BDYCLB CREATOR TERMS OF SERVICE
Updated and Effective as of: July 19th 2021
This Creator Terms of Service Agreement (“Terms”) governs your use as a Creator on the BDYCLB™ website (bdyclb.com), mobile application (“App”), and services we provide (collectively, the website, App, and services referred to as our “Platform”). “You” and “BDYCLB Creator” refer to you as a Creator on the Platform.These Terms apply solely to Creators of our Platform. Your use of our Platform is also subject to the current Creator Acceptable Use Policy. Any use by you of our Platform other than as a Creator is governed by the Platform Terms of Service.
PLEASE READ THESE TERMS CAREFULLY. By using our Platform as a Creator or otherwise indicating your acceptance (for example, agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use our Platform as a Creator.
ARBITRATION NOTICE: Section 16 of these Terms contains provisions governing how claims that you and BDYCLB have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and BDYCLB to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement as described in Section 16: (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
You should read the policy in full, but here are a few key things:
a. You own your content. Nothing is changing about the rights to your content. We do not claim ownership of content that you post on or through the Platform.
b. We retain ownership of our content. If you use content covered by intellectual property rights that we have and make available on the Platform (for example, BDYCLB images, technology, designs, recipes, videos, or sounds we provide that you add to content you create or share), we retain all rights to our content (but not yours).
c. You’re responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. Creators cannot post private or confidential information or do anything that violates someone else's rights, including intellectual property. We can remove any content for any reason.
d. You’re welcome to post content on BDYCLB that you’ve published elsewhere. As long as you have the rights you need to do so. By posting content to BDYCLB, you represent that doing so doesn’t conflict with any other agreement you’ve made.
e. Posting content you didn’t create on BDYCLB. By posting content you didn’t create to BDYCLB, you are representing that you have the right to do so. For example, if you’re posting a work that’s in the public domain, used under license (including a free license, such as Creative Commons), or a fair use.
THE FULL DETAILED CREATOR TERMS OF SERVICE
1. YOUR OBLIGATIONS
1.1. BDYCLB Plans: From time to time, a user of our Platform (“User”) may purchase a BDYCLB Plan from you through our Platform. BDYCLB retains the right, in its sole discretion, to cancel any request from a User. We reserve the right to remove your BDYCLB Plan at any time for any reason. No payment will be made to you for any declined, cancelled, or unfulfilled BDYCLB Plan request. Each BDYCLB Plan will follow the general directions and requests of the User (for example, number of days in each plan or number of calories per day). You will have sole discretion over the content of any BDYCLB Plan. Your interactions with third parties, including Users, on or through our Platform, are solely between you and the third party; however, BDYCLB may, in its sole discretion, intercede in any dispute and you will reasonably cooperate with BDYCLB if it does so. You acknowledge and agree that BDYCLB will not be responsible for any damages, losses, costs, expenses, or liabilities incurred as the result of such interactions. You agree to contact Users about BDYCLB Plans only through our Platform.
1.2 Registration: In order to sell Plans on our Platform, you will need to register. In registering, you agree to provide true, accurate, current, and complete information about yourself as prompted by our registration form, as well as any other information reasonably requested by us (collectively, “Registration Data”), and maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you do not do so or we reasonably believe that you have not done so, we have the right to suspend or terminate your Platform account and your use of any part of our Platform. You agree not to create a Platform account using a false identity or providing false information, on behalf of another person (except as outlined below for a parent or legal guardian and Organizations), or if you have previously been removed or banned from our Platform. You are responsible for maintaining the confidentiality of your Platform account information, including your username and password. You are responsible for all activities that occur on or in connection with your Platform account and you agree to notify us immediately of any unauthorized access or use of your Platform account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Platform account.
(a) Creator, age 17 or older: Creators who are at least 17 years old may register. By registering, you represent and warrant that: 1) you are at least 17 years old (and, if between 17 and 18 years old, are registering with the supervision and with the consent of your parent or legal guardian, who also agrees to these Terms); (2) you are of legal age to form a binding contract; (3) you (and if you are between 17 and 18 years old, your parent or legal guardian) are not barred from using our Platform under the laws of the United States, your place of residence (and if you are between 17 and 18 years old, the place of residence of your parent or legal guardian), or any other applicable jurisdiction; and (D) you (and if you are between 17 and 18 years old, your parent or legal guardian) are responsible for complying with all applicable laws and regulations relating to Creator’s participation on our Platform and will fully indemnify the BDYCLB Parties (defined below) for any failure to do so.
