Terms Of Service

These Terms of Service (the “Agreement”) form a legal agreement between you and Habitly Inc. (“Habitly”) respecting your use of Habitly services as described herein and on Habitly’s website.  BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  For the purposes of this Agreement, “You” or “you” means (a) you as an individual, or (b) your company, organization, or other entity, if you are agreeing to this Agreement on behalf of such company, organization, or other entity and are authorized to bind and act for such company, organization, or other entity.  If you have any questions or concerns about the terms of this Agreement, please contact us at info@habitlyfit.com.

1.     Definitions

1.1.     “Account” means the registration and other information you provide to Habitly described in Section 2.2 below.

1.2.     “Classes” means the fitness or other types of classes and associated services that you wish to offer Clients through, facilitated by, or initiated with the Services.

1.3.     “Client” means an individual registering for your Classes through the Services.

1.4.     “Client Information” means any information provided by Clients to you relating to the Client’s use of the Services or the Classes.

1.5.     “Content” means the livestream and recorded materials and other materials or information that is provided by you to Habitly or Clients in relation to the Services and/or Classes.

1.6.     “Payment Account” means the payment processor account(s) described in Section 2.2(b).

1.7.     “Services” means the services described in Section 2.1 below.

1.8.     “Site” means Habitly’s website through which Services are provided, accessible at www.habitlyfit.com.

1.9.     “Virtual Studio” means the private virtual subsection of the Site through which you will provide Classes and Content.

2.     The Services

2.1.   What they are.  Habitly provides through the Site the ability for users to reserve, schedule, purchase, access and attend a wide range of virtual fitness, recreational and wellness classes and services, offered by Habitly and third party providers and instructors.  Subject to the provisions of this Agreement, Habitly will provide you with a Virtual Studio on the Site through which you can offer Classes and allow Clients to reserve, schedule, purchase, access and attend your Classes, as well as post your Content and interact with Clients in relation to your Classes (the “Services”). Clients must agree to Habitly’s Website Terms of Use in order to use the Site and attend Classes and access Content.  The Services are provided subject to the terms and conditions of this Agreement and Habitly’s policies posted on the Site.  The Site, Virtual Studio and Services are intended only to facilitate the provision of Classes and Content via Habitly’s online platform; as Habitly is not a gym, health club, facility, fitness studio or similar establishment, Habitly’s role is solely to facilitate the availability of the Site, Virtual Studio and Services to you and other users, and is not in any way responsible for any third party content obtainable through the Site or Services, including without limitation your Classes or Content, or video feeds provided to you by Clients through the Site.  Habitly is not a contracting agent or representative of you or any Client. You acknowledge that you are an independent contractor, determining without inducement that the Services may be useful in your business.

2.2.   Registration and Other Preliminaries to Accessing the Services. 

You must:

(a)   provide up-to-date, complete and accurate registration information, which may include your first and last name, your address, your phone number, your age, and your valid email address, and your Access Information, as described in Section 2.3 below.  If you are not over 18, your parent or guardian must enter into this Agreement and provide your details as well as their details, together with their consent to your use of the Site, Virtual Studio and Services;

(b)   where required, provide up-to-date, complete and accurate account information for Habitly’s preferred payment processor that is valid and legally registered to you, and ensure that you have sufficient funds to make the payments required hereunder, so that Habitly is able to accept payments from you; and

(c)    be at all times in compliance with the terms and conditions of this Agreement and applicable law.

Please note that the third party payment processor used by Habitly may require you to input your Social Insurance Number or certain other information that is your personal information.  Such information is NOT stored by Habitly, and any processing and storage of such information will be done by the third party payment processor and subject to their privacy and security policies. You specifically agree that Habitly may rely on the accuracy of the information provided by you to Habitly, and that Habitly will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Habitly.

2.3.   User IDs.  Habitly provides you with the ability to create a user ID and password (the “Access Information”).  The Access Information is provided on the understanding that it is personal to you; you will not permit anyone other than you to obtain access to the Services using the Access Information.  Habitly is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by anyone accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.

