TERMS
OF USE
The
Ultimate New York Body Plan provides web-based content and
interactive applications for individual users around the world.
The following terms of use apply to both The Ultimate New York
Body Plan and our partner websites, including but not limited
to The Madison Square Club, DavidKirsch.com and David Kirsch Wellness.
Welcome
to The Ultimate New York Body Plan. The following are the terms that
apply to you and all other people (collectively referred to herein
as "Users") who use www.theultimatenewyorkbodyplan.com and
all The Ultimate New York Body Plan partner web sites (referred to
herein as the "Site"). Please read these Terms of Use carefully,
because by using the Site, Users automatically agree to be bound by
these Terms. As a User, if you do not agree to be bound by these Terms
of Use, you must exit the Site immediately. Your continued use constitutes
your agreement to be bound by these Terms of Use.
The Ultimate New York Body Plan provides service to Users as defined
by the following Terms of Use. The Ultimate New York Body Plan may
update the Terms of Use from time to time without notice. Users have
the obligation to review changes in these Terms of Use. Unless otherwise
specified, such changes shall be effective when they are posted. In
addition, when using particular The Ultimate New York Body Plan services,
Users are expected to follow any posted guidelines or rules. |
Privacy
In accordance with the TRUSTe certification, all information gathered
from Users by this Site will be governed by The Ultimate New York
Body Plan's Privacy Policy, which is incorporated in these Terms of
Use by reference. If there is a conflict between the terms of the
The Ultimate New York Body Plan's Privacy Policy and this Agreement,
the terms of The Ultimate New York Body Plan's Privacy Policy prevail
over the terms of this Agreement. Please take a minute to read the
Privacy Policy so
that you understand how we treat personally identifiable information.
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Registration
All Users agree to fill out a registration form. In filling it out,
Users agree to provide accurate and current information about themselves.
Please see the registration section of The Ultimate New York Body
Plan's Privacy Policy
for more detail.
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Information
Provided by Users
Users are responsible for providing accurate, timely and complete
information to us in connection with their registration for and use
of the Site. The Ultimate New York Body Plan is not responsible for
any claims relating to any inaccurate, untimely or incomplete information
provided to us. Users represent and warrant that they are the owner
or a licensee or otherwise have the right to provide any information
or materials (including pre-existing materials) that they post or
transmit for use in public areas on the Site (including, without limitation,
posting on bulletin boards or chat - collectively referred to herein
as "Public Areas"). Users hereby grant The Ultimate New
York Body Plan an irrevocable, royalty-free, perpetual, non-exclusive
worldwide license to use, copy, display, modify, edit, create derivative
works from and distribute any information or materials they post in
Public Areas.
As set forth in The Ultimate New York Body Plan's Privacy
Policy, any submissions to Public Areas will be public, and The
Ultimate New York Body Plan will not be responsible for the action
of other Users with respect to any information or materials posted
in Public Areas.
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Your
Access to the Site
Only registered Users are authorized to access the protected portions
of the Site. Access to and use of the Site is restricted to authorized
Users only. Unauthorized individuals attempting to access these areas
may be subject to prosecution.
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Password
and Security
When Users register with The Ultimate New York Body Plan, each gets
to choose a password. Users need a password not only to sign on to
the Site, but also to access chat, forums and other applications,
and to change preferences (delete, edit or add submitted information,
opt in or out of promotions and newsletters, etc.). Each User is responsible
for keeping his or her password secret. If someone who says they are
The Ultimate New York Body Plan staff asks for any personal account
information, including password, check their Profile. If it doesn't
say they are staff, they're not. If someone gains unauthorized access
to an account, change your password (under the member name is a link
called "Update" -- Users can change their password at the
top of the Settings page) and notify The Ultimate New York Body Plan
immediately. The Ultimate New York Body Plan is not liable for any
loss or damage resulting from your failure to comply with these recommendations.
Please see the Security section of The Ultimate New York Body Plan's
Privacy Policy for
more detail.
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Permitted
Use
Users may make a single copy of pages from the Site on their hard
drive or in print for their own personal, non-commercial use. No other
use of information is authorized. In consideration of this authorization,
Users agree that any copy of these materials will retain all copyrights,
trademarks and other proprietary notices in the same form and manner
as on the original.