(b) Creator, under age 17: Creators who are under 17 years old, may not register.
(c) Organizations: A management company, manager, agency, agent, publicist, or other individual or organization (each, an “Organization”) may register a Creator (“Affiliated Creator”). By registering, the Organization represents and warrants for itself and each Affiliated Creator that: (A) Organization is the authorized representative of the Affiliated Creator and (if any Affiliated Creator is below the age of 18, registering with any required consent of the Affiliated Creator’s parent or legal guardian) and agrees to these Terms; (B) neither the Organization nor the Affiliated Creator is barred from using our Platform under the laws of the United States, the place of residence of the Organization or any AffiliatedCreator, or any other applicable jurisdiction; and (C) Organization is responsible for complying with all applicable laws and regulations relating to Affiliated Creator’s participation on our Platform under these Terms and will fully indemnify the BDYCLB Parties for any failure to do so. In addition to these Terms, Additional Terms (defined below) may apply. To register Affiliated Creator as an Organization, please contact firstname.lastname@example.org.
1.3 Promotional Materials: At no cost to BDYCLB, you will provide to us the following promotional materials (“Promotional Materials”) within 72 hours of beginning the Creator on-boarding process on our Platform: (i) if you would like us to promote your participation on our Platform, one resolution images of yourself; and (ii) your Platform profile bio. From time to time we may request additional Promotional Materials from you for BDYCLB’s use to promote you on or in connection with our Platform or on any social media platform or third party website. Any other materials or photos of or concerning you that you approve for BDYCLB’s use will also be Promotional Materials under these Terms.
2. FEES AND PAYMENT
2.1 Fee: You set your own price for each BDYCLB Plan and any other offering you choose to make available through the BDYCLB marketplace platform (each, a “Fee”), provided that: (i) your price on the App for iOS must be an available Apple SKU. In addition, the Fee for each BDYCLB Plan must be at least US $.99 (unless it is either US$0.00 or as otherwise agreed in writing by BDYCLB).
2.2 Fees: We will pay you 80% of the Fee actually received by BDYCLB for each BDYCLB Plan, except that in the case of a Fee paid through the App, we will pay you 80% of the amount actually received by BDYCLB after subtracting any payment to or deduction by the application platform (e.g., Apple deducts a 30% commission from the Fee) from the Fee (“Net App Booking Fee”).
2.3 Fees and Payment Representations and Warranties: You represent and warrant that: (i) BDYCLB Plans are not, and are not intended to be, covered by any guild, union, collective bargaining, or similar agreement and there will be no residual or any other type of payment due from BDYCLB to you, to any third party, guild, or union, or pursuant to any collective bargaining agreement, in connection with any BDYCLB Plan, payment from us to you, or our Site; (ii) BDYCLB is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with our Site; and (iii) BDYCLB is not responsible for any contributions, payments, taxes, or deductions for Social Security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labor union, or any withholding or income taxes.
2.4 Payment: You agree to register with the third party payment provider selected by BDYCLB, which BDYCLB may change in its sole discretion. You may not use a payment provider other than the one selected by BDYCLB. You will provide the payment provider any information required in order to receive payments via the payment provider. Any payments due to you from BDYCLB will be made via the payment provider. If you do not provide the payment provider with all required information, you may not be able to receive the payments due to you. BDYCLB will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide such information. Subject to the payment provider’s terms, payment will be made within approximately two weeks of receipt by BDYCLB of the Booking Fee or Net App Booking Fee (as set forth in Section 2.1). You acknowledge and agree that BDYCLB does not operate, own, or control the payment provider; and your use of any payment provider is subject to the terms and privacy policies of that payment provider. You agree that we are not responsible for any delay, failure, damage, or liability caused by a payment provider, any other third party, a force majeure, or your failure to timely or properly set up an account with the payment provider or otherwise provide requested information for payment. Other than with respect any payment to or deduction by the application platform (as set forth in Section 2.2). BDYCLB will be responsible for fees, costs, and expenses incurred in connection with the payment provider selected by BDYCLB. Unless otherwise agreed by BDYCLB in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in these Terms, if BDYCLB, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with our Site, you acknowledge and agree that we may withhold, delay, or seek repayment of any payments we believe, in our sole discretion, are related to the violation.