2.4.   No Liability for Classes and Content.  You acknowledge that the relationship between Habitly, Clients and you is that of independent contractors; nothing in this Agreement shall imply that you are Habitly’s employee or agent, nor that Habitly has any responsibility to assess, investigate or evaluate any users of the Site, or content provided by you or other users of the Site.  Habitly expressly disclaims any representation that it has any supervision, control or direction over Clients, Content, Classes or third party instructors (including you), or that it can guarantee anything on behalf of you or Clients or Advisors, including without limitation, fitness level, abilities, background, qualifications, or the quality of the Classes and Content.  Habitly’s sole responsibility under this Agreement is to provide Clients with the descriptions of Classes and Content posted by you, enable you and Clients to interact through the Site and Virtual Studio, make reasonable efforts to facilitate communications between you and Clients (including in the event of any dispute), and collect and remit payments as described in the fee section herein.  ALL ACTS UNDERTAKEN BY YOU PURSUANT TO THE SERVICES IS AT YOUR OWN RISK, AND ALL GUARANTEES AND REPRESENTATIONS MADE BY YOU OR CLIENTS ARE THEIR RESPONSIBILITY, NOT ENDORSED BY HABITLY.  YOU UNDERSTAND AND AGREE THAT HABITLY IS NEITHER A PARTY TO ANY AGREEMENT ENTERED INTO BETWEEN YOU AND A CLIENT NOR DOES HABITLY HAVE ANY CONTROL OVER THE CLASSES AND CONTENT OR THE CONDUCT OF YOU, CLIENTS, AND OTHER USERS OF THE SITE, VIRTUAL STUDIO AND SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.

2.5.   Suspension of Services.  Habitly reserves the right to change, suspend or discontinue the Services or any part of the Services at any time, including the availability of any feature or content, account access, or any promotion offered by Habitly.  Habitly may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.

2.6.   Use Services at Your Own Risk.  You acknowledge that your use of the Services may result in access to references to third parties, links to third party websites or documents, and other third party information.  Such third party websites, documents, information, opinions, advice or statements (including those made by users of the Site, including Clients) are not under the control of Habitly, and Habitly is not responsible or in any way liable for their contents, including without limitation their accuracy, reliability, copyright compliance, legality, decency, or any other aspect of their content.  All content obtained through the Services is provided on an “AS IS” basis, and although Habitly will make reasonable attempts to respond to content and conduct complaints in a timely manner, Habitly makes no warranties or guarantees whatsoever that content or conduct that is offensive to any one particular user will be removed, or that any particular user will be barred from using the Site. OTHER THAN TO THE LIMITED EXTENT REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL HABITLY BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICES.

2.7.   Disclaimer.  You are solely responsible for all equipment necessary to access and use the Site, Virtual Studio and Services. Habitly is only providing the platform through which Classes and Content may be offered, and is not responsible for: (a) any delays or cancellations in relation to Classes and Content, (b) unsuccessful experiences with Classes and Content, (c) any delay in posting Classes or Content, (d) personal issues between you and Clients, (e) the effectiveness of the Virtual Studio in meeting your needs, (f) pricing of the Classes and Content, (g) issues with your computer equipment, mobile device, the Internet, or your ISP in accessing or using the Services, or (h) charges relating to your wireless network carrier or use of your mobile device in using the Services.

3.     Content and Classes

3.1.   Grant of Distribution Rights.  Subject to the terms and conditions of this Agreement, you hereby grant to Habitly, during the Term of this Agreement, the following rights on a personal, non-exclusive, royalty free, and fully paid up basis:

(a)   to use, copy, reproduce, transmit, broadcast, publish, display, maintain, modify, and enhance, the Content or any part thereof for the purposes of incorporating the Content into the Site and Virtual Studio and for the purposes of promoting, marketing, distributing and providing access to the Content to Clients;

(b)   to promote, market, distribute, export, import, and sublicense the Content and Services to Clients or potential Clients solely in connection with Habitly’s services.

3.2.   Content Requirements.  All Content will be delivered to Habitly in accordance with Habitly’s standard submission policies (which may include format, size and content requirements), as may be amended from time to time by Habitly.

