Terms and Conditions

 

Body M3canix Terms of Use

 

Last Updated: March 10th, 2020

 

Welcome, and thank you for your interest in 11708163 Canada Inc., (doing business as Body M3canix) (“Body M3,” “we,” or “us”) and our mobile application, website at https://www.bodym3canix.com/Terms_and_Conditions and services provided by us (collectively, our “Service”). 

 

These Terms of Use are a legally binding contract between you and the Body M3 and sets out the terms and conditions by which Body M3 allows you to use the Service and to view the information contained therein. 

 

PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY SIGNING UP FOR AN ACCOUNT OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE BODY M3 PRIVACY POLICY available at https://www.bodym3canix.com/Terms_and_Conditions (TOGETHER, THE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. 

 

If you access or use the Service from the United States, or from any other region outside of Canada, all disputes between you and Body M3 will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 22 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Body M3.

  1. Body M3 Service Overview. Body M3 provides a technology platform that enables users to view and to purchase our products, and to access and monitor certain biometric and other data collected when using our wearable devices, such as the “Atalanta” device. While Body M3 will make all reasonable efforts to ensure that the information provided on the Service is accurate and up to date, periodic changes to our products available for purchase through our Service made be made. It is therefore possible that, at any given time, the information contained on the Service may be incomplete, contain errors or be out of date or inaccurate.

  2. Eligibility. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18); (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization. 

  3. Accounts and Registration. To make a purchase on the Service, or to access certain functionalities of our Service, you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us (see Section 24 for information on how to contact us). 

  4. Checkout and Payment

    1. Buying Products.  You will have the opportunity to purchase products through the Service (each, a “Product”).  All Products sold through the Service are sold directly to you by Body M3. When you buy Products through the Service, you are responsible for reading the full description of the Product before committing to buy it, and you will be entering into a legal contract with.

    2. Checking Out.  Before you pay for any Products, you will have an opportunity to review and accept the prices (including any applicable taxes and shipping costs) that you will be charged. ALL CHARGES ARE IN US DOLLARS, UNLESS OTHERWISE INDICATED. You authorize Body M3 to charge all sums for the Products you select to purchase, said sums to be charged on the payment method you specify at the time of purchase. If you pay with a credit card, Body M3 may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase. 

    3. Shipping.  During checkout, you may be able to select between different options for the shipping of your Products. Shipping is payable in addition to the price for the Products. Please note that more than one option of shipping may not be available, and shipping of some Products may not be available to certain locations. Body M3 makes no guarantee that all Products will be available to ship to your desired location. 

    4. Revising Charges and Discounts. Body M3 reserves the right in its sole discretion, to establish, remove and/or revise charges for any Products at any time. Body M3 may from time to time provide certain users with promotional offers and discounts that may result in different amounts being charged for the Products obtained through the use of the Service (“Promo Codes”). You agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your purchase of any Products and the charges applied to you. Furthermore, you agree that Promo Codes (i) may be disabled by Body M3 at any time and for any reason without any liability to Body M3, (ii) are not valid for cash and (iii) may expire prior to your use. Body M3 reserves the rights to withhold or deduct features or benefits obtained through the use of Promo Codes by you or any other user in the event that Body M3 determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the application Promo Code terms or these Terms. 

  5. Returns

Unless otherwise indicated, all purchases are final, and Products may not be returned. 

  1. User Content 

    1. User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.

    2. Limited License Grant to Body M3. By posting or publishing User Content, you grant Body M3 a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

    3. Limited License Grant to Other Users. By sharing User Content with other users of the Service or posting User Content to a public portion of the site (for example, to a comment board or showroom), you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

    4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that: 

  1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Body M3 and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Body M3, the Service, and these Terms; and

  2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Body M3 to violate any law or regulation.

    1. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Body M3 may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Body M3 with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Body M3 does not permit copyright-infringing activities on the Service.

  1. Interactive Services 

    1. The Service may also include interactive features and services, including social networking functionality, forums, message boards, ratings or review functionality, and similar services, in which you or third parties may send messages to other users, and create, post, or store profile data, pictures, ratings or reviews, and other content on the Service (“Interactive Services”).  You are solely responsible for your use of Interactive Services and use them at your own risk.  By using any Interactive Services, you agree not to post, transmit, distribute, upload, or otherwise disseminate through the Service any of the following:

  • Materials that are unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

  • Material that violates, or that causes us or our affiliates, subsidiaries, or partners to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction;

  • Material that infringes or violates, or that may infringe or violate, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available;

  • Private or confidential information of any person or entity, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card numbers, and any trade secrets or information for which you have any obligation of confidentiality or material that impersonates any person or entity, or misrepresents your affiliation with the Service or with any other person or entity;

  • Material that is or contains any advertising or solicitation, including, without limitation, links to commercial products or services or any political campaigning (except in portions of the Service that are expressly designated as portions in which such Material is allowed, such as the posting of Promotions by non-commercial users);

  • Viruses, corrupted data, or other harmful, disruptive, or destructive files; or

  • Material that, in our sole judgment of, is objectionable, restricts or inhibits any person or entity from using or enjoying any Interactive Services or other portions of the Service, or which may expose us or our users to harm or liability of any nature.

