Effective November 18, 2017
1. Our Terms
c. Arbitration Notice. SECTION 13 (“MANDATORY ARBITRATION OF DISPUTES”) OF THIS AGREEMENT CONTAINS PROVISIONS THAT MAY REQUIRE YOU TO SUBMIT CLAIMS AGAINST BENDII TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS AND WAIVE YOUR RIGHTS (I) TO LITIGATE YOUR CLAIMS IN COURT; (II) TO A TRIAL BY JURY; AND (III) TO PARTICIPATE IN A CLASS ACTION.
d. Summary of Important Terms. As provided in greater detail in these Terms, and without limiting the express language of these Terms, you acknowledge the following:
i. The Bendii Platform connects you to other Users of the Bendii Platform, but Bendii is not a party to contracts for Yoga Services between Users and is not responsible for the quality or other characteristics of the Yoga Services;
ii. Using the Bendii Platform does not make you an employee, subcontractor, agent, joint venturer, or partner of Bendii;
iii. You have a limited license to use the Bendii Platform only as permitted by these Terms;
iv. Your use of the Bendii Platform may be subject to separate third-party terms of service and fees, including but not limited to those of your mobile network operator, including fees for data usage and overage, which are your sole responsibility;
vi. The Bendii Platform is provided “as is,” without warranties of any kind;
vii. To the maximum extent permitted by law, you agree to waive Bendii’s liability to you for any damages or harms you incur connected to your use of the Bendii Platform;
viii. You agree to resolve any disputes with Bendii through binding arbitration, and you waive your rights to a trial by jury and to participate in class action lawsuits;
ix. Bendii may, in its sole discretion and without further warning or notice, access, store, use, and disclose messages, call transcripts, and data about communications between and among Users that occur through the Bendii Platform for our business purposes, including to provide and improve customer service, prevent fraud, and identify violations of this Agreement; and
x. You acknowledge and agree to the “Notice Regarding Apple” in Section 16.
2. Services, Limitations, User Responsibilities
a. Services. The Bendii Platform provides a marketplace or communication platform where independent, self-employed individuals and/or businesses that provide yoga instruction (“Instructors”) and individuals and businesses seeking yoga instruction (“Clients”) can identify each other, communicate, and arrange for the provision of and payment for yoga instruction services (“Yoga Services”). Except as expressly provided herein, Bendii shall have full discretion to determine, redesign, and modify the layout, content, interface, and all other aspects of the Bendii Platform. Bendii reserves the right to withdraw the Bendii Platform, and any service we provide on the Bendii Platform, in our sole discretion and without notice. From time to time, we may restrict User access to some parts of the Bendii Platform, or the entire Bendii Platform, for any reason or no reason.
b. Limitations and User Responsibilities. You acknowledge and agree to the following:
i. Users of the Bendii Platform contract for Yoga Services directly with other Users and, except as set forth in Section 15 (“Development and Testing”), Bendii is not a party to any contract for Yoga Services between Users. Bendii does not require Users to accept or perform Yoga Services, does not determine any details of Yoga Services, and is not responsible for resolving, mediating, intervening, or otherwise addressing any disputes between Users related to their contracts for Yoga Services.
ii. Bendii does not employ, subcontract, direct, or control Instructors in their provision of Yoga Services. Bendii does not control the quality, timing, or legality of Yoga Services provided, and makes no representations or warranties about the suitability, reliability, integrity, quality, or any other characteristics of Instructors, Clients, or Yoga Services. You are responsible for your personal safety and the security of your property before, during, and after the provision of Yoga Services. BENDII IS NOT LIABLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER AND IS NOT LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING FROM USER CONDUCT BEFORE, DURING, OR AFTER THE PROVISION OF YOGA SERVICES.
iii. Except as expressly provided in this Agreement, Bendii is not required to screen or verify information provided by Users and assumes no responsibility for the accuracy or reliability of information provided by Clients or Instructors on or off the Bendii Platform. You are solely responsible for interviewing, screening, performing background or reference checks on, and selecting an appropriate Instructor or Client for your needs.
iv. Bendii does not recommend or endorse yoga generally or any specific Yoga Services as treatment for any medical or non-medical ailment or condition. Bendii makes no representations regarding the safety or effectiveness of any Yoga Services for your circumstances. As a Client, you are solely responsible for consulting medical professionals and performing other due diligence to ensure that offered Yoga Services are appropriate and safe for your purposes and circumstances.
v. Bendii does not screen or select locations for the provision of Yoga Services, provide transportation to the location of Yoga Services, or reimburse Users for travel or any other expenses incurred in the provision of Yoga Services. Bendii does not provide, or reimburse Users for the expense of, any tools, equipment, or other supplies used in the provision of Yoga Services. Clients and Instructors are responsible for selecting a site, arranging for the provision of any necessary equipment or supplies, and doing all other things to facilitate the provision of Yoga Services.
vi. You are responsible for ensuring that all persons who access the Bendii Platform through your account are aware of these Terms and comply with them.
vii. Bendii takes commercially reasonable steps to protect the security of the Bendii Platform as described in Section 4c (“Account Security”), but cannot guarantee the security of your personal data or device(s). You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Bendii Platform for any reconstruction of any lost data.