3.3.   Classes and Content Warranties.  You warrant that:

(a)   The Content is true, accurate, current and complete;

(b)   You have the absolute right to provide the licenses in and to the Content contemplated in this Agreement;

(c)   You have the necessary knowledge, experience and skills to provide the Classes, and possess all necessary qualifications to provide the Classes and Content;

(d)   You will provide the Classes in a competent and professional manner and in accordance with industry “best practices”;

(e)   You will be solely responsible for all activities you undertakes with respect to the Content and Classes;

(f)    You will not use your contact with Clients for any commercial purposes other than providing the Classes, or as otherwise expressly agreed upon between you and the Clients in advance, and for greater certainty, you must not utilize the Site or Services as a means to obtain Clients for the purpose of providing Classes or similar services through any other platform or website;

(g)   You must provide all Classes and Content in accordance with the fee schedule that you post through the Site, and for greater certainty, must not impose additional or hidden costs on Clients without their express, prior, written consent;

(h)   You must attend all Classes, appointments and sessions booked through the Site punctually and within the scheduled time;

(i)     You must respond to inquiries from Clients in a timely manner;

(j)     The Content does not contain any confidential or proprietary materials of any former client or employer of you, or of any other third party, unless you have the express permission of the owner of such materials to use it as contemplated in this Agreement;

(k)   The Content and Classes will not infringe any proprietary or intellectual property rights of any third party;

(l)     You have obtained all consents and permissions necessary from any third party in relation to any photographs, videos, or other likenesses or personal content that may be present in the Content, permitting you to use such materials in the Content, and will clearly inform Clients in the Classes of their rights and responsibilities in relation to viewing and recording any Content, including other attendees of the Classes; and

(m)  You shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over the Content or any part thereof, including without limitation any privacy laws and any laws and regulations designed to protect minors.

3.4.   Fees for Classes and Content.  You are solely responsible for setting fees for your Content and Classes, and for collecting such fees from the Clients.  Habitly may offer you, as a convenience, the ability to connect to a third party payment processor through the Site to collect payments from Clients.  In such event, you will be responsible for creating and maintaining your account with the third party payment processor, and all such payments shall be subject to the terms and conditions imposed by such third party payment processor for the use of their services.  Habitly shall not be responsible in any respect for payments made to you through such third party payment processor, nor for the availability to connect to such third party payment processor through the Site.

3.5.   Promotion and Marketing.  In engaging in any promotion and marketing activities respecting the Content and/or Classes, or in otherwise referencing Habitly in any communication, you shall:

(a)   not engage in deceptive, misleading, illegal or unethical practices that might reasonably be detrimental to Habitly or Clients; and

(b)   not make any representations, warranties or guarantees about Habitly, the Services, the Virtual Studio or the Site, unless expressly authorized in writing by Habitly.

3.6.   You acknowledge that Habitly may independently obtain content and services from third parties, including from other users, that are similar to the Content (“Third Party Content”).  You agree that use of the Third Party Content by Habitly or Clients will not constitute infringement of your intellectual property or a breach of this Agreement, and that Habitly shall have no liability whatsoever for any damages resulting from the similarity of Third Party Content to the Content or Classes.  Habitly’s sole responsibility with respect to any conflict between Third Party Content and the Content or Classes shall be to comply with any legal orders obtained by you or the applicable user or other third party pertaining thereto.

3.7.   In the event that Habitly receives any queries, comments or complaints respecting you or your Content, or Classes, Habitly shall be entitled to direct all such queries, comments or complaints to you for direct response or may contact you to obtain such required information at your expense.

4.     Rules for Using the Services

4.1.   Your Obligations.  Your use of the Services is conditional upon you following the rules below. Without limiting the below restrictions, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.

(a) Keep your Access Information to yourself. 

You will not permit anyone other than you, as an individual, to obtain access to the Services through your Habitly account or otherwise using your Access Information.

(b) Use the Services in a legal manner.

You must only use the Services in accordance with this Agreement and applicable law, and you represent and warrant that you have the right and the authority to enter into this Agreement and to use the Services.  You must comply with the terms and conditions of any agreements entered into between you and any third party (including without limitation Internet service providers), and to the extent that such agreements impose additional restrictions respecting your use of the Services (whether by reason of usage limitations or otherwise), you will use the Services in compliance with such restrictions.

(c) Be civil and respectful.

You will at all times during your use of these Services and your transactions and interactions with other users, act in a civil, courteous and respectful manner, and will not take any action that could reasonably endanger or damage the health, well-being or property of Habitly, Clients, other users of the Services or any third party with whom you may have contact in connection with the Services.

(d) Be truthful and accurate.

You must ensure that any information that is provided to Habitly and other users through the Services pursuant to this Agreement is true, accurate, current and complete, to enable Clients to assess accurately whether or not the Classes and Content will be reasonably suitable for their needs, and to enable Habitly to provide the Services.

