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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:    [email protected]

The Ultimate New York Body Plan will terminate access to the Site of those who engage in repeated acts of infringement.

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.

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

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.

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.