3. Instructor Eligibility Requirements
If you are an Instructor, you agree to comply with the following eligibility requirements at all times:
a. Credentials. You must hold and maintain Registered Yoga Teacher (“RYT”) credentials pursuant to the membership requirements of The Yoga Alliance, a nonprofit association with its address at 1560 Wilson Blvd, #700, Arlington, VA 22209. You must provide to Bendii written verification of your RYT credentials and promptly notify Bendii of any change in your RYT credentials or membership status in The Yoga Alliance.
b. Training. You must have adequate and customary levels of training and expertise, consistent with industry standards and the reasonable expectations of Clients, for any Yoga Services that you offer as an Instructor on the Bendii Platform.
c. Insurance. You must, at your own expense, hold and maintain in full force and effect general liability insurance with policy limits sufficient to fully protect and indemnify the Bendii Parties (defined in Section 9c (“Waiver of Liability”)) in accordance with Section 9d (“Indemnification”) of these Terms, but in no event less than one hundred thousand dollars ($100,000.00). Upon request, Instructors shall provide to Bendii a certificate of insurance confirming such general liability coverage and/or list Bendii as an additional insured on the liability insurance policy. You agree to promptly notify Bendii of any change or lapse in your coverage.
d. Volunteerism. Bendii is a social enterprise that supports community volunteerism and wellbeing. In furtherance of this mission, after an Instructor has maintained an Account for at least three hundred sixty five (365) days, Bendii may condition continued use of the Bendii Platform on the Instructor certifying, in the manner prescribed by Bendii, that the Instructor has performed a minimum number of hours of volunteer yoga instruction during the preceding 365-day period. Bendii may, at its discretion, issue policies pertaining to such volunteer requirements, and such policies are hereby incorporated into this Agreement.
By accessing or using the Bendii Platform as an Instructor, you represent and warrant that you fulfill the eligibility requirements of this Section. Bendii has discretion to adopt additional eligibility requirements for Instructors, including but not limited to a successful interview with Bendii and background check. If Bendii determines that you are not eligible to use the Bendii Platform, it may prevent, suspend, or terminate your access to the Bendii Platform. Nothing in this Section limits Bendii’s rights under Section 8 (“Account Suspension and Termination”).
4. User Accounts, Profiles, and Content
a. Account Registration. Users shall register an account on the Bendii Platform (“Account”) by providing accurate, current, and complete information, including but not limited to your legal name, contact information, and other information that Bendii may require in its sole discretion. You agree to update your Account information to keep it accurate and complete. Bendii may alternatively allow Users to access the Bendii Platform through an existing account on a third-party platform such as Facebook or Google. Bendii must approve Instructor Accounts before they become functional or visible to other Users.
c. Account Security. Bendii takes commercially reasonable measures to protect your personally identifiable information in accordance with applicable law. In the event that you choose or are provided with a user name, password, or other information as part of Bendii’s security measures, you agree to treat such information as confidential. You shall not disclose, license, transfer, or sell your Account, user name, password, or other security information to any third party. You agree that you are solely responsible for any activities that occur under your Account, including but not limited to unauthorized activities by a third party that obtains access to your Account due to your own negligence. You agree to notify Bendii immediately of any unauthorized access to or use of your Account or any other breach of security. Bendii has the right to disable any user name, password, or other security information associated with your Account, and require their replacement, at any time for any or no reason.
d. User Content and Profiles. Bendii may require or permit Users to post, submit, publish, display, or transmit to other Users (hereinafter “post”) content, text, images, videos, and other materials (collectively, “User Content”) on or through the Bendii Platform, which may be visible to some or all Users of the Bendii Platform as a profile or other interactive feature (“Profile”).
i. License of User Content. User Content is NOT CONFIDENTAL OR PROPRIETARY. By providing User Content, you hereby grant to Bendii and its licensees, successors, and assigns a perpetual, non-exclusive, worldwide, irrevocable, royalty-free, transferable, and sub-licensable license to use, display, reproduce, modify, translate, create derivative works from, distribute, sell, and otherwise disclose to third parties your User Content for any lawful purpose, including marketing and promotional purposes. You irrevocably grant to Bendii the right to exercise all copyright, publicity rights, and other rights in and to your User Content and you waive any and all moral rights that you may have in and to your User Content with respect to this license. Nothing in these Terms will be deemed to restrict any rights you may have to use and exploit your User Content.