(e) Respect the rights of others.

You must ensure that you have the right, and have obtained all relevant permissions, to provide Habitly with any content that you may post, and you must handle any information you obtain about other users as a result of the Services in accordance with the privacy and confidentiality provisions of this Agreement.

(f)  Don’t use the Services to harm anyone or to commit crimes.

You must not in any way use the Site or Services to: (i) harass, abuse, defame, defraud, or deceive any other users or other third parties, (ii) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (iii) engage in defamatory, obscene, pornographic, vulgar or offensive behaviour or activities, or (iv) to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any harassment, any infringement of intellectual property rights, any fraudulent activities, any deceptive impersonation, any activities involving the exploitation of children, or any activities that violate any third party’s privacy rights.

(g) Be responsible.

You will be solely responsible for all activities with respect to activities undertaken by you through the Services, including accessing and posting content, and you will perform those activities to the best of your abilities, in a professional manner.

(h) Use the Services only for the purposes for which it is intended.

You will use the Services only for the intended purposes, which includes not using the Services to provide to third parties, for a fee or other consideration, a product or service whose value derives, entirely or substantially, from the functionality of the Site or Virtual Studio, other than your use of the Services in accordance with this Agreement.

(i)  Don’t harm any security or computer systems.

You will ensure that your use of the Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including Habitly and other users of the Services (including by ensuring that you do not upload any viruses or other harmful code in using the Services).  This includes not: (i) taking any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfering or attempting to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypassing, circumventing or attempting to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) running any form of auto-responder or “spam” on the Services; (v) using manual or automated software, devices, or other processes to “crawl” or “spider” any page of our websites; (vi) harvesting or scraping any content from the Site; or (vii) otherwise taking any action in violation of our guidelines and policies.

(j)  Don’t spam.

You must not make any Submissions that would constitute unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”).  You must also refrain from using the Services in any way connected with any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.

(k) Help to investigate.

You will cooperate with Habitly and provide information requested by Habitly to assist Habitly and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.

5.              Fees for Services

5.1.          You agree to pay all applicable fees in connection with the Services, as agreed upon in writing between you and Habitly.  You authorize Habitly to automatically charge you for any and all fees incurred by you for Services.  Habitly reserves the right to change its standard price list and to institute new charges at any time upon notice to you, which notice may be provided by means of updates on the Site. Unless you and Habitly have agreed upon specific fees for the Services applicable to a specific period of time, use of the Services following such changes constitutes your acceptance of any new or increased charges.

5.2.          At Habitly’s options, payments may be made by directly to Habitly or processed by a third-party payment processor. Where payments are made through a third-party payment processor, Habitly will not obtain any of your payment information, except to the extent that you specifically and intentionally disclose such information directly to Habitly, and the processing of payments or credits, as applicable, in connection with your use of the Services will be subject to the terms, conditions and privacy policies of the payment processor and your credit card issuer in addition to this Agreement.  Habitly is not responsible for any errors by the payment processor or your credit card issuer.  Provision of the Services to you is subject to payment in full, whether by cheque or through the third-party payment processor

5.3.          If you fail to pay any amount due under this Agreement within thirty (30) days of such payment becoming due and payable, in addition to any other rights and remedies available to Habitly, Habitly shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment.  You shall also be responsible for paying for all reasonable fees and costs incurred by Habitly, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.

5.4.          You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of Habitly.  Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Services or Software, the execution of this Agreement or otherwise.  If you are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to Habitly shall equal the amount invoiced or otherwise due.

6.     Submissions and Habitly Content

6.1.   Submissions.  Any posts, comments, suggestions for improvement, or other messages, either provided to Habitly directly or by posting on the Site, including the Virtual Studio (each, a “Submission”), is: (a) if posted to a public area on the Site, considered non-confidential and may be disseminated or used by Habitly and by any third party accessing the Services, for any purpose whatsoever, and (b) if posted to a limited-access area on the Site or in a Virtual Studio, may be disseminated or used by Habitly and by any third party accessing the Services for the limited purpose associated with such limited-access area.  All Submissions made by you are solely your responsibility, and it is your responsibility to ensure that your Submissions do not contain personal or private information, as defined by applicable law, either belonging to you or to any other third party, unless the person owning the personal or private information has provided their specific consent to such use.  Habitly has no liability whatsoever related to any Submission made or accessed by you.  This provision does NOT apply to personal information that is subject to Habitly’s Privacy Policy (including your registration information) except to the extent that you make such personal information publicly available on or through the Site.  Notwithstanding the foregoing, Habitly reserves the right to remove any Submission from the Site if such Submission violates this Agreement or any other written policy or terms of use published by Habitly from time to time, or is otherwise objectionable, as determined by Habitly, in its sole discretion.

