Terms of Service

Last Updated August 6, 2020

 

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. These Terms of Service (Terms) are a contract between you and The 1440 Affiliate (1440 or we) and govern your access to and use of any the 1440 website, social media pages (including on Facebook, Instagram, Spotify and Twitter) or content (the Site) or any fitness, recreational, wellness, or other classes, experiences, activities, events, services, recordings, and/or products made available through the 1440 or any other third party platform (collectively, Programs). Please read these Terms carefully before accessing and using the Site or Programs.

The most current version of the Terms can be accessed at any time at [www.the1440affiliate.com/terms-of-service]. Please read these Terms carefully before accessing and/or using the Site and/or Programs.

THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH 1440 ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 16 FOR MORE INFORMATION ABOUT THE ARBITRATION AGREEMENT. SUBJECT TO SECTION 16, YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND 1440 WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION.

1.   Terms

a)     Acceptance of Terms. By accessing and/or using the Site and/or Programs, or clicking any button to indicate your consent, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site or any Programs.

b)    Amendment of Terms. 1440 may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site or Programs after such posting constitutes your consent to be bound by the Terms, as amended.

c)     Additional Terms. In addition to these Terms, certain plans, offers, products, services, elements or features may also be subject to additional terms, conditions guidelines or rules which may be posted, communicated or modified by us or applicable third parties at any time. Your use of any such plan, offer, product, service, element or feature is subject to those additional terms and conditions, which are hereby incorporated by reference into the Terms, provided that in the event of any conflict between such additional terms and the Terms, the Terms shall control. The 1440 Privacy Policy is hereby incorporated by reference.

2.   Membership

a)     Membership Options. There are a number of ways to participate in Programs through 1440, such as various subscription plans, promotional plans, digital Programs, and non-subscription purchases. 1440 will provide information on its then-current membership and subscription requirements on the Site and/or by other means. Features and prices are subject to change. These options consist of different classes, services and features and may be subject to additional and differing conditions, prices, policies and limitations. We reserve the right to modify, terminate or otherwise amend our offered options and plans at any time in our discretion. From time to time we may permit non-subscribers to access certain Programs, content or features for a cost or at no cost. 1440 makes no commitment on the quantity, availability, type or frequency at which such Programs, content and features will be available to non-subscribers and may modify, discontinue, remove or suspend access at any time and for any reason in our sole discretion.

b)    Subscription Plans. To enjoy full access to the Site and Programs, you need to sign up for a subscription. A subscription starts on the date that you sign up for a subscription and submit payment via a valid Payment Method (defined below) or reactivate a pre-existing subscription. Unless we otherwise communicate a different time period to you at the time of sign up or otherwise (such as a multi-month commitment plan), each billing cycle is one month in length (a Subscription Cycle). Your 1440 subscription automatically renews each month, and we will automatically bill the monthly subscription fee to your Payment Method each month, until your subscription is cancelled or terminated. For example, if you purchase your 1440 subscription on April 5, your subscription will automatically renew on May 5 (as further explained in “Subscription Cycles” section below). You must provide us with a current, valid, accepted method of payment (Payment Method). We may update the accepted methods from time to times. If you add a subscription to your base subscription or if you upgrade or downgrade to a different subscription, all such subscriptions will be governed by these Terms and will continue indefinitely until canceled or terminated.

c)     Non-Subscription Purchases. 1440 may permit you to purchase certain products or Programs through the Site, in addition to your subscription or without having a subscription. You acknowledge and agree that these Terms apply to any such purchase you make, and you will be responsible to pay the applicable fees, which may change at any time.

d)    1440 Account. Your 1440 account is personal to you and you agree not to create more than one account. You cannot transfer your subscription to third parties or allow third parties to use your 1440 account, including other 1440 users. You must not use or exploit the Site and/or Programs for commercial purposes. We continually update and test various aspects of the 1440 platform. We reserve the right to, and by using the Site and/or Programs you agree that we may, include you in or exclude you from these tests without notice. You understand and agree that 1440 may take actions we deem reasonably necessary to prevent fraud and abuse.