ii. Representations and Warranties. By posting User Content, you represent and warrant that: (a) you own or control the rights in and to the User Content and have authority to license the User Content as provided above; (b) the User Content is accurate and complies with these Terms; and (c) the User Content, and the use thereof as contemplated by these Terms, does not and will not violate any law or infringe, violate, or misappropriate any third party intellectual or proprietary right.
iii. Monitoring. BENDII DOES NOT CONTROL, IS NOT REQUIRED TO MONITOR, AND IS NOT RESPONSIBLE FOR THE CONTENT OR ACCURACY OF ANY USER CONTENT. Bendii has full discretion to do the following, without limitation, at any time: (a) remove, edit, or refuse to post any User Content; (b) take other action with respect to any User Content that Bendii deems necessary or appropriate; (c) take lawful measures in accordance with these Terms to address claims that any part of your User Content violates the law or the legal rights, including but not limited to privacy and intellectual property rights, of any other person; and/or (d) suspend your access to some or all of your Account or terminate your Account..
e. Profile Highlights and Features. To help maintain the quality of the Bendii Platform and to further Bendii’s social enterprise mission, Bendii may at any time and in its sole discretion alter the appearance or visibility of User Profiles, including but not limited to (i) highlighting certain Instructor Profiles as it deems appropriate; (ii) highlighting positive User Reviews of certain Instructors; and/or (iii) adding features to Instructor Profiles, including but not limited to indicia of volunteer hours, repeat customers, and positive User Ratings.
5. Payment, Cancellation, and Credits
b. Payment Processing. Payments transacted through the Bendii Platform may be processed by a duly licensed third-party payment processing service (“Payment Processor”) selected by Bendii in its sole discretion. By scheduling Yoga Services through the Bendii Platform, you agree to be bound by any contract for services that Bendii may enter into with such Payment Processor, as well as the terms of service and policies of the Payment Processor as they may be modified from time to time. You authorize Bendii to share with the Payment Processor any transaction information and other information that may be necessary to facilitate the payment. You authorize Bendii, and the Payment Processor engaged by Bendii, to charge or deposit applicable payments in accordance with your chosen payment method and as provided in this Section. YOU AGREE THAT BENDII HAS NO LIABILITY OR RESPONSIBILITY FOR PAYMENTS MADE THROUGH A THIRD PARTY PAYMENT PROCESSING SERVICE.
c. Instructor Access Fee. Bendii may charge Instructors a monthly access fee to use the Bendii Platform during any calendar month in which Instructors maintain an Account (“Access Fee”). Bendii shall have discretion to determine the Access Fee and may modify the Access Fee at any time by providing notice to Instructors. Continued use of the Bendii Platform after receiving notice of a change to the Access Fee amount shall constitute consent to pay the modified Access Fee.
d. Transaction Payments. The fees and payments applicable to each transaction shall be calculated, charged, and remitted as provided below:
i. Instructor Fee. Instructors shall have discretion to determine and charge a flat fee for each offered Service (“Instructor Fee”). Bendii may allow Instructors to provide discounts or special rates in accordance with the other provisions of this Agreement. Bendii may also permit Instructors to offer and establish a fee for equipment rental (“Equipment Fee”).
ii. Taxes. Instructors may elect to charge applicable sales taxes in addition to the Instructor Fee. Regardless of whether the Instructor opts to do so, collection and remittance of state and local sales taxes is the sole responsibility of the Instructor. Bendii has no liability for the non-payment of any tax owed by you due to your use of the Bendii Platform.
iii. Client Payment. The Client shall be charged an amount totaling (i) the Instructor Fee, adjusted for any applicable discounts or special rates; (ii) any applicable Equipment Fee; (iii) applicable taxes and processing fees; and (iv) if the Bendii Platform facilitates tipping, any tip or gratuity authorized by the Client (collectively, the “Charge Amount”). The Client will be charged upon booking Yoga Services with an Instructor, except that any tip or gratuity shall be authorized and charged after the completion of Yoga Services. Pending the completion of Yoga Services, some or all of the Charge Amount may be deposited in an escrow account managed by an agent that Bendii selects in its sole discretion. If the Client’s financial institution declines to process the Charge Amount, then the scheduled Yoga Services will be cancelled and Bendii may assess and charge the Client a fee not to exceed ten dollars ($10) per declined transaction.