    1. We take no responsibility and assume no liability for any material posted, stored, or uploaded by you or any third party, or for any loss or damage thereto.  Although we have no obligation to screen, edit, or monitor any material posted on or transmitted through the Service, we reserve the right, and have absolute discretion, to remove, screen, and edit any material posted, stored, or transmitted on or through the Service at any time and for any reason without notice.  

  1. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO: 

    1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;

    2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; 

    3. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

    4. remove any copyright, trademark or other proprietary notices from any portion of the Service;

    5. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; 

    6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;

    7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; 

    8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 15) or any right or ability to view, access, or use any Material; or

    9. attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.

  2. Third-Party Services and Linked Websites. Body M3 may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on the Service with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible or liable for their content. Furthermore, you acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. 

“Apple Inc., Google, Inc., and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the Service using Applications developed for Apple iOS or Android-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Service in any manner. Your access to the Service using these devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service.”

  1. Termination of Use; Discontinuation and Modification of the Service. These Terms are effective for the duration of your use of the Service. Body M3 reserves the right and may in its sole discretion suspend or terminate your access to the Service at any time and for any reason or for no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting us as set out in paragraph 24, below. You will remain liable for any amounts unpaid and due for products purchased or Services used prior to termination.

  2. Privacy Policy; Additional Terms 

    1. Privacy Policy.  Body M3 may collect, store, use and disclose personal information in connection with the Service. The collection and use of personal information is performed in accordance with applicable laws and the Body M3 Privacy Policy available at https://www.bodym3canix.com/Terms_and_Conditions.  The Body M3 Privacy Policy is incorporated by this reference into, and made a part of, these Terms. 

    2. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may from time to time post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

  3. Monitoring and Consent to Data Exchange. Body M3 reserves the right, at its sole discretion, to monitor your use of the Service. By accepting to access the Service, you consent to such monitoring. However, you also acknowledge that Body M3 is not obligated to take action to control the users’ activities on the Service and therefore is not responsible for any users’ activities.

  4. Cookies. Body M3 uses “cookies” and other technologies to collect data that enables us to better understand and improve the available features, performance and effectiveness of our Service. Cookies are files that are sent to your browser and stored on your computer. If you do not want Body M3 to send cookies to your browser, you can set your browser options to reject cookies or notify you when a website tries to put a cookie into your browser software. Rejecting cookies may affect your ability to use some features of our Service. By accessing our Service without having previously changed the parameters of your browser, you agree to the use of cookies and release Body M3 from any liability concerning such practices. 

  5. Modification of these Terms. Body M3 reserves the right to amend these Terms at any time and in its sole discretion, by posting the amendments on its website or within any mobile application used to access the Service. You are responsible for periodically reviewing the website and any mobile applications used to access the Service for any amendments to the Terms. Use of the Service after any amendments have been posted shall be construed as your acknowledgement and acceptance of the amended Terms.     

Transactions that are already in process prior to the effective date of the amendment will continue to be governed by the terms and conditions that were in effect at the date of the transaction.  Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

  1. Ownership; Proprietary Rights. The Service is owned and operated by Body M3. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), Products, Product names and logos, software, services, and all other elements of the Service (“Materials”) provided by Body M3 are protected by intellectual property and other laws. All Materials included in the Service and the manner in which the Materials are presented, are the property of Body M3 or our third-party licensors, as the case may be. Except as expressly authorized by Body M3, you may not make use of the Materials. Body M3 reserves all rights to the Materials not granted expressly in these Terms.

  2. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Body M3 an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.

  3. Indemnity. You are responsible for your use of the Service, and you agree at all times to indemnify and defend Body M3 and its affiliates, and its and their respective officers, directors, employees, consultants, subsidiaries and agents (together, the “Body M3 Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim. 

  4. Disclaimers; No Warranties

THE SERVICE AND ALL MATERIALS, CONTENT, AND PRODUCTS AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BODY M# ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, CONTENT, AND PRODUCTS AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE BODY M3 ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. 

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BODY M3 ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. 