You agree that the information you provide to 1440 at sign up and at all other times will be true, accurate, current, and complete and that you will keep this information accurate and up-to-date at all times. You are solely responsible for all activity that occurs under your account, including any activity by unauthorized users. To use the Site you must have access to the Internet and may be required to download a mobile application to use some or all of 1440 features. You are solely responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Site and Programs.

e)     Eligibility Criteria. The availability of all or part of our Site and/or Programs may be limited based on demographic, age, or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to 1440 or may terminate your subscription at any time based on these criteria. For example, you must be 18 years of age or older to use the Site and/or Programs and/or to purchase a 1440 subscription. You further understand that the Site and/or Programs may not be available in every geography.

THE 1440 CURRENTLY OPERATES IN CANADA AND THE UNITED STATES. ACCESS TO OUR SITE IS NOT PERMITTED FROM OTHER JURISDICTIONS. THE SITE IS NOT AVAILABLE TO PERSONS OUTSIDE CANADA OR THE UNITED STATES OR TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY 1440. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A CANADIAN OR AMERICAN RESIDENT, ARE AT LEAST 18 YEARS OLD AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE. THOSE WHO CHOOSE TO ACCESS THE SITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.

f)     Communications: By providing your information or creating an account, you agree that 1440 may contact you by email, direct mail, telephone or text messages at any of the addresses or phone numbers, as applicable, provided by you or on your behalf in connection with a 1440 account, including for marketing purposes. You may opt-out of marketing emails via the provided unsubscribe link or otherwise opt-out by contacting us at any time.

3.   Fees, Billing, Cancellation.

a)     Recurring Billing. By initiating your 1440 subscription, you authorize us to charge you for your initial subscription period and a recurring monthly subscription fee at the then current rate, which may change from time to time. You acknowledge that the amount billed each month may vary for reasons that may include differing amounts due to promotional offers and/or changing or adding a plan, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges. You also authorize us to charge you any other fees you may incur in connection with your use of the Site, such as any applicable sign-up fee, taxes and cancellation or late fees, as further explained below. Note that even if you do not use the subscription or access the Site and/or Programs, you will be responsible for subscription fees until you cancel your subscription, or it is otherwise terminated.

b)    Subscription Cycle. When you sign up and purchase your 1440 subscription, your first Subscription Cycle will be billed immediately. Unless we expressly communicate otherwise, your subscription will automatically renew each month and you will be billed on the same date each month. We reserve the right to change the timing of our billing, in particular, as indicated below, if your Payment Method has not successfully settled (and if we do, we will make adjustments to the amounts we charge, as appropriate). In the event your paid subscription began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your 1440 membership or became a paying member on January 31st, your next payment date is likely to be February 28th, and your Payment Method would be billed on that date. Your renewal date may change due to changes in your subscription.

c)     Refunds. Generally, our fees (including the monthly fee for your membership and any other fees) are nonrefundable, unless we specifically communicate otherwise at the time of purchase. However, we will provide a refund to subscribers for their current prepaid subscription period only in the following circumstances: (i) if you are canceling your subscription and request a refund within 10 days of the date of your first payment for your subscription or (ii) if your subscription is cancelled prior to the end of a period for which you have incurred a charge, due to your relocation, disability or death; provided, however, in each case we reserve the right to charge a fee to cover the cost of any class or other services or products you may have used or received prior to your cancellation and to ask for proof of such changed condition, to the extent permitted by law. WE DO NOT PROVIDE REFUNDS OR MAKE GOODS FOR ANY PRIOR MONTHS INCLUDING FOR UNUSED PROGRAMS.

d)    Price Changes. We reserve the right to adjust pricing at any time. Unless we expressly communicate otherwise, any price changes to your subscription will take effect on your next billing cycle upon notice communicated through email and/or posting on the 1440 website or such other means as we may deem appropriate from time to time, such as email. If you do not cancel your subscription, you will be deemed to have accepted these new fees.

e)     Payment Methods. You may edit your Payment Method information by logging onto our website and editing it in your account settings. If a payment is not successfully settled due to expiration, insufficient funds or otherwise, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method or any other payment method you have provided, as it may be updated, including in the event you attempt to create a new account, reactivate the unsettled account or sign up for a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to our Site or any portion thereof.

f)     Cancellation of Subscription. Unless we communicate otherwise, you may terminate your subscription at any time before your subscription renews by going into your account settings on the 1440 website and letting us know you would like to cancel. Unless we communicate otherwise, following any cancellation you will continue to have access to your subscription through the end of your current prepaid Subscription Cycle, unless you cancel and receive a refund, in which case your access will be terminated immediately. Note that if you do terminate your subscription, we reserve the right to charge a reactivation fee if you want to return to 1440 in future months or to restrict your access in future months. If you cancel your subscription or it is terminated for any reason, you will lose access to all Programs, content or features available through the site subscription.

g)     Third Party Fees for Using 1440. You are also responsible for all third-party charges and fees associated with connecting to and using the Site and/or Programs, including fees such as internet service provider fees, telephone and computer equipment charges, sales tax and any other fees necessary to access the Site and/or Programs.