iv. Instructor Payment. The Instructor will receive (i) the Instructor Fee less the Bendii Fee; (ii) any applicable Equipment Fee; (iii) any sales taxes collected from the Client; and (iv) any tip or gratuity authorized by the Client (collectively, the “Payment Amount”). The Payment Amount will be transmitted to the Instructor within forty-eight (48) hours after the completion of Yoga Services or, if the Client cancels Yoga Services and does not use the credit as described in Section 3e (“Cancellation of Yoga Services”), within thirty-two (32) days of the date on which the Yoga Services were originally scheduled. The foregoing notwithstanding, BENDII RESERVES THE RIGHT TO WITHHOLD INSTRUCTOR PAYMENT PENDING ANY INVESTIGATION OF FRAUD, VIOLATIONS OF THESE TERMS BY THE INSTRUCTOR, OR REPORT BY THE CLIENT PURSUANT TO SECTION 5F (“CLIENT CREDITS”). IN THE EVENT THAT BENDII DETERMINES THAT THE INSTRUCTOR HAS NOT PERFORMED THE SERVICES, HAS VIOLATED THESE TERMS, OR HAS COMMITTED MISCONDUCT WARRANTING A CLIENT CREDIT UNDER SECTION 5F (“CLIENT CREDITS”), BENDII SHALL CANCEL ANY PAYMENT TO THE INSTRUCTOR FOR THE APPLICABLE YOGA SERVICES OR, IF THE INSTRUCTOR HAS ALREADY BEEN PAID, BENDII SHALL CHARGE TO THE INSTRUCTOR AND THE INSTRUCTOR SHALL REPAY THE PAYMENT AMOUNT IN FULL.
v. Bendii Fee. Bendii shall retain thirty percent (30%) of the Instructor Fee as consideration for Bendii’s processing of the transaction and payment (“Bendii Fee”). Bendii will use commercially reasonable efforts to donate one-third (1/3) of the Bendii Fee to a charity selected by the Instructor (the “Designated Charity”) from among a list of charitable organizations approved by Bendii in its sole discretion (the “Approved Charities”). The Approved Charities shall consist exclusively of nonprofit organizations that are exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code of 1986 (the “Code”) and are not private foundations under Section 509(a) of the Code. DONATIONS TO THE DESIGNATED CHARITY ARE CONSIDERED DONATIONS OF BENDII AND NOT THE INSTRUCTOR. INSTRUCTORS ARE NOT ENTITIED TO DEDUCT THE DONATION FROM THEIR TAXABLE INCOME UNDER SECTION 170 OF THE CODE.
e. Cancellation of Yoga Services.
i. Cancellation by Client. Clients may cancel scheduled Yoga Services at any time prior to twenty-four (24) hours before the scheduled appointment and shall receive a credit for the Charge Amount, which Clients may use to reschedule Yoga Services with the same Instructor within thirty (30) days of the date on which Yoga Services were originally scheduled. The Client’s failure to use the credit within thirty (30) days shall result in forfeiture of the credit. Cancellation less than twenty-four (24) hours before of the schedule appointment will result in the Client’s forfeiture of the Charge Amount.
ii. Cancellation by Instructor. Instructors may cancel scheduled Yoga Services at any time prior to twenty-four hours before the scheduled appointment. Instructors who are more than fifteen (15) minutes late for a scheduled appointment or fail to complete the scheduled Yoga Services shall be deemed to have cancelled the Yoga Services. Upon cancellation by an Instructor, the Client will be notified and may opt to reschedule or request a credit in accordance with Section 3f (“Client Credits”). Cancellation or failure to timely arrive for scheduled Yoga Services may negatively impact your User Ratings and User Reviews. CANCELLATION OF APPOINTMENTS (1) ON LESS THAN TWENTY-FOUR (24) HOURS NOTICE, OR (2) TWO OR MORE TIMES WITHIN A 30-DAY PERIOD IS A VIOLATION OF THESE TERMS AND MAY RESULT IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT.
f. Client Credits. No refunds will be provided once a User has been charged in accordance with these Terms. A Client may be eligible for a credit of the Charge Amount if (i) the Client reports to Bendii within thirty (30) days of the scheduled appointment that the purchased Yoga Services were not performed or that the Instructor violated these Terms or committed other misconduct; (ii) the Client provides any and all information requested by Bendii to investigate the report; and (iii) Bendii determines in its sole discretion that a credit of the Charge Amount is warranted due to the Instructor’s non-performance, violation of these Terms, or misconduct. If the Client files a report within twenty-four (24) hours of the scheduled appointment, the Client may use any credit awarded by Bendii to schedule Yoga Services with any Instructor on the Bendii Platform. If the Client files a report more than twenty-four (24) hours but less than thirty (30) days after the scheduled appointment, then Bendii may impose restrictions on the use of any credit it awards. Any credit is limited to the Charge Amount and does not cover any other costs, liabilities, damages, injuries, or claims arising from or related to the Yoga Services. THIS SECTION STATES BENDII’S SOLE AND EXCLUSIVE LIABILITY, AND THE CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE YOGA SERVICES.
