Terms of Service
Last Updated: Jan 2021
Thank you for your interest in In Color Brand LLC DBA DanceToned (“DanceToned,” “DT,” “we,” or “us”) and our websites at www.dancetoned.com, go.dancetoned.com, (“Websites”), along with our DanceToned mobile software application that has been made available for download (“App”), and any related websites or other online properties that link to this Terms of Service (together with the Websites and the App, the “Service”). This Terms of Service is a legally binding contract between you and DanceToned regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND DANCETONED’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY DANCETONED AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 12, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND DANCETONED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 12.)
1. DANCETONED Service Overview. Through our Service you can stream LIVE dance cardio and sculpt classes (“LIVE Classes”) and on-demand workouts (“On Demand Workouts,” together with LIVE Classes, “Videos”) on your mobile device, tablet, computer or smart television and purchase our branded merchandise (“Merchandise”)
2. Eligibility. The service is not for persons under the age of 13 or for any users previously suspended or removed from the service by DanceToned. If you are under 13 years of age, then you may not use or access the service at any time or in any manner without parental supervision. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age and entered into these Terms on your behalf. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access the App, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, credit or debit card numbers and expiration dates and other payment information, or other contact information. If you sign up through the Websites, you may be required to provide a credit or debit card numbers and expiration dates and other payment information. In addition, if you purchase Merchandise, you will be required to provide us with your shipping address. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You are solely responsible for any losses or damages arising from use of your account and assume all liabilities arising from a third party’s use of your account information. If you believe that your account is no longer secure, then you must immediately notify us at info@dancetoned.com.
4. General Payment Terms. You need to purchase a subscription to access and use the App for the period selected during the order process. DanceToned offers a 7-day free trial to the App. After the 7-day free trial, you will automatically be charged the monthly or yearly membership fee, depending on the subscription type you choose. Before you sign up for the free trial and pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
i.Price. DanceToned reserves the right to determine pricing for the Service. DanceToned will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. DanceToned may change the fees for any feature of the Service, including additional fees or charges, if DanceToned gives you advance notice of changes before they apply. DanceToned, at its sole discretion, may make promotional offers with different features and different pricing to any of DanceToned’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
ii. Authorization. You authorize DanceToned and its third-party payment processors to charge all sums for the orders that you make and type of subscription to the Service you select as described in these Terms or published by DanceToned, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, DanceToned or its third party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
iii. Subscription Service. The Service includes automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize DanceToned or its third party payment processors to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee,” please see our website. You agree that your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Dance\Toned or its third party payment processor will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service through your account settings page or by contacting us at: info@dancetoned.com.
iv. Delinquent Accounts. DanceToned may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any then unpaid amount, including collection fees.
5. Intellectual Property Rights
i. Content. The content that DanceToned provides to users on or through the Service, including, without limitation, any Videos (including, without limitation, in sound recordings (and the musical works embodied therein) incorporated into the Videos (“Video Music”), or any other text, graphics, photos, software, interactive features or materials, are protected by copyright or other intellectual property rights and owned by DanceToned or its third-party licensors (collectively, the “Service Content”). Moreover, DanceToned solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
ii. Marks. DanceToned trademarks, service marks and logos (“DanceToned Trademarks”) used and displayed on the Service are DanceToned’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (“Third-Party Trademarks,” and, collectively with DanceToned Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage DanceToned or the applicable third-party, DanceToned’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any service without DanceToned’s prior express written consent. All goodwill generated from the use of any DanceToned Trademark will inure solely to DanceToned’s benefit.
iii. Licenses. Subject to your complete and ongoing compliance with these Terms, DanceToned hereby grants to you a non-exclusive and non-transferable license to do the following solely within the United States, its territories and possessions, for your personal, non-commercial use and during the term of these Terms: (1) access and use the Service in accordance with its permitted functionalities; (2) live-stream, or temporarily download and stream on-demand, Videos (and the Video Music therein), solely within the Service, provided that you may not access any Video (or Video Music therein) with more than one device at the same time; and (3) download and run the App on any device that you own or control in accordance with its permitted functionalities. Any third-party code that may be incorporated into the App is covered by the applicable open source or third-party license, if applicable.