6.2.   License to Habitly Content.  Subject to your compliance with the terms and conditions of this Agreement, Habitly grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Habitly content solely for your personal and non-commercial purposes; and (ii) to access, modify, edit and download any third-party content to which you are permitted access, subject to any permission restrictions imposed on such content by the owner of such content, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.  You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Virtual Studio, Services or any content (whether Habitly content or third party content), except as expressly permitted in this Agreement.

7.     Privacy and Confidentiality

7.1.   Privacy Policy.  Your personal information will be handled in accordance with Habitly’s Privacy Policy.  To view Habitly’s Privacy Policy, please visit the following URL: www.habitlyfit.com/terms/.  Notwithstanding the foregoing, Habitly reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request.

7.2.   Consent to Information Use.  Additionally, by submitting personal information to Habitly pursuant to this Agreement, including without limitation your name and e-mail address, you consent to the collection, processing, transmission and disclosure of such information by Habitly for the purposes of Habitly’s provision of the Services and Habitly’s internal use and specifically the purposes for which such information has been requested.  You specifically agree that Habitly may disclose such information to third parties to the limited extent necessary to provide you with the Services.

7.3.   Information Provided Between Users.  You acknowledge and agree that any information provided to you in the course of using the Services (including with respect to the Classes and Content) in relation to any other user, including Clients (such as name and contact information, and any health or personal related information) is to be considered the personal information of such user, is to be kept confidential by you, and is to be used by you only for the purposes of providing the Classes and Content.  You shall also be bound by any confidentiality and privacy obligations set forth in any applicable professional code of ethics or similar regulations when providing or performing the Classes and Content.  Any other use is strictly prohibited, unless you have the express consent of that specific individual for such other use.  In the event that you do not have the express permission of such individual to retain such information, you agree to destroy or permanently delete such information promptly upon completion of your interactions with such user.  No photographs, videos, or other types of recordings of an individual may be made or used for any reason without that individual’s express prior written consent.

8.     Intellectual Property Rights

8.1.   Ownership of Intellectual Property.  You acknowledge that the Site, Virtual Studio and Services are owned by Habitly, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws.  In addition, other intellectual property laws (including patent laws) and treaties may protect the Site, Virtual Studio and Services.  It is therefore your responsibility to fully comply with such laws in using and handling the Site, Virtual Studio and Services.

8.2.   Rights in Intellectual Property.  You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Services, or any part thereof.  Your only rights to the Site, Virtual Studio, Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement.  Any rights not expressly granted under this Agreement are reserved.  Without limiting the foregoing, you are not permitted to use, display, mirror or frame the Site or Virtual Studio, or any individual element within the Site, Virtual Studio or Services, Habitly’s name, any Habitly trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Habitly’s express written consent.

8.3.   Third Party Intellectual Property.  All intellectual property rights in third party content accessible through the Services are the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such content, and the unauthorized reproduction or distribution of such third party content is prohibited by applicable law.

9.     Disclaimer of Warranties

9.1.   No Warranty.  THE SERVICES ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY.  HABITLY ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES.  UNDER NO CIRCUMSTANCES WILL HABITLY BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE SERVICES, SITE OR VIRTUAL STUDIO.  IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES, SITE AND VIRTUAL STUDIO IS SOLELY AT YOUR OWN RISK. 

9.2.   Your Sole Responsibility.  Habitly has no special relationship with or fiduciary duty to you, and you acknowledge that Habitly has no control over, and no duty to take any action regarding any acts or omissions taken by you or any other user of the Site, including without limitation: (a) which users use the services offered by Habitly, (b) which Clients attend your Classes or access your Content and how they may behave, (c) what content you or other users post on, or transmit through, the Services, (d) how you or any other user may interpret or use any content posted on or obtained through the Services, or (e) what actions you or any third party may take as a result of use of the Services by you or any other user.  Habitly makes no representations or warranties whatsoever concerning any information available through the Services, and Habitly will not be responsible or liable for in any way for any such information, including its accuracy, suitability for your needs, quality or reliability (whether in individual or aggregate form), or the timeliness or currency of any data obtained through the Services.  You are solely responsible for evaluating whether the Services suit your needs.