6. User Feedback and Misconduct Reports
a. User Ratings and Reviews. Upon the completion of Yoga Services, Bendii may provide Instructors and Clients the opportunity to rate their experience on a numeric scale (“User Ratings”) and/or provide qualitative evaluations (“User Reviews”). All User Ratings and User Reviews submitted or received by a User may be visible to all other Users of the Bendii Platform. User Ratings and User Reviews will be saved as a log for Bendii’s reference.
b. Reporting Misconduct. Instructors and Clients may report to Bendii any violations of this Agreement and/or other misconduct, including but not limited to harassment and inappropriate physical contact. Bendii has discretion, but is not required, to take any and all steps it may deem appropriate or necessary to address reported violations and misconduct, including but not limited to providing the Client with a credit of the Charge Amount in accordance with Section 5f (“Client Credits”) of these Terms, or suspending access to or terminating the reported User’s Account. BENDII SHALL NOT BE LIABLE FOR DAMAGES ARISING FROM ITS FAILURE TO ADDRESS, DELAY IN ADDRESSING, OR MANNER OF ADDRESSING REPORTS OF MISCONDUCT.
7. Prohibitions; Non-Circumvention
a. Prohibited Uses. Users shall use the Bendii Platform exclusively to seek, offer, arrange, schedule, communicate about, pay for, rate, and review Yoga Services, and not for any other purposes. You specifically and without limitation agree not to use the Bendii Platform:
i. In any way that violates, seeks to violate, or promotes the violation of any applicable law, regulation, or ordinance;
ii. To promote, offer, seek, schedule, or render any services on behalf of third parties;
iii. To promote, offer, schedule, or render any services not contemplated by this Agreement or that require medical or other professional licensure as a matter of law;
iv. To direct other Users to another platform or website where they may purchase Yoga Services;
v. For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way;
vi. To impersonate any other person or entity (including, without limitation, by using email addresses or screen names associated with another person or entity);
vii. To post or transmit false or misleading information;
viii. To inhibit or restrict any person’s use or enjoyment of the Bendii Platform;
ix. To post or transmit abusive, harassing, defamatory, threatening, obscene, profane, offensive, sexually oriented, or discriminatory material;
x. To violate or infringe upon any person’s legal rights, including intellectual property rights and rights of privacy and publicity;
xi. To monitor, harvest, collect, or store any information about Bendii or other Users without the express consent of Bendii or such Users, respectively;
xii. To post to transmit material that constitutes unsolicited or unauthorized advertising, “junk mail,” “spam,” “chain letters,” or any similar form of commercial solicitation;
xiii. To advocate, encourage, or assist any third party in doing any of the foregoing; or
xiv. To engage in any other conduct that Bendii determines in its sole discretion may expose Bendii or Users to harm or liability.
b. Damage to the Bendii Platform. You agree not to engage in conduct that may disable, overburden, damage, or impair the Bendii Platform’s appearance or functionality. You agree not to (i) use any robot, spider, or other automatic device, process, or means to access the Bendii Platform for any purpose, including monitoring or copying any of the material on the Bendii Platform; (ii) use any device, software, or routine that interferes with the proper working of the Bendii Platform; (iv) introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful; (v) attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Bendii Platform, the server on which the Bendii Platform is stored, or any server, computer, or database connected to the Bendii Platform; or (vi) attack the Bendii Platform via a denial-of-service attack or a distributed denial-of-service attack.
c. No Circumvention of the Bendii Platform. If you are an Instructor, you agree not to use the Bendii Platform to encourage or direct any Client to schedule your Yoga Services through any platform or method other than the Bendii Platform. You shall not use the Bendii Platform to provide any Client with your website(s) or social media account(s). You further agree that, for six (6) months after providing Yoga Services to a Client scheduled through the Bendii Platform, you shall not provide Yoga Services to the same Client except as scheduled through the Bendii Platform. In the event that a Client requests additional Yoga Services after your arrival at the site of scheduled Yoga Services, you agree to schedule such additional Yoga Services using the Bendii Platform. If you are an Instructor who violates this Section 7, in addition to all other remedies available to Bendii under the terms of this Agreement or applicable law, including but not limited to injunctive remedies, you agree to be liable for and remit to Bendii all applicable fees that Bendii would have received had the relevant Yoga Services been scheduled through the Bendii Platform.
8. Account Suspension and Termination
Bendii reserves the right to suspend your access to your Account or terminate your Account at any time, without notice, for any or no reason, including without limitation if Bendii determines in its sole discretion that you have violated this Agreement. You may terminate your Account at any time by notifying Bendii or following the instructions on the Bendii Platform. Termination of your Account means that your Profile will no longer be visible to other Users.