4.   Termination or Modification by 1440

You understand and agree that 1440 at any time, in its sole discretion and for any or no reason, may (i) terminate, cancel deactivate, disable, delete and/or suspend your subscription, any account, any orders placed or your access to or use of the Site, your membership and/or Programs (or any part thereof including but not limited to your access to any or all classes or services) and remove and discard all or any part of your account or any content uploaded by you and/or (ii) discontinue, disable, suspend, modify or alter any aspect, feature or policy of the Site, including of your subscription. 1440 may also in its sole discretion and at any time discontinue providing access to the Site, or any part thereof, with or without notice. This includes the right to terminate or modify any subscription prior to the end of any pre-paid or committed period. You agree that any termination of your access to the Site or any account you may have or portion thereof may be effected without prior notice. Upon any termination or otherwise, we may immediately deactivate your account and all related information and/or bar any further access to your account information and the Site. 1440 shall have no liability for, and you shall have no recourse for, any such termination or deactivation, except as set forth in the following sentence. If you are subscriber, then upon any such termination by us without cause, as your sole recourse, we will issue you a pro rata refund of the prepaid portion of your subscription applicable to future unused services (less any fees or costs for classes or services already used). If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of your membership, Programs and/or the Site, you will not be entitled to any refund and you agree that we will not be responsible to pay any such refund. You agree that 1440 will not be liable to you or any third party for any termination or modification to the service regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us is to cancel or terminate your subscription. If 1440 deletes your account for these reasons, you may not re-register for or use the Site and/or Programs under any other user name, email, payment method or profile. 1440 may block your access to the Site to prevent re-registration.

5.   Privacy

Your privacy is important to 1440. The 1440 Privacy Policy is hereby incorporated into these Terms by reference and can be accessed at any time at [www.the1440affiliate.com/privacy]. Please read the privacy policy carefully for information relating to 1440’s collection, use, and disclosure of your personal information.

6.   Prohibited Conduct

Without limiting the prohibitions and restrictions found elsewhere throughout the Terms, you agree not to:

  1. Harass, threaten, stalk, disrupt or defraud users, members or staff of 1440 or any other person, or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;

  2. Act in a deceptive or fraudulent manner by, among other things, impersonating another person or access another user’s account or signing up for more than one account;

  3. Share 1440 passwords with any third party or encourage any other user to do so;

  4. Permit anyone to use any classes or services booked under your own membership, including other members;

  5. Reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast, use for commercial purposes or otherwise exploit any portion of the Site;

  6. Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights or notices from any portion of the Site;

  7. Upload material (e.g. virus) that is damaging to computer systems or data of 1440 or users of the Site or otherwise use the Site in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Site;

  8. Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others;

  9. Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;

  10. Decompile, reverse engineer or disassemble the Site, in whole or in part, except as may be permitted by applicable law;

  11. Link to, mirror or frame any portion of the Site;

  12. Cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site;

  13. Attempt to gain unauthorized access to or impair any aspect of the Site or its related systems or networks or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;

  14. Make unsolicited offers, advertisements, proposals, or send junk mail or “spam“ to users;

  15. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein;

  16. Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site;

  17. Modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site;

  18. Use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site; or

  19. Use the Site for or in connection with any purpose that is unlawful or prohibited by these Terms.

1440 reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.