2.5 Currency: Payments via the payment provider are in U.S. dollars unless the payment provider permits you to choose another currency and you do so.
2.6 Fundraising: If you identify any entity on your booking page or elsewhere on our Site as a charitable organization or a recipient of any funds that you are raising (each, a “Charity”), you: (i) represent and warrant that you will comply with all applicable laws and regulations relating to that identification or the Charity, including making disclosures, registering, or entering into any agreement, such as a commercial co-venturer agreement; (ii) acknowledge and agree that we have the right in our sole discretion to reject your identification or the Charity; (iii) represent and warrant that the Charity is and will remain in good standing at all times the identification is used, that within 48 hours of your receipt of our request, you will provide us with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions, and that you will promptly remove the identification if the Charity ceases to be in good standing; (iv) represent and warrant that you will be responsible for making any payment to the Charity (unless we expressly agree in writing in advance to do so on your behalf and in satisfaction of our payment obligations to you under these Terms); and (v) represent and warrant that you have all rights necessary to authorize use of the Charity’s name and logo in connection with (and on) our Site, in the identification, and in any social and other media. You further acknowledge and agree that we may add a statement to your booking page disclaiming a connection between BDYCLB and the Charity, as we determine in our sole discretion.
3. CREATOR CONTENT
3.1 License Grant to Creator Content: Our Platform allows you to upload, submit, store, send, transmit, approve, and receive content and data, including your BDYCLB Plans and Promotional Materials (collectively, “Creator Content”). When you upload, submit, store, send, transmit approve, or receive Creator Content to or through our Platform, you grant to us a non-exclusive, royalty-free, fully paid, unlimited, worldwide, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license in any and all manner and media, whether now known or hereinafter invented or devised (including social media channels and third party websites and platforms), to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes we make so that Creator Content works better with our Platform or otherwise), and to use your Creator Content for the purposes of operating and providing our Platform, to develop and improve our products and services, and to advertise, market, and promote our Platform, products, and services, and you agree that such Creator Content may, in BDYCLB’s sole discretion, be used, including performed or displayed, in connection with any other elements, materials, copyrights, rights of publicity, or copyrighted materials. Please remember that third parties (including Users) may search for and see any Creator Content you submit to public areas of our Platform. You agree that we may display advertising with or in connection with your Creator Content. You further acknowledge and agree that BDYCLB has no obligation to you in connection with any advertising displayed on or in connection with our Platform (including no obligation to share any revenue received by BDYCLB as a result of any such advertising).
3.2 License Grant to Users: You hereby grant to User and the Recipient of the BDYCLB plan a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, and perpetual license to use the BDYCLB Plan solely in accordance with the Platform Terms of Service.
3.3 Right to Remove BDYCLB Plans: You acknowledge and agree that we cannot restrict the use of your BDYCLB Plans by the Users who purchased them or by Users for whom you created them and we have no obligation to remove those uses. As owner of the copyright in your Creator Content, you hereby authorize BDYCLB to act as your agent in order to submit any DMCA notice or other demand with respect to your BDYCLB Plans.
3.4 Licenses: Please note that the licenses granted in this Section 3 are fully-paid and royalty free, meaning we do not owe you anything in connection with the use of your Creator Content, by us, Users, or third parties (including Recipients), other than the payment set forth in Section 2.2. We may exercise our rights under this license anywhere in the world. We may sublicense our rights as needed to provide and promote our Platform or otherwise in accordance with these Terms, and Users may sublicense their rights subject to the Platform Terms of Service. Finally, the licenses granted in this Section 3 are perpetual, meaning that the rights granted under these licenses continue even after you stop using our Platform.