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User
Conduct
Users agree to abide by the The Ultimate New York Body Plan Member
Conduct Code, which is incorporated in these Terms of Use by reference,
at all times. Any conduct by Users that violates the The Ultimate
New York Body Plan Acceptable
Use Policy in any way may result in the suspension or termination
of their access to the Site, at The Ultimate New York Body Plan's
sole discretion, in addition to any other remedies set forth herein
or otherwise applicable in law or equity.
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Public
Content
All areas of the Site are public and not private communications. The
Ultimate New York Body Plan does not endorse chat, postings, conferences
and other communications by Users, and such communications shall not
be considered reviewed, screened or approved by The Ultimate New York
Body Plan. Anytime -- with the exception of private email -- Users
upload to, distribute content or publish through The Ultimate New
York Body Plan, they grant The Ultimate New York Body Plan the right
to edit, copy, remove, distribute, create derivative works from and
publish such content in any form and medium, whether electronically
or in hard copy, and whether alone or as part of a collective work.
Users shall retain, however, whatever other rights they have in pre-owned
elements of such content.
Users acknowledge that any information they post in publicly accessible
areas such as message boards, The Ultimate New York Body Plan Chat
and The Ultimate New York Body Plan Member Gallerycan be seen and
used by anybody. It is Users' responsibility to protect themselves
while on The Ultimate New York Body Plan, as The Ultimate New York
Body Plan is not liable for anything that occurs as a result of voluntary
communication of personal information.
Please see The Ultimate New York Body Plan's Privacy
Policy for more detail.
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Moderation
and Termination
The Ultimate New York Body Plan reserves the right, but is not obligated,
to moderate content available through The Ultimate New York Body Plan.
Authorized The Ultimate New York Body Plan staff can remove content
and accounts, without notice, that they feel, in their sole discretion,
violate The Ultimate New York Body Plan's Terms of Use or the rules
posted for individual services. The Ultimate New York Body Plan also
reserves the right to remove content, fully access and/or close accounts
to: (a) comply with legal process; (b) protect the rights, property
or personal safety of The Ultimate New York Body Plan, our Users or
the public; (c) respond to claims that any content violates the rights
of third parties.
Users acknowledge and agree that The Ultimate New York Body Plan may
suspend or terminate their access or use of the Site without prior
notice if they engage in conduct that The Ultimate New York Body Plan,
in its sole discretion, believes violates any term or provision of
these Terms of Use, otherwise violates the rights of The Ultimate
New York Body Plan or third parties or is otherwise inappropriate
for continued access and use of the Site. Users further acknowledge
and agree that The Ultimate New York Body Plan may suspend or terminate
their access and use of the Site at any time, with or without cause,
in The Ultimate New York Body Plan's absolute discretion and without
notice. The relevant version of these Terms of Use shall apply to
all prior use of the Site. The following paragraphs of these Terms
of Use shall survive termination of a User's use or access to the
Site: Paragraphs concerning Indemnification, Disclaimer of Warranties,
Limitations of Liability applicable law and dispute resolution and
any other provision that by its terms survives termination of a User's
use or access to the Site.
Please see the Information Retention Security section of The Ultimate
New York Body Plan's Privacy
Policy for more detail.
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Links
The Site may contain hyperlinks to Web sites operated by parties other
than The Ultimate New York Body Plan. Such hyperlinks are provided
for reference and convenience only. The Ultimate New York Body Plan
does not control such Web sites, and is not responsible for their
content. Just because The Ultimate New York Body Plan has hyperlinks
to such Web sites does not mean The Ultimate New York Body Plan endorses
any of the material on such Web sites, or has any association with
their operators.
Users further acknowledge that use of any Web site controlled, owned
or operated by third parties is governed by the terms and conditions
of use for those Web sites, and not by The Ultimate New York Body
Plan's Terms of Use or Privacy Policy. Links to external Web sites
(including external Web sites that are framed by The Ultimate New
York Body Plan) or inclusions of advertisements do not constitute
an endorsement by The Ultimate New York Body Plan of such sites or
the content, products, advertising or other materials presented on
such sites, but are for User's convenience. Users access them at their
own risk.