iv. Feedback. If you choose to provide us with input or suggestions regarding problems with or proposed modifications or improvements to any part of the Service (“Feedback”), then you hereby grant to us a perpetual, irrevocable, non-exclusive, fully-paid and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to you.
v. Reservation of Rights. All rights that we do not expressly grant in this Section 5 above we hereby reserve, and we do not grant any rights or licenses in these Terms by implication, estoppel, or otherwise. Further, you acknowledge and agree that DanceToned reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
vi. License Restrictions. In addition to any other restrictions set forth in these Terms, and without limiting those restrictions, when using the Service, you may not (and not attempt to or assist any other person or entity in doing any of the following):
delete, alter or make unauthorized copies of any content made available on or through any part of the Service:
attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up any part of the Service, except to the extent any such restrictions are expressly prohibited by applicable law;
rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service or content thereon to any third party;
remove, circumvent, disable, damage or otherwise interfere with security-related features of any part of the Service, features that prevent or restrict use or copying of any content accessible on any part of the Service, or features that enforce limitations on use of any part of the Service or any content thereon;
delete any copyright or other proprietary rights notices on any part of the Service;
impersonate any person or entity, falsely claim an affiliation with any person or entity, or access accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity or content of information transmitted via the Service, or perform any other fraudulent activity;
gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
access, tamper or interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; or
violate any applicable federal, state or local laws or regulations or the terms of these Terms.
6. User Content
i. User Content Generally. Certain features of the Service may permit users to upload content to the Service, including ratings and reviews (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
ii. Limited License Grant to DanceToned. By providing User Content to or via the Service, you grant DanceToned a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
iii. User Content Representations and Warranties. DanceToned disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize DanceToned and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by DanceToned, the Service, and these Terms;
b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause DanceToned to violate any law or regulation; and
c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
iv. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. DanceToned may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against DanceToned with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, DanceToned does not permit copyright-infringing activities on the Service.
v. Monitoring Content. DanceToned does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that DanceToned reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time DanceToned chooses to monitor the content, DanceToned still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
7. Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
In Color Brand LLC
ATTN: Legal Department (Copyright Notification)
4175 W Tompkins Av
Las Vegas, Nevada 89103
702.666.2446
Email: info@dancetoned.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
c) a description of the material that you claim is infringing and where it is located on the Service;
d) your address, telephone number, and email address;
e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.2 Repeat Infringers. DanceToned will promptly terminate the accounts of users that are determined by DanceToned to be repeat infringers.
8. Third-Party Services and Linked Websites. DanceToned may provide tools through the Service that enable you to export information to third-party services. By using one of these tools, you agree that DanceToned may transfer that information to the applicable third party service. Third-party services are not under DanceToned’s control, and, to the fullest extent permitted by law, DanceToned is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under DanceToned’s control, and DanceToned is not responsible for their content.
9. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 7, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Term, Termination and Modification of the Service
i. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 7.2.
ii. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, DanceToned may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms through your account settings.
iii. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay DanceToned any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 2, 3, 4, 5.2, 5.4, 5.5, 5.6, 6, 8, 10.3, 11, 12, 13, 14 and 15 will survive.
iv. Modification of the Service. DanceToned reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. DanceToned will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
11. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify DanceToned and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “DanceToned Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. DANCETONED DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. DANCETONED DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DANCETONED DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR DANCETONED ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE DANCETONED ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.
YOU ACKNOWLEDGE AND AGREE THAT OUR LIVE CLASSES AND ON DEMAND WORKOUTS ARE INTENDED FOR USE ONLY BY INDIVIDUALS HEALTHY ENOUGH TO PERFORM STRENUOUS EXERCISE. IF YOU HAVE NOT BEEN PHYSICALLY ACTIVE FOR MORE THAN ONE YEAR, OR IF YOU HAVE ANY MEDICAL HISTORY THAT MAY PUT YOU AT RISK, INCLUDING, WITHOUT LIMITATION, ONE OR MORE OF THE FOLLOWING CONDITIONS, THEN YOU ARE REQUIRED TO SEEK APPROVAL FROM A QUALIFIED HEALTH CARE PRACTITIONER PRIOR TO USING THE EXERCISE SERVICE: HEART DISEASE, HIGH BLOOD PRESSURE, FAMILY HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, CHEST PAIN CAUSED BY PREVIOUS EXERCISE, DIZZINESS OR LOSS OF CONSCIOUSNESS CAUSED BY PREVIOUS EXERCISE, BONE OR JOINT PROBLEMS, DIABETES, HIGH CHOLESTEROL, OBESITY OR ARTHRITIS. IF YOU ARE UNCERTAIN ABOUT YOUR PHYSICAL FITNESS CAPABILITIES, CONSULT WITH A PHYSICIAN BEFORE STARTING ANY OF OUR LIVE CLASSES OR ON DEMAND WORKOUTS.