3.5 Creator Content Representations and Warranties: You represent and warrant that:
(a) you own all rights in and to your Creator Content and Feedback and that you have the right to grant the rights described in these Terms;
(b) you have paid and will pay in full any fees, royalties, or other payments that are due or may become due in connection with any use of your Creator Content and Feedback by us, Users, or third parties as described in these Terms;
(c) your agreement to, and provision of services under, these Terms does not violate any agreement that you may have with any third party;
(d) your Creator Content and Feedback does not infringe, misappropriate, or otherwise use without necessary authorization, any intellectual property, privacy, publicity, moral, or other rights of any third party, or violate any law, regulation, or court order;
(e) you will not edit, change, modify, or remove any watermark from any BDYCLB Plan or assist or encourage any third party to do so;
(f) you will not ask us to assist you with the actions in Subsections 3.5(e) through 3.7.
3.6 Treatment of Creator Content: Any Creator Content is non-confidential, non-proprietary, and must not contain or include any information which you do not have the right to disclose or that you do not wish to be disclosed. We will not be responsible or liable for any use or disclosure of Creator Content, including any personal information included in that Creator Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, joint-venture, employer/employee, agency, or other type of special relationship, and that your decision to participate in our Platform or submit any Creator Content does not place us in a position that is any different from the position held by members of the general public, including with regard to your Creator Content. None of your Creator Content will be subject to any obligation of confidence by us, Users, or third parties (including Recipients), and we will not be liable or responsible for any use or disclosure of any Creator Content.
3.7 Refusal and Removal of Creator Content: We may refuse to accept or transmit Creator Content for any reason without notice to you. We may remove Creator Content from our Platform for any reason without notice to you.
3.8 Cancellation of Platform Account: If you cancel your Platform account, you may, on at least three business days’ advance written notice to us, request that we no longer include your BDYCLB Plans on our Platform and that we not make any new public use of them. As noted in Section 3.3, we have no obligation as to use of your BDYCLB Plans by the Users for whom you created them or by any third party with whom they have already been shared including from social media channels or third party websites or platforms).
3.9 Moral Rights: You hereby waive any and all moral rights or “droit moral” that you may have in Creator Content, and you represent and warrant that no third party has any moral, “droit moral” or other rights in the Creator Content.
4.2 BDYCLB desires to avoid the possibility of future misunderstandings if a project developed by us, our employees, or our contractors might seem similar to material submitted to us by you or a third party. To the extent you submit any ideas, suggestions, proposals, plans, or other materials related to our business (individually, and collectively, “Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that BDYCLB has no obligation (including of confidentiality or privacy) with respect to your Feedback, and you grant to BDYCLB a non-exclusive, royalty-free, fully paid, unlimited, worldwide, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback.
4.3 You hereby waive any moral rights you may have in any Feedback.
5. ADDITIONAL TERMS
Some products or services offered through the Platform may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available for you to read in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern unless the Additional Terms say that these Terms don’t apply.
6.1 Age: You must be at least 17 years old to use our Platform. If you are a minor or under the age of majority in your state of residence, your parent or legal guardian must agree to these Terms on your behalf and you may access and use our Platform only with permission from your parent or legal guardian.
6.2 National College Athletic Association (“NCAA”) and Other Amateur Organizations: If you are or may become subject to NCAA rules and regulations or those of any other association, group, authority, or organization, you represent and warrant that you have checked the rules and regulations to verify and confirm that your participation on our Platform does not or will not affect your current or future eligibility with respect to any such association, group, authority or organization.
6.3 Representations and Warranties: You represent and warrant that:
(a) you have not been prohibited from using or accessing any aspect of our Platform by us or under any applicable law or regulation;
(b) you will comply with all applicable terms of any third party payment provider we select, and you are not on a prohibited list of that payment provider;
(c) if you include an animal in any BDYCLB Plan, you will cause no harm to the animal and will comply with all applicable laws and regulations;
(d) you (and any Platform account that you created or control) have not been previously banned or removed from our Platform for any reason; and
(e) you are not a convicted sex offender.