7.   User Submissions

a)     General. The Site provides certain features which enable you and other users to submit, post, and share content, which may include without limitation text, graphic and pictorial works, or any other content submitted by you and other users through the Site (User Submissions). 1440 does not guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to, share with or make accessible to the Site. You understand and agree that User Submissions may be made public without any additional notice to or consent by you and you should assume that any person (whether or not a user of the Site), may read or have access to your User Submissions. 1440 is not responsible for the use or disclosure of any information that you disclose in connection with User Submissions, including any personal information. User Submissions are displayed for information purposes only and reflect the opinions of the person making the submission. They are not controlled by, and may not reflect the opinion of, 1440. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not 1440, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Site.

b)    Right to Remove or Edit User Submissions. 1440 makes no representations that it will publish or make available on the Site any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Site, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, 1440 complies with the Copyright Act, and will remove User Submissions upon receipt of a notice from the copyright owner or the owner’s agent (see the “Copyright Act” section below). 1440 may, but is not obligated to, monitor and edit or remove any activity or content, in whole or in part, including but not limited to content that 1440 determines in its sole discretion to violate the standards of this Site. 1440 takes no responsibility and assumes no liability for any User Submissions.

c)     License Grant by You to 1440. You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to 1440, you hereby grant 1440 and its affiliates, sublicensees, partners, designees, and assignees of the Site (collectively, the 1440 Licensees) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publish, publicly display, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Site and 1440’s (and its successors’) business for any purpose, including, without limitation, for marketing, promoting, and redistributing part or all of the Site (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed. You hereby waive moral rights in your User Submissions in favor of the 1440 Licensees.

d)    User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting, sharing, displaying, publishing them or otherwise making them available. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize 1440 to use all patent, trademark, copyright, or other proprietary rights in and to your User Submissions to enable inclusion and use of your User Submissions in the manner contemplated by 1440 and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, 1440’s or any 1440 Licensee’s use of such User Submissions pursuant to these Terms, and 1440’s or any of 1440 Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) contain any material that is illegal, threatening, obscene, racist, defamatory, libelous, hateful, pornographic, purposely false or otherwise injurious to third parties, promotional in nature, promotes any illegal activity or harm to groups or individuals, or consists of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice or false advertising; (c) violate any applicable law or regulation or these Terms; (d) exploit minors; or (e) require obtaining a license from or paying fees or royalties to you or any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any copyright owners, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others.

e)     Inaccurate or Offensive User Submissions. You understand that when using the Site, you may be exposed to User Submissions from a variety of sources and that 1440 does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST 1440 WITH RESPECT THERETO.

f)     Feedback. If you provide 1440 with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Site or the Programs (Feedback), 1440 shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Site and/or Programs. You hereby grant 1440 a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose without notice to, consent by or compensation to you or any third party, and you hereby waive moral rights in your Feedback in favor of 1440.

g)     Infringing or Illegal Activity. In the event of infringing or other illegal activities, we have no obligation to, but reserve the right to terminate access to the Site and remove all content submitted by any persons who are found to be infringers. Any suspected illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies 1440 may have at law or in equity.

8.   Ownership; Proprietary Rights; License

a)     Ownership and 1440 Proprietary Rights. The Site and Programs are owned and operated by 1440. The content, recordings, graphics, design, compilation, information, services of the Site and Programs provided by 1440 (Materials) are protected by the copyright, trade dress, patent, and trademark laws of Canada, the United States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for your User Submissions, all Materials contained on the Site or in the Programs are the copyrighted property of 1440 or its subsidiaries or affiliated companies and/or third-party licensors whether registered or unregistered and may not be used in connection with any product or service or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. All trademarks, service marks, and trade names are proprietary to 1440 or its affiliates and/or third-party licensors. Except as expressly authorized by 1440, you agree not to sell, license, distribute, copy, modify, download, record, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials and may only access the Materials for your personal, non-commercial use. In the event that Materials are downloaded to your computer or mobile phone, you do not obtain any ownership interest in such Materials. All rights not expressly granted in this Agreement are reserved.

b)    License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the Site and Programs, 1440 grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the 1440 Site and Program for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Materials available on the Site and the right to download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or 1440.

9.   Rights and Terms for Platform Providers

The following terms apply to any Program accessed through or downloaded from any third party or distribution platform (Platform) where the Program may now or in the future be made available (each an Platform Provider). You acknowledge and agree that:

a)     These Terms are between you and 1440, and not with the Platform Provider, and 1440 (not the Platform Provider), is solely responsible for the Program.

b)    In the event of any failure of the Platform to conform to any applicable warranty, you may notify the Platform Provider and, to the maximum extent permitted by applicable law, 1440 will have no warranty obligation whatsoever with respect to the Platform. Any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Program to conform to any warranty will be the sole responsibility of 1440.

c)     The Platform Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Site or Program or your possession and use of the Site or Program, including, but not limited to: (i) product liability claims; (ii) any claim that the site or Program fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

d)    You must also comply with all applicable terms of service of the Platform Provider when using the Platform.