10.  Limitation of Liability

10.1.                Limited Damages Only.  The only type of damages that can be recovered against Habitly arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, arising as a result of Habitly’s gross negligence or wilful misconduct.  IN NO EVENT WILL HABITLY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SITE, VIRTUAL STUDIO OR SERVICES EXCEED THE AMOUNT OF ALL AMOUNTS YOU HAVE PAID IN CONNECTION WITH THE SERVICES  DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD, OR FIVE HUNDRED DOLLARS (CAD$500.00) (WHICHEVER IS LESS). HABITLY SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES.

10.2.                No Indirect Damages.  EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HABITLY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF HABITLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

11.  Indemnification

11.1.      Your Responsibility to Indemnify.  You agree to indemnify, defend and hold harmless Habitly, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (a) your use or misuse of the Services, (b) any breach of this Agreement by you, (c) the infringement by you, or any third party obtaining access to the Services using your Access Information, of any intellectual property or other right of any person or entity, or (d) your violation of any third-party rights or any applicable laws. Habitly reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Habitly, at your expense, in asserting any available defences.

12.  Termination

12.1.      Termination by You.  You may terminate this Agreement at any time upon notice to Habitly.  Upon any termination of this Agreement for any reason (whether by you or by Habitly), you must cease all use of the Services.

12.2.      Termination by Habitly.  Habitly reserves the right, in its sole and complete discretion, to revoke your authorization to use the Services at any time with or without cause, for any reason or no reason. Upon termination of your account, your right to use the Services, access any information through the Services, and use any materials obtainable through the Services will immediately cease. Any fees paid by you, if any, are non-refundable.  All restrictions contained in this Agreement shall survive the termination of your right to use the Services.

12.3.      Effect of Termination.  Upon termination of this Agreement, Habitly will return or permanently delete your Content.  Habitly has no obligation to maintain your Content for any period of time after termination, and it is your sole responsibility to download or otherwise backup your Content during your use of the Services, prior to any termination.

12.4.      Additional Remedies.  Without limiting other remedies, Habitly may limit your activity, warn other users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) Habitly is unable to verify or authenticate any information you provide; or (c) Habitly believes that your actions may cause financial loss or legal liability for you, other users or Habitly.

12.5.      Legal Investigation.  Habitly reserves the right to investigate suspected violations of this Agreement. You hereby authorize Habitly to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers and your Accounts in order to enforce the terms and conditions of this Agreement.

12.6.  Non-Exclusive Remedies.  The above-described actions are not Habitly’s exclusive remedies and Habitly may take any other legal, equitable or technical action it deems appropriate in the circumstances.  Habitly will not be liable for any damage caused by the termination of this Agreement.

13.  General Provisions

13.1.  Entire Agreement; Modifications.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties.  There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.  However, Habitly reserves the right, in its sole discretion, to modify or replace any terms of this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on our website or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. While Habitly will provide notice of modifications, it is also your responsibility to check this Agreement and any rules posted on the Services periodically for changes. Your continued use of the Services following notification of any changes to this Agreement constitutes acceptance of those changes.  If the modified Agreement is not acceptable to you, your only recourse is to cease using the Site, Virtual Studio and Services.

13.2.  Assignment.  You may not assign or transfer this Agreement, by operation of law or otherwise, without Habitly’s prior written consent, which consent may be delayed or withheld by Habitly in its sole discretion. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Habitly may assign or transfer this Agreement, in its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

13.3.  Governing Law.  This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.  

13.4.  Electronic Agreement.  You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by Habitly to show your acceptance of this Agreement and/or your agreement to use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.  A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 

13.5.  Invalidity of Provisions.  If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.

13.6.  English Language.  It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

13.7.         Capacity to Enter Into Agreement.  If you are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement. Furthermore, if you are residing in a jurisdiction which prohibits your use of the Services, you may not enter into this Agreement. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction that your use of the Services is allowed.  You further represent and warrant that (i) you are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.

14.  Contact

14.1.  Contacting Habitly.  If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to Habitly or its business, please contact Habitly at:info@habitlyfit.com