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Intellectual
Property Rights
All text, graphics, editorial content, data, formatting, graphs, HTML,
look and feel, photographs, music, sounds, images, software, videos,
designs, typefaces and other content (collectively, 'Proprietary Material')
that Users see or read on the Site is owned by The Ultimate New York
Body Plan or is used with permission. This Proprietary Material is
protected in all forms, media and technologies now known or hereinafter
developed. The Ultimate New York Body Plan owns all Proprietary Material
as well as the coordination, selection, arrangement and enhancement
of such Proprietary Materials as a Collective Work under the United
States Copyright Act, as amended. With the exception of uses allowed
under the section above called 'Permitted Uses,' Users may not copy,
download, use or re-transmit anything from the The Ultimate New York
Body Plan Site without The Ultimate New York Body Plan's prior express
written permission. Furthermore, Users are not allowed to post or
distribute any material they do not own, or which they do not have
permission to use. Violation of this policy may result in copyright,
trademark or other intellectual property rights violations, and subject
Users to civil or criminal penalties.
In addition, the Site contains material protected by the domestic
and international laws of copyright, patents or other proprietary
rights and laws. Any use of such Proprietary Material, other than
as permitted herein, is expressly prohibited without the prior permission
of The Ultimate New York Body Plan and/or the relevant right holder.
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Notice
of Trademark Rights
The service marks and trademarks The Ultimate New York Body Plan,
The Madison Square Club, David Kirsch Wellness Company, and the The
Ultimate New York Body Plan logo are service marks owned by David
Kirsch Wellness Co.. Any other trademarks, service marks, logos and/or
trade names appearing on the Site are the property of their respective
owners. Users acknowledge the rights of The Ultimate New York Body
Plan and the respective third parties in those marks. Users may not
copy or use any of these marks, logos or trade names without the prior
written permission of the owner except as expressly allowed by these
Terms of Use.
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Copyright
Complaints and Copyright Agent
The Ultimate New York Body Plan respects the intellectual property
of others, and asks Users to do the same. The Ultimate New York Body
Plan is in compliance with the Digital Millennium Copyright Act. In
order to protect intellectual property from misuse, we ask Users to
help us. If Users believe, in good faith, that any materials on the
Site infringe upon Users' copyrights, please provide The Ultimate
New York Body Plan's Copyright Agent with the following information:
1. An electronic or physical signature of the owner of the copyright
or of the person authorized to act on behalf of the owner of the copyright
interest; 2. A description of the copyrighted work that you claim
has been infringed, including the URL (Internet address) or other
specific location on the Site where the material that you claim is
infringing is located. Include enough information to allow The Ultimate
New York Body Plan to locate the material and explain why you believe
an infringement has taken place; 3. A description of the location
where the original or an authorized copy of the copyrighted work exists
-- for example, the URL (Internet address) where it is posted or the
name of the book in which it has been published; 4. Your address,
telephone number and email address; 5. A statement by you that you
have a good faith belief that the disputed use is not authorized by
the copyright owner, its agent, or the law; and 6. A statement by
you, made under penalty of perjury, that the information in your Notice
is accurate, and that you are the copyright owner or authorized to
act on the copyright owner's behalf.
The Ultimate New York Body Plan's Copyright Agent for Notice of claims
of copyright infringement can be reached as follows:
By mail:
General
Counsel and Copyright Agent
c/o The Madison Square Club
210 Fifth Ave
New York, NY 10010
By phone:
212.683.1836
By fax: 212.685.8607
By email: copyrightagent@theultimatenewyorkbodyplan.com
The Ultimate New York Body Plan will terminate access to the Site
of those who engage in repeated acts of infringement.
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Indemnification
By agreeing to these Terms of Use, Users agree to indemnify, defend
and hold harmless The Ultimate New York Body Plan, its directors,
officers, employees, agents, licensors, attorneys, independent contractors,
providers, subsidiaries and affiliates (collectively referred to herein
as 'The Ultimate New York Body Plan and Affiliates') from and against
any and all claim, loss, expense or demand of liability, including
attorneys' fees and costs incurred by The Ultimate New York Body Plan
and Affiliates in connection with any claim by a third party (including
any intellectual property claim) arising out of (i) materials and
content Users submit, post or transmit through the Site, or (ii) use
of the Site in violation of these Terms of Use or in violation of
any applicable law. Users further agree that they will cooperate as
reasonably required in the defense of any such claims. The Ultimate
New York Body Plan and Affiliates reserve the right, at their own
expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by Users, and Users shall not,
in any event, settle any such claim or matter without the written
consent of The Ultimate New York Body Plan. Users further agree to
hold harmless The Ultimate New York Body Plan and Affiliates from
any claim arising from a third party's use of information or materials
of any kind that they post in a Public Area.