6.4 Export Control: You may not use, export, import, or transfer any part of our Platform except as authorized by United States law, the laws of the jurisdiction in which you use or access our Platform, or any other applicable laws. In particular, but without limitation, no part of our Platform may be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using our Platform, you represent and warrant that: (x) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Platform for any purpose prohibited by law. You acknowledge and agree that products, services, and technology provided by BDYCLB are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. Government authorization, export, re-export, or transfer BDYCLB products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
7. COPYRIGHT AND INTELLECTUAL PROPERTY POLICY
7.1 Termination Policy: If we determine that you are a repeat infringer of copyright, we may terminate your access to our Platform, remove or ban you (and any Platform account you created or control), and take other appropriate action in our sole discretion.
7.2 Digital Millennium Copyright Act Notice: We respond to notices of alleged copyright infringement and terminate access to our Platform for repeat infringers. If you believe that your material has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
• your address, telephone number, and email address;
• a description of the work that you claim is being infringed;
• a description of the material that you claim is infringing and are requesting be removed along with information about where it is located;
• a statement that you have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
• an electronic signature of the copyright owner (or a person authorized to act for the copyright owner); and
• a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.Copyright Agent: BDYCLB, Inc., email@example.com. If you do not follow these requirements, your notice may not be valid. Please note, only notices of alleged copyright infringement should be sent to our Copyright Agent.
9. THIRD PARTY CONTENT AND INTERACTIONS
Our Platform may contain features and functionalities that may link to or provide you with access to third party content, that is completely independent of us, including BDYCLB Plans, websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. You hereby release each BDYCLB Party (defined below) from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes or our Platform. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SIMILAR APPLICABLE STATE STATUTE), WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
10. BUSINESS RELATIONSHIP WITH BDYCLB
10.1 You and BDYCLB agree and declare you and BDYCLB are in a direct business relationship and the relationship between the parties, including these Terms is solely an independent contractor relationship and it is the parties’ express intent that their relationship be interpreted and held to be that of independent contractor for all purposes. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of BDYCLB, and will not represent yourself as such. As an independent contractor using our platform to provide marketing, artistic, writing, and photography services to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance under these Terms and you acknowledge and agree that we do not control those elements of your performance. You also retain the option to accept, decline, or ignore any User request. We have no right to, and will not, control the manner or determine the method of accomplishing your performance.
10.2 You represent and warrant that as between BDYCLB and you (whether a Creator, parent or legal guardian of a Creator, an Organization, Affiliated Creator, BDYCLB Partner, or otherwise), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement benefits, unemployment insurance, and annuities, pension or welfare fund payments required by law or any labor union, and all withholding taxes, or income taxes, and make any reports required as a result of participation on our Platform under these Terms.
10.3 You will use your own equipment to perform your obligations under these Terms. You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.
10.4 Your relationship with BDYCLB is non-exclusive, meaning that you may provide similar services to third parties, including BDYCLB’s competitors, and you may engage in other business or employment activities. Similarly, we can and do engage third parties to provide services similar to those that you provide under these Terms.
12. CHANGES TO OUR PLATFORM
You acknowledge and agree we may change or discontinue any aspect of our Platform at any time, without notice to you.
13. TERMINATION AND RESERVATION OF RIGHTS
You may cancel your Platform account at any time by contacting a member of the BDYCLB team at firstname.lastname@example.org. We reserve the right to terminate access to our Platform to any person, including you, at any time, for any reason, in our sole discretion. If you violate any of these Terms, your permission to use our Platform automatically terminates.
14. DISCLAIMERS AND LIMITATIONS ON OUR LIABILITY
14.1 You acknowledge and agree that your use of our Platform is at your own risk and that our Platform is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, the BDYCLB Parties disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, and non-infringement and those arising out of course of dealing or usage of trade.
14.2 In particular, the BDYCLB Parties make no representations or warranties about the accuracy or completeness of content available on or through our Platform or the content of any social media platform or third party website linked to or integrated with our Platform. You acknowledge and agree that the BDYCLB Parties will have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from your access to or use of our Platform; (iii) any unauthorized access to or use of our servers, any personal information, or user data; (iv) any interruption of transmission to or from our Platform; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through our Platform; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of the use of any content posted or shared through our Platform.
