is specifically granted herein to such third party.
(e) If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein.
(f) This Agreement shall be governed by and shall be construed in accordance with the laws of the State of New York without regard to principles of conflicts of law. Any and all actions, suits and proceedings arising out of or related to this Agreement or the subject matter hereof shall be brought only in the courts located in Orange County, New York and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and waive any objection that they may now or hereafter have with respect thereto.
(g) The section titles or headings in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
(h) This Agreement shall be construed without regard to any presumption or other rule permitting construction against the party causing this Agreement to be drafted and shall not be construed more strictly in favor of or against either of the parties.
“Beyond Barre” is a fitness methodology (the “Methodology”) licensed to you (“Individual”) by Beyond Barre, LLC (“Beyond Barre”). By participating in the classes, you agree to the following:
1. You acknowledge that the classes in the Methodology (the “Classes”) are strenuous and that you have sufficient mental and physical health to participate in each of them. You shall be solely responsible for making this determination and you are advised to consult with your personal physician for advice. Notwithstanding the foregoing, Individual shall have the right to terminate your participation in the Classes at any time if it determines that your continued participation might pose any risk to your safety or the safety of others.
2. YOUR PARTICIPATION IN EACH OF THE CLASSES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE, DISCHARGE AND AGREE TO HOLD HARMLESS INDIVIDUAL, BEYOND BARRE AND THEIR RESPECTIVE OWNERS, DIRECTORS, MEMBERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND AFFILIATES (“RELATED PARTIES”) FROM ANY AND ALL LIABILITY WHATSOEVER ARISING FROM OR RELATED TO YOUR PARTICIPATION IN CLASSES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY, LOSS OF EMPLOYMENT, BUSINESS OR OPPORTUNITY, AND LOSS OF PERSONAL PROPERTY, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIABILITY OF INDIVIDUAL, BEYOND BARRE AND/OR RELATED PARTIES EXCEED THE LESSER OF ONE HUNDRED ($100.00) DOLLARS OR THE AMOUNT OF THE ACTUAL FEES PAID BY YOU FOR THE CLASSES IN THE YEAR IN WHICH SUCH LIABILITY ARISES. IN NO EVENT SHALL INDIVIDUAL, BEYOND BARRE AND/OR RELATED PARTIES BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY YOU, EVEN IF ANY OF THEM HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, INDIVIDUAL AND BEYOND BARRE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS REGARDING THE CLASSES OR THE BENEFITS, EFFICACY OR SAFETY THEREOF, AND YOU ACKNOWLEDGE AND AGREE THAT NEITHER INDIVIDUAL NOR BEYOND BARRE MAKES ANY WARRANTY OR REPRESENTATION ABOUT SUCH SAFETY OR THE RESULTS YOU MAY OR MAY NOT OBTAIN BY PARTICIPATING IN THE CLASSES.
4. The Methodology and the name “BeyondBarre,” together with any other symbols, logos, names, slogans and information contained in the marketing and/or instructional materials for the Classes constitute valuable and proprietary intellectual property of Beyond Barre and may not be used by you without Beyond Barre’s prior written consent.
5. The Individual is solely responsible for determining the cost and schedule for the Classes, selecting and hiring instructors for the Classes, providing facilities and equipment for the Classes, and conducting the Classes. Beyond Barre is a third party beneficiary of this Waiver with the full right to enforce it against you, but there is otherwise no legally binding agreement between you and Beyond Barre. You acknowledge and agree that the Individual shall be solely responsible for any claims you may have and any refunds to which you may be entitled related to classes.
6. Neither the signatures of Individual or Beyond Barre are required to make this Waiver binding on you.
BeyondBarre Connections owns and operates this website. We are committed to the privacy and security of our visitors’ information. The following is a statement of our privacy practices:
- Your personal information is required to visit http://beyondbarre.com/connections
- Any personal information collected is knowingly provided by you and only when requested/required during account registration for interactive participation on http://beyondbarre.com/connections and during the ordering process
- Your IP address is a numeric address assigned to your computer, assigned by your Internet service provider. We automatically collect your IP address as traffic data so that we can send information back to you when requested. This is not used to identify your personal information.
- Referrers are references to the web address you linked from and is automatically passed along by your web browser. We collect referrers your browser sends as part of traffic data. This is not attached to personally identifiable information.
- System information such as your operating system/platform, and the type of web browser you use. This is not attached to personally identifiable information.
- Your information is maintained on a secure web server in what we believe to be a well protected environment.
- BeyondBarre Connections only shares personal information to billing companies for completing transactions and for no other purpose. No other information is shared with any other third-party company for any purpose, under any circumstance.
- BeyondBarre Connections makes every effort to preserve your privacy, personal information may be disclosed when required by law where we have a good-faith belief that such action is necessary to comply with a judicial proceeding, court order or legal process.
http://beyondbarre.com/connections relies on “cookie” technology to allow you to re-access your registered account profile during a web session. This mechanism is employed solely for your convenience and for no other purpose.
This Web site contains links to other sites. Please be aware that we, BeyondBarre Connections, are not responsible for the privacy practices of such other sites. We encourage our visitors to be aware when they leave our site and to read the privacy statements of each and every web site that collects personally identifiable information. This privacy statement applies solely to information collected by this Web site.
This web site takes every precaution to protect our visitor’s information. When visitors submit sensitive information via the web site, their information is protected both online and off-line.
We do everything in our power to protect user-information off-line. All of our customers’ information, not just the sensitive information mentioned above, is restricted in our offices. Only employees who need the information to perform a specific job (for example, our billing clerk or a customer service representative) are granted access to personally identifiable information. Finally, the servers that store personally identifiable information are in a secure environment, in a locked facility.
If visitors have any questions about the security on http://beyondbarre.com/connections, feel free to contact Customer Service.
Correcting, Updating, Deleting & Deactivating Personal Information
If a visitor’s personally identifiable information changes (such as zip code, phone, email or postal address), or if a visitor no longer desires our service, we provide a way to correct, update or delete/deactivate personally identifiable information. This can usually be done at the ‘Your Account’ page or by contacting our Customer Service.
Notification of Changes
If, however, we are going to use visitors’ personally identifiable information in a manner different from that stated at the time of collection we will notify users by posting a notice on our web site for 30 days.