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

  1. Limitation of Liability

BODY M3 ASSUMES NO LIABILITY PERTAINING TO THE USE OF THE SERVICE AND/OR THE CONTENT OR FROM ANY DAMAGE OR PROBLEM, WHATEVER ITS NATURE OR ORIGIN, THAT MAY ARISE FROM THE USE OF THE SERVICE AND/OR CONTENT OR FOLLOWING THE USE THEREOF.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT IS UNDERSTOOD THAT IN NO EVENT WILL BODY M3 ASSUME ANY RESPONSIBILITY FOR:

  1. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY, DAMAGES FOR LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF OPPORTUNITY, LOSS OF DATA OR COST OF DATA RECOVER, HOWSOEVER CAUSED, EVEN IF THERE WAS A NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORSEEABLE; 

  2. DAMAGES OR LOSSES RESULTING FROM: (A) VIRUSES, DATA CORRUPTION, FAILED MESSAGES, TRANSMISSION ERRORS OR PROBLEMS; (B) TELECOMMUNICATIONS SERVICE PROVIDERS; (C) THE INTERNET BACKBONE; (D) THIRD-PARTY CONTENT, PRODUCTS OR SERVICES; (E) DAMAGES OR LOSSES CAUSED BY YOU OR YOUR EMPLOYEES, AGENTS OR SUBCONTRACTORS; (F) LOSS OF USE OR LACK OF AVAILABILITY OF FACILITIES INCLUDING COMPUTER RESOURCES, ROUTERS AND STORED DATA; (G) THE USE OR INABILITY TO USE THE SERVICE OR THE CONTENT; (H) EVENTS BEYOND THE REASONABLE CONTROL OF MEMBERS OF BODY M3, EVEN IF THERE WAS A NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS OR EVEN IF SUCH DAMAGES OR CLAIMS WERE REASONABLY FORSEEABLE; OR

  3. ANY PERSONAL INJURY OR MATERIAL DAMAGES CAUSED BY ANY PRODUCT OR BY YOUR USE OF ANY PRODUCT.

THE AGGREGATE LIABILITY OF BODY M3 ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (A) THE AMOUNT YOU HAVE PAID TO BODY M3 FOR THE PURCHASE OF PRODUCTS THROUGH THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED US DOLLARS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Governing Law. These Terms are an agreement between you and Body M3. These Terms are governed by the laws of the Province of Quebec and the Canadian federal laws applicable therein. You agree to submit to the personal and exclusive jurisdiction of the courts located in the Province of Québec (judicial district of Montreal) for the purpose of litigating any dispute relating in any way to these Terms, your use of the Service, or any items you purchase through the Service.

  2. General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Body M3 regarding your use of the Service. Body M3 reserves the right to amend the Terms at any time and in its sole discretion by positing the amendments on its website or application You are responsible for periodically reviewing any amendments. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

  3. Dispute Resolution and Arbitration. This Section 22 applies only to residents of the United States or any other jurisdiction outside of Canada. 

    1. Generally. In the interest of resolving disputes between you and Body M3 in the most expedient and cost effective manner, if you are a resident of the United States or any other jurisdiction outside of Canada, you and Body M3 agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BODY M3 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    2. Exceptions. Despite the provisions of Section 22.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim. 

    3. Arbitrator. Any arbitration between you and Body M3 will be settled under the arbitration laws provided for in the Quebec Civil Code (Books 5 and 10) and the Quebec Code of Civil Procedure (Book 7) (the “Rules”).

    4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Body M3’s address for Notice is: 15-4119 Madison Avenue, Montreal, Quebec, Canada H4B 2T8. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Body M3 may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Body M3 must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Body M3 will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Body M3 in the settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

    5. Fees. The party that elects to commence arbitration in accordance with these Terms, will be responsible for the payment of the filing fee. 

    6. Place of Arbitration. Any arbitration hearing will take place at a location to be agreed upon in the Province of Quebec, but if the claim is for $10,000 or less, we may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance-based telephone hearing; or (c) by an in-person hearing as established by the Rules.

    7. Arbitrator’s Decision. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the Rules. In that case, you agree to reimburse Body M3 for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    8. No Class Actions. YOU AND BODY M3 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, unless both you and Body M3 agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

    9. Modifications to this Arbitration Provision. If Body M3 makes any future change to this arbitration provision, other than a change to Body M3’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Body M3’s address for Notice, in which case your account with Body M3 will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

    10. Enforceability. If Section 22.6 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.

  4. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. 

  5. Contact Information. The Service is offered by 11708163 Canada Inc. (doing business as Body M3canix), located at 15-4119 Madison Avenue, Montreal, Québec, Canada H4B 2T8. You may contact us by sending correspondence to that address or by emailing us at [email protected] 

 

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