The terms of this Agreement, including any subsequent modifications and policies incorporated herein, shall remain in full force and effect at all times after the termination of your Account.
9. General Disclaimers; Waiver of Liability; Indemnification
a. No Warranties. THE BENDII PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BENDII MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE BENDII PLATFORM, DOWNLOADED MATERIAL FROM THE BENDII PLATFORM, AND YOGA SERVICES OBTAINED THROUGH THE BENDII PLATFORM, INCLUDING BUT NOT LIMITED TO: (I) ANY IMPLIED WARRANTY OF GOOD AND WORKMANLIKE SERVICES, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR COMPLIANCE WITH APPLICABLE LAW; (II) ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; (III) ANY WARRANTY THAT THE BENDII PLATFORM, DOWNLOADED MATERIALS FROM THE BENDII PLATFORM, OR YOGA SERVICES OBTAINED THROUGH THE BENDII PLATFORM WILL BE SECURE, RELIABLE, COMPLETE, AVAILABLE, ERROR-FREE, UNINTERRUPTED, FREE FROM VIRUSES AND OTHER HARMFUL COMPONENTS, OR OTHERWISE CONSISTENT WITH YOUR NEEDS AND EXPECTATIONS; AND (IV) ANY WARRANTY THAT DEFECTS WILL BE CORRECTED.
b. Disclaimer of Third Party Disputes. BENDII IS NOT RESPONSIBLE FOR THE ACTIONS OR OMISSIONS OF ANY USER OR OTHER THIRD PARTY (“THIRD PARTY”). ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION THAT ARISE DUE TO THE CONDUCT OF A THIRD PARTY SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THIRD PARTY. BENDII IS NOT A PARTY TO ANY DISPUTE THAT MAY ARISE BETWEEN YOU AND A THIRD PARTY. YOU IRREVOCABLY RELEASE AND HOLD HARMLESS THE BENDII PARTIES (AS DEFINED IN SECTION 9c (“Waiver of Liability”)) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Assumption of Risk. You understand that using an internet service or mobile application such as the Bendii Platform involves various risks, including but not limited to (i) property loss and other damage caused by distributed denial-of-service attacks, viruses, and other malware that may infect your electronic device(s); (ii) theft, unauthorized disclosure, misuse, and/or sale of your personally identifiable information and other confidential data; and (iii) exposure to User Content and communications that may be inaccurate, incomplete, misleading, harmful, harassing, abusive, offensive, indecent, sexually explicit, or otherwise objectionable. You further understand that using the Bendii Platform to schedule the provision of Yoga Services may expose you to the risk of property damage and loss, bodily injury, emotional distress, illness, disability, and death. AS A USER, YOU KNOWINGLY AND VOLUNTARILY ASSUME THESE RISKS OF HARM AND RELEASE BENDII FROM ALL LIABILITY ARISING FROM THESE HARMS.
c. Waiver of Liability. To the fullest extent permitted by law, you, on behalf of yourself and your heirs, representatives, agents, executors, successors, transferees, assigns, agents, and attorneys, agree to irrevocably waive, release, and forever hold harmless Bendii and its members, directors, officers, managers, employees, agents, affiliates, successors, and assigns (collectively, the “Bendii Parties”) from any and all claims, liabilities, demands, actions, and damages, known now or hereafter known, for any loss, injury, death, property damage, or other harm arising from or related to your use of, or inability to use, the Bendii Platform (“Claims”), whether attributable to the negligence of the Bendii Parties or otherwise, and whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. To the furthest extent permitted by law, you covenant not to bring any such Claims against the Bendii Parties.
UNDER NO CIRCUMSTANCES WILL THE BENDII PARTIES BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR LOSS OF DATA.
TO THE EXTENT THAT CLAIMS ARE NOT EXCLUDED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF THE BENDII PARTIES TO YOU FOR ALL CLAIMS, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU PAID TO BENDII FOR ACCESS TO AND USE OF THE BENDII PLATFORM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO THE CLAIM; AND (II) ONE THOUSAND DOLLARS ($1,000.00).
d. Indemnification. You, on behalf of yourself and your heirs, executors, and assigns, agree to indemnify, defend, and forever hold harmless the Bendii Parties from and against any and all claims, losses, expenses, liabilities, judgments, damages, awards, costs, or fees (including reasonable attorneys fees) arising from or relating to your acts or omissions or those of your officers, directors, agents, employees, successors, OR assigns, including but not limited to your violation of this Agreement, YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, AND ANY DISPUTE BETWEEN YOU AND ANY THIRD PARTY.
e. Essential Elements. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION, OR OTHER EXCLUSION OF DAMAGES CONSTITUTES AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN YOU AND BENDII, WITHOUT WHICH THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO.