10.           Third-Party Sites, Products and Services; Links

The Site may include links or access to other web sites or services (Linked Sites) solely as a convenience to users. 1440 does not endorse any such Linked Sites or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, 1440 makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.

Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Site are solely between you and such third party. YOU AGREE THAT 1440 WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH THIRD PARTIES ON THE SITE.

11.           General Disclaimers; No Warranties

YOU AGREE THAT YOUR USE OF THE SITE AND YOUR ATTENDANCE AT, PARTICIPATION IN, PURCHASE OF AND/OR USE OF ANY SUCH PROGRAMS IS SOLELY AT YOUR OWN RISK. WE DO NOT ASSUME ANY LIABILITY OR MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF, IN CONNECTION WITH OR WITH RESPECT TO THE SITE AND/OR PROGRAMS.

IN NO EVENT SHALL 1440 BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S USE OF OR PARTICIPATION IN A PROGRAM, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY. WITHOUT LIMITING ANYTHING HEREIN, 1440 DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO ANY PROGRAMS OFFERED VIA THE SITE.

UNLESS OTHERWISE EXPRESSLY STATED BY 1440, ALL ASPECTS OF OR CONTENT OR FEATURES MADE AVAILABLE THROUGH THE SITE AND/OR PROGRAMS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, 1440, ITS SUPPLIERS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. UNLESS OTHERWISE EXPRESSLY STATED BY 1440. 1440, ITS SUPPLIERS AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND AND/OR ANY PROGRAM IS SUITABLE FOR YOU OR WILL MEET YOUR PERSONAL NEEDS, (II) REGARDING THE ADEQUACY OR SAFETY OF ANY PROGRAM OR RECOMMENDATION, (III) THAT THE SITE AND/OR ANY PROGRAM, OR ANY ASPECT THEREOF, WILL BE AVAILABLE OR PERMITTED IN YOUR JURISDICTION, (IV) THAT THE SITE, OR ANY ASPECT THEREOF, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY INJURY, LOSS OR DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

CERTAIN PROVINCIAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE SITE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

12.           Indemnification; Hold Harmless

You agree to indemnify and hold 1440, its affiliated entities, subsidiaries, its suppliers, service providers and partners and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, harmless from any claims, actions, suits, costs, expenses, losses, damages, liabilities, including attorneys’ fees, arising out of or in connection with your misuse of the Site, Programs, violation of these Terms, violation of the rights of any other person or entity, or any breach of your representations, warranties, and covenants set forth in these Terms.

13.           Waiver and Release

YOU UNDERSTAND THAT THERE ARE CERTAIN INHERENT RISKS AND DANGERS IN EXERCISING AND THAT THE PROGRAMS YOU MAY ATTEND OR PARTICIPATE IN OFFER A RANGE OF ACTIVITY AND INTENSITY LEVELS. BY USING 1440 (INCLUDING BUT NOT LIMITED TO ATTENDING, PARTICIPATING IN OR USING A PROGRAM), YOU ACKNOWLEDGE AND AGREE, ON BEHALF OF YOURSELF, YOUR HEIRS, PERSONAL REPRESENTATIVES AND/OR ASSIGNS THAT YOU ARE AWARE OF THESE RISKS WHICH INCLUDE, BUT ARE NOT LIMITED TO, PROPERTY DAMAGE, ILLNESS, LOSS AND BODILY INJURY OR DEATH. YOU ACKNOWLEDGE THAT SOME OF THESE RISKS CANNOT BE ELIMINATED AND YOU SPECIFICALLY ASSUME THE RISK OF INJURY OR HARM.

YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL PRIOR TO USING 1440 (INCLUDING BUT NOT LIMITED TO ATTENDING, PARTICIPATING IN OR USING A PROGRAM) AND TO DETERMINE IF AND HOW PARTICIPATING IS APPROPRIATE FOR YOU. DO NOT USE PROGRAMS IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.