14.3 You acknowledge and agree that any material or information downloaded or otherwise obtained through our Platform, including a User request, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from us or through our Platform, including through a BDYCLB Plan, will create any warranty not expressly made by us.
14.4 You acknowledge and agree that when using our Platform, you will be exposed to content from a variety of sources, and that BDYCLB is not responsible for the accuracy, usefulness, safety, legality, or intellectual property rights of or relating to any such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, objectionable, or harassing, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against any BDYCLB Party with respect thereto.
14.5 To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will any BDYCLB Party be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not BDYCLB has been advised of the possibility of such damages.
14.6 To the maximum extent permitted by applicable law, our total cumulative liability to you or any third party under these Terms, from all causes of action and all theories of liability, will be limited to and will not exceed the fees actually received by BDYCLB from you during the 12 months preceding the claim giving rise to such liability.
14.7 Certain jurisdictions do not allow the exclusion or limitation of certain damages. If those laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
14.8 You agree that the limitations of damages set forth above are fundamental elements of the basis of the bargain between BDYCLB and you.
You agree to indemnify, defend, and hold harmless BDYCLB and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, and licensors (each, a “BDYCLB Party, “ and collectively, “BDYCLB Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) these Terms; (b) use of our Platform; (c) your negligence, misconduct, or fraud; (d) any action or inaction by you or anyone acting on your behalf; (e) any Organization or Affiliated Creator; (f) any Charity; (g) your status as a parent or legal guardian of a Creator; (h) Creator Content;(i) Feedback; (j) your eligibility with the NCAA or any other association, group, authority, or organization referenced in Section 6; or (k) your participation in the Referral Program. BDYCLB may select counsel for and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
16. ARBITRATION AGREEMENT AND WAIVER OF CERTAIN RIGHTS
16.1 Arbitration: You and BDYCLB agree to resolve any disputes between you and BDYCLB through binding and final arbitration instead of through court proceedings. You and BDYCLB each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and BDYCLB relating to these Terms or our Platform (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
16.2 Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, BDYCLB will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
16.3 No Preclusions: This arbitration agreement does not preclude you or BDYCLB from seeking action by federal, state, or local government agencies. You and BDYCLB each also have the right to bring any qualifying Claim in small claims court. In addition, you and BDYCLB each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
16.4 No Class Representative or Private Attorney General: You and BDYCLB each agree that neither may act as a class representative or private attorney general or participate as a member of a class of claimants, with respect to any Claim. You agree that Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or BDYCLB). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
16.5 Severability/No Waiver/Survival: If any provision of this Section 16 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 16 will continue in full force and effect. No waiver of any provision of this Section 16 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section 16 of these Terms will survive the termination of your relationship with BDYCLB.
16.6 30-Day Opt-Out Right: You have the right to opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of your decision to opt out to the following address: BDYCLB, 5914 Whitworth Dr., Los Angeles, CA 90019. Your notice must include your name and address, any usernames, each email address you have used to set up an account on our Platform, and an unequivocal statement that you want to opt out of this Arbitration Agreement. You agree that if you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 LIMITATIONS: This Section 16 limits certain rights, including the right to maintain certain court actions, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in AAA rules, and the right to certain remedies and forms of relief. In addition, other rights that you or BDYCLB would have in court may not be available in arbitration.
17. OTHER PROVISIONS
17.1 Force Majeure: Under no circumstances will any BDYCLB Party be liable for any delay or failure in performance due in whole or in part to any acts of God, earthquakes, unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of any BDYCLB Party.
17.2 Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or our Platform that is filed consistent with Section 16, will be filed only in the state or federal courts located in Los Angeles, CA. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
17.3 Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
17.4 No Waiver or Amendment: The failure by BDYCLB to enforce any right or provision of these Terms will not prevent BDYCLB from enforcing such right or provision in the future and will not be deemed to modify these Terms.
17.5 Assignment: BDYCLB may, at any time, assign its rights and obligations under these Terms, including in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
17.6 Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
18. CHANGES TO THESE TERMS
We may change these Terms. If we do, we will post the revised Terms on our Platform and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, agreeing when you create an account or login to an existing account, or using or continuing to use our Platform after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.
Questions? Let us know at email@example.com.
BDYCLB CREATOR TERMS OF SERVICE