10. Disclaimers Regarding Third Party Services
a. General. Your use of the Bendii Platform may facilitate or require your access to and/or use of third party networks, software, websites, programs, systems, directories, applications, products, or services, including through advertisements and links on the Bendii Platform (“Third Party Services”).
b. Disclaimers. Bendii HAS NO liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against Bendii with respect to any Third Party Services. You specifically understand and agree as follows:
i. Bendii does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services, Bendii does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services.
iii. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content that may be included on or with any Third-Party Services.
11. Intellectual Property; Limited License
a. Ownership of Intellectual Property. The Bendii name, service mark(s), and the Bendii Platform and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (“Intellectual Property”), are owned by Bendii, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. This Agreement does not transfer any right, title, or interest in or to the Intellectual Property to you except as expressly provided in this Section. Bendii reserves all rights to the Intellectual Property not expressly granted herein.
b. Limited License. Your agreement to these Terms constitutes acceptance of a personal, limited, revocable, non-transferable, non-exclusive, non-sublicenseable license (“License”) to use the Bendii Platform on compatible, authorized devices that you own or control, solely for your own use or the use of the organization you represent, and solely as permitted by these Terms. You may not modify, alter, reproduce, distribute, lease, sublicense, sell, decompile, reverse engineer, disassemble, attempt to derive the source code of, or create derivative works of any portion of the Intellectual Property (except to the extent that this restriction is prohibited by applicable law or the terms of any Third Party Service), nor attempt to disable or circumvent any security or technological measure designed to protect the Bendii Platform. You must abide by all additional copyright notices or restrictions contained on the Intellectual Property and may not delete any legal or proprietary rights notices on the Intellectual Property. This License terminates immediately upon the termination of your Account by you or Bendii.
c. Instructor Display of Bendii Name and Logo. If you are an Instructor, your License includes the right to display the Bendii name and logo solely for the purpose of publicizing the Bendii Platform as a means of scheduling your Yoga Services. You shall not use the Bendii name or logo in any manner that Bendii determines in its sole discretion is obscene, defamatory, or otherwise detrimental to the reputation or goodwill of Bendii. Bendii may prescribe the appearance, size, color, or other restrictions on your use of the name or logo. You shall not combine the Bendii name or logo with the name or logo of any other person, business, or entity. Upon request, you shall disclose and provide copies to Bendii of all uses of the Bendii name and logo.
d. Breach of License. If you breach any of the License restrictions, you may be subject to prosecution and damages, liability for infringement of intellectual property rights, termination of your Account, and/or ineligibility for future use of the Bendii Platform. In the event of a breach, Bendii may, in its sole discretion, demand that you return, destroy, delete, and/or permanently expunge any and all materials, including electronic materials, which violate the terms of this License. You agree to promptly and completely comply with any such demand, certify your compliance in writing to Bendii, and take any and all actions demanded by Bendii to remediate the breach of this License and prevent further misuse of the Intellectual Property.
a. Bendii’s Confidential Information. In the event that you receive or gain access to Confidential Information (defined below), you agree that you will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) such Confidential Information for any purpose, except as expressly authorized by Bendii in writing or required by law. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer, or use. You shall promptly notify Bendii in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall promptly return, destroy, delete, and/or expunge, as may be applicable, all copies (including electronic copies) of Confidential Information. The term “Confidential Information” means any and all confidential and proprietary information of Bendii and all other information and data of Bendii that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its disclosure or use. Confidential Information shall be deemed to include, without limitation, trade secrets, technical data, know-how, research, plans, customer data, market research and data, software, developments, inventions, processes, formulas, technology, designs, drawings, hardware configuration information, and marketing, financial, and other business information, whether disclosed or accessed directly or indirectly, in writing, by visual depictions, orally, by observation, or in any other manner.
b. Information of Other Users. In the course of using the Bendii Platform, you may learn confidential and/or private information of other Users that is not generally known to the public. Except as required by law, as expressly authorized by the other User, or as necessary to complete a transaction authorized by the other User, you agree that you will not disclose, transfer, or use their confidential and/or private information, including their addresses, telephone numbers, or financial information.