YOU ALSO UNDERSTAND AND AGREE THAT THE SITE OFFERS FITNESS AND RELATED INFORMATION THAT IS DESIGNED FOR INFORMATIONAL, EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. NOTHING STATED OR POSTED ON OR OTHERWISE AVAILABLE THROUGH ANY ASPECT OF THE SITE AND/OR A PROGRAM IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. YOU SHOULD NOT RELY ON ANY INFORMATION ON OR THROUGH THE SITE AND/OR A PROGRAM AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR FITNESS LEVEL, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON OR THROUGH THE SITE AND/OR A PROGRAM. THE USE OF ANY OF THE CONTENT, RECOMMENDATIONS AND INFORMATION PROVIDED ON OR THROUGH 1440 IS SOLELY AT YOUR OWN RISK.

THE SITE IS CONTINUALLY UNDER DEVELOPMENT AND 1440 MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN RESEARCH MAY IMPACT THE FITNESS OR RELATED ADVICE THAT APPEARS ON OR IN CONNECTION WITH THE SITE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE OR RECOMMENDATIONS CONTAINED IN OR THROUGH THE SITE AND/OR A PROGRAM WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

THEREFORE, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU RELEASE, INDEMNIFY, AND HOLD HARMLESS 1440, ITS PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL RESPONSIBILITY, CLAIMS, ACTIONS, SUITS, PROCEDURES, COSTS, EXPENSES, DAMAGES AND LIABILITIES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN OR USE OF THE SITE AND/OR ATTENDANCE AT, PARTICIPATION IN, PURCHASE OF AND/OR USE OF ANY PROGRAM) INCLUDING BUT NOT LIMITED TO WITH RESPECT TO BODILY INJURY, PHYSICAL HARM, LOSS, ILLNESS, DEATH OR PROPERTY DAMAGE.

14.           Limitation of Liability and Damages

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL 1440 OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SITE, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE MATERIALS ON THE SITE, OR ANY OTHER INTERACTIONS WITH 1440, EVEN IF 1440 OR A 1440 AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, 1440’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

IN NO EVENT WILL 1440 OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS HAVE ANY LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE).

15.           Infringement Policy

If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Site infringes your copyrights, please contact us.

16.           Dispute Resolution

a)     General. Generally, if a dispute arises between 1440 and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and 1440 agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Site (a Claim) in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

b)    Choice of Law; Arbitration. These Terms shall be governed in all respects by the laws of the Province of Ontario, without regard to conflict of law provisions. You agree that any claim or dispute you may have against 1440 must be resolved solely by binding, individual arbitration in Toronto, Ontario in accordance with the ICC Rules of Arbitration for the time being in force. The language of the arbitration shall be English. The arbitration tribunal shall consist of one arbitrator appointed by the chairman of the ICC Canada Arbitration Committee.

c)     Arbitration Exceptions. As limited exceptions to Section 16(b) above: (i) you may seek to resolve a Claim in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Claim if you provide us with written notice of your desire to do so by email sent to greg@the1440affiliate.com within 30 days following the date you first agree to these Terms.

17.           Miscellaneous

a)     Successors; Assignment; No Third Party Beneficiaries. We may assign our rights and obligations under these Terms at any time in its sole discretion without notice to you. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without 1440’s prior written consent.

b)    Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.

c)     Electronic signatures and agreements. You acknowledge and agree that by clicking on the button labeled "CONFIRM PURCHASE," "SUBMIT", "DOWNLOAD", "PLACE MY ORDER", "I ACCEPT" or such similar links as may be designated by 1440 to accept the terms and conditions of these Terms, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OR SERVICES OFFERED BY 1440. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

d)    Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

e)     Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and 1440 relating to the subject matter herein.

f)     Claims; Statute of Limitations. IN THE EVENT YOU HAVE A CAUSE OF ACTION THAT IS NOT OTHERWISE BARRED BY THESE TERMS, YOU AND 1440 AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE AND/OR ATTENDANCE AT, PARTICIPATION IN, USE OF OR PURCHASE OF PROGRAMS) MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

g)     Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms. Further, in the event we choose to grant an exception to these Terms, any such exception is in our sole discretion and does not entitle you or anyone else to any exceptions in the future for similar circumstances.

h)    Remedies. 1440’s rights and remedies hereunder are cumulative and not exclusive.

i)      Notice. Except as explicitly stated otherwise, legal notices will be served, with respect to 1440, to 1440’s email address at greg@the1440affiliate.com, and, with respect to you, to the email address you provide to 1440 during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three days after the date of mailing.

j)      Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable in accordance with these Terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.