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Disclaimer
of Warranties
USER EXPRESSLY AGREES THAT THE USE OF THE SITE IS AT USER'S SOLE RISK.
NEITHER The Ultimate New York Body Plan NOR ITS AFFILIATES OR LICENSORS
WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO
THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT
OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SITE.
THE SITE IS PROVIDED ON AN 'AS IS' BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NEITHER COMPANY NOR ITS LICENSORS WARRANT OR GUARANTEE
THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE INFORMATION
APPEARING ON THE SITE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO
THE RESULTS OF YOUR USE OF THE INFORMATION. The Ultimate New York
Body Plan AND AFFILIATES DO NOT WARRANT THAT THE SITE IS FREE OF VIRUSES,
WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. COMPANY AND AFFILIATES
TAKE REASONABLE MEASURES TO ENSURE THAT INFORMATION PROVIDED BY USERS
IS DISCLOSED ONLY TO THOSE SPECIFIED BY USERS. The Ultimate New York
Body Plan CANNOT AND DOES NOT, HOWEVER, GUARANTEE THAT THE PERSONAL
INFORMATION ENTERED BY USERS WILL NOT BE MISAPPROPRIATED, INTERCEPTED,
DELETED, DESTROYED OR USED BY OTHERS. USERS AGREE NOT TO HOLD The
Ultimate New York Body Plan ANY AND AFFILIATES LIABLE FOR ANY LOSS
OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH MISAPPROPRIATION,
INTERCEPTION, DELETION, DESTRUCTION OR USE OF INFORMATION PROVIDED
THROUGH THE SITE. COMPANY AND AFFILIATES ARE NOT AND SHALL NOT BE
LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING FROM THE USE OR INABILITY
TO USE THE SITE
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LIMITATION
OF LIABILITY
IN NO EVENT WILL The Ultimate New York Body Plan, ITS AFFILIATES,
VENDORS, SUPPLIERS OR BUSINESS PARTNERS BE LIABLE FOR ANY GENERAL,
SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
ANY OTHER DAMAGES OF ANY KIND, WHETHER IN AN ACTION UNDER THEORY OF
CONTRACT, TORTIOUS CONDUCT, NEGLIGENCE OR ANY OTHER THEORY, ARISING
OUT OF OR RELATING IN ANY WAY TO THE SITE. USERS' SOLE REMEDY FOR
DISSATISFACTION WITH The Ultimate New York Body Plan IS TO STOP USING
THE SITE. IF, FOR ANY REASON, THE FOREGOING LIMITATION IS FOUND BY
A COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER
THE CIRCUMSTANCES, YOU AGREE THAT The Ultimate New York Body Plan'S
AND AFFILIATES' TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES
OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO THE HIGHER OF
$1,000 OR THE LOWEST PERMITTED UNDER APPLICABLE LAW.
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General
Provisions
Failure by The Ultimate New York Body Plan to enforce any provision(s)
of these Terms of Use shall not be construed as a waiver of any provision
or right. These Terms of Use, and all other aspects of use of the
Site, shall be governed by and construed in accordance with the laws
of the State of New York, without regard to its conflict of laws rules.
All claims and disputes arising out of these Terms or Use or use of
the Site, other than action for specific performance or injunctive
relief brought by The Ultimate New York Body Plan, shall be exclusively
brought in the federal, state or local courts located in New York,
NY; and, with regard to such claims and disputes, Users hereby irrevocably
(i) submit to the exercise of personal jurisdiction over them by those
courts, and (ii) waive any jurisdictional, venue, or inconvenient
forum objections to such courts. These Terms of Use constitute the
entire agreement between Users and The Ultimate New York Body Plan
with respect to the Site, and supersede all prior agreements or understandings,
whether written or oral, between Users and The Ultimate New York Body
Plan with respect to the Site. If any provision of these Terms of
Use is found to be invalid or unenforceable, the remaining provisions
shall be enforced to the fullest extent possible, and the remaining
Terms of Use shall remain in full force and effect. These Terms of
Use inure to the benefit of The Ultimate New York Body Plan, its successors
and assigns.
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