13. Mandatory Arbitration of Disputes
a. Generally. In the interest of resolving disputes between you and Bendii in the most expedient and cost-effective manner, YOU AND BENDII MUTUALLY AGREE TO RESOLVE EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT BY BINDING ARBITRATION, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS. 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 this Agreement, 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 this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BENDII ARE EACH WAIVING THE RIGHTS TO LITIGATE CLAIMS IN COURT, TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
b. Exceptions. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of Users or Bendii to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; (iv) to file suit in a court of law to address an intellectual property infringement claim; or (v) to file a class action suit where federal statutory law precludes class action waivers. Nothing in this Agreement shall impair or affect Bendii’s ability to pursue debts owed to Bendii by Users through a duly licensed collections agency.
c. Arbitration Rules. Except as expressly provided in these Terms, any arbitration between you and Bendii will be conducted by the American Arbitration Association (“AAA”) in accordance with AAA rules. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Bendii.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) 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 Bendii may commence an arbitration proceeding. There shall be one arbitrator mutually selected by you and Bendii, except that if you and Bendii cannot agree upon an arbitrator, then an arbitrator shall be chosen in accordance with AAA rules. During the arbitration, the amount of any settlement offer made by you or Bendii must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In addition to other amounts awarded, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
e. Location. Any arbitration hearing will take place at a mutually agreed-upon location in Davidson County, Tennessee, unless you and Bendii agree that arbitration will be conducted: (i) solely based on documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in a mutually agreed upon location outside of Davidson County, Tennessee.
f. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND BENDII 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 Bendii 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, to the fullest extent permitted under applicable law.
g. Modifications to this Arbitration Provision. If Bendii makes any future change to this arbitration provision, other than a change to Bendii’s address for Notice, you may reject the change by delivering written notice within 30 days. If you reject the change, your Account with Bendii will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
h. Enforceability. If any part of this Section is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
By becoming a User, you consent to receive electronic and other communications from us, including via electronic mail, text message, telephone calls (including autodialed or prerecorded calls), and push notifications to the telephone number or email address associated with your Account. Standard telephone minute charges may apply to such communications. If you wish to opt out of any promotional communications, you may do so by following the unsubscribe options provided to you in such communications.
Bendii has discretion to, without further notice or warning, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control, training purposes, and to protect Bendii’s rights. We may, without further notice or warning, access, store, use, and disclose the messages, call transcripts, and data about calls and messages between and among Users that occur through the Bendii Platform for our business purposes, including improving customer service, preventing and detecting fraud, and identifying violations of these Terms.
15. Development and Testing
For purposes of developing and testing the Bendii Platform, on occasion Bendii through its agents may schedule Yoga Services on the Bendii Platform. On such occasions, the contract for such Yoga Services shall be between Bendii and such User and shall be governed by the applicable terms of this Agreement.
16. Notice Regarding Apple
If you are using our mobile applications on an iOS device, the terms of this Section apply. You acknowledge that these Terms are between you and Bendii only, not with Apple, and Apple is not responsible for the Bendii Platform or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Bendii Platform. If the Bendii Platform fails to conform to any applicable warranty, you may notify Apple and Apple may refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Bendii Platform. Apple is not responsible for addressing any claim by you or any third party relating to your possession or use of the Bendii Platform, including: (a) product liability claims; (b) any claim that the Bendii Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
17. Additional Provisions
a. Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Tennessee, notwithstanding any conflicts of law principles. For all disputes not subject to arbitration under Section 13 (“Mandatory Arbitration of Disputes”), you agree to submit to the personal jurisdiction and venue of the courts located within Davidson County, Tennessee, and waive any and all objections to the exercise of such jurisdiction over you by such courts and to venue in such courts.
b. No Waiver. Waivers of any of these Terms shall be in writing. No failure or delay by Bendii to enforce the terms of this Agreement shall be construed as a waiver thereof.
c. Severability. Except as provided in Section 13 (“Mandatory Arbitration of Disputes”), if a court or other tribunal of competent jurisdiction deems any provision of this Agreement to be invalid, illegal, or unenforceable for any reason, the remaining provisions will continue in full force and effect.
d. Assignment. You may not assign or transfer any rights or duties under this Agreement without Bendii’s prior written consent. Bendii shall have sole discretion to assign or transfer its rights or duties under this Agreement upon the delivery of notice in accordance with Section 17e (“Notices”).
e. Notices. Except as otherwise provided by these Terms, any notice to Bendii shall be delivered by email to email@example.com. Bendii may deliver notice to you electronically through the Bendii Platform or to the email address associated with your Account, and such notice shall be effective immediately upon sending. Alternatively, Bendii may deliver notice by certified mail, postage prepaid and return receipt requested, to the address associated with your Account, and such notice shall be deemed effective three (3) days after its deposit in the postal system.
f. Relationship of the Parties. You and Bendii are independent contractors, and no part of this Agreement shall be construed to create an agency, partnership, joint venture, employer-employee, contractor-subcontractor, or franchisor-franchisee relationship.
g. Section Headings. The section headings contained in these Terms are for convenience only and shall not affect in any way the meaning or interpretation of these Terms.