YOU ACKNOWLEDGE AND AGREE THAT: (1) DANCETONED IS NOT A MEDICAL ORGANIZATION, AND ITS LIVE CLASSES AND ON DEMAND WORKOUTS DO NOT CONSTITUTE MEDICAL ADVICE, PRESCRIPTIONS, OR DIAGNOSES; AND (2) IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, THEN YOU MUST CALL 911 OR EMERGENCY SERVICES IMMEDIATELY.
YOU SHOULD BE AWARE THAT THERE ARE INHERENT HEALTH RISKS IN CONNECTION WITH EXERCISING, INCLUDING, BUT NOT LIMITED TO, THE RISKS OF A STROKE, HEART ATTACK, OR EVEN DEATH. YOUR PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES RECOMMENDED ON THE SERVICE OR PORTRAYED IN THE VIDEOS IS WHOLLY AT YOUR OWN RISK. DANCETONED, ITS AFFILIATES AND SUCCESSORS (AND THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AND AGENTS, INCLUDING, IN ALL INSTANCES, INSTRUCTORS OF OUR LIVE CLASSES AND ON DEMAND WORKOUTS), WILL NOT BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY OF OUR LIVE CLASSES AND ON DEMAND WORKOUTS. WHILE WE MAY PROVIDE GUIDELINES WITH RESPECT TO CERTAIN EXERCISES, YOU ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES WITH PROPER FORM, AND RISK OF INJURY OR ILLNESS INCREASES WITH IMPROPER FORM. YOU MUST SEEK GUIDANCE FROM A QUALIFIED HEALTH CARE PRACTITIONER IF YOU HAVE ANY PREEXISTING INJURIES OR CONDITIONS THAT MAY INTERFERE WITH RECOMMENDED ACTIVITIES.
YOU MUST DISCONTINUE EXERCISE IN CASES WHERE IT CAUSES PAIN OR SEVERE DISCOMFORT, AND YOU MUST CONSULT A QUALIFIED HEALTHCARE PROFESSIONAL PRIOR TO RETURNING TO EXERCISE IN SUCH CASES.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. DanceToned does not disclaim any warranty or other right that DanceToned is prohibited from disclaiming under applicable law.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE DANCETONED ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY DANCETONED ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 12.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE DANCETONED ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO DANCETONED FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Dispute Resolution and Arbitration
i. Generally. In the interest of resolving disputes between you and DanceToned in the most expedient and cost effective manner, and except as described in Section 12.2 and 17.3, you and DanceToned agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DANCETONED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
ii. Exceptions. Despite the provisions of Section 12.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
iii. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 12 within 30 days after the date that you agree to these Terms by sending a letter to DanceToned, Attention: Legal Department – Arbitration Opt-Out, DanceToned, 4175 W Tompkins Ave, Las Vegas, NV 89103 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once DanceToned receives your Opt-Out Notice, this Section 12 will be void and any action arising out of these Terms will be resolved as set forth in Section 13.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
iv. Arbitrator. Any arbitration between you and DanceToned will be settled under the Federal Arbitration Act and administered by JAMS (“JAMS”) under its Comprehensive Arbitration Rules or Streamlined Arbitration Rules, depending on the amount in dispute (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org or by contacting DanceToned. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
v. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). DanceToned’s address for Notice is: DanceToned, 4175 W Tompkins Ave, Las Vegas, NV 89103. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or DanceToned may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or DanceToned must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by DanceToned in settlement of the dispute prior to the award, DanceToned will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
vi. Fees. If you commence arbitration in accordance with these Terms, DanceToned will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the JAMS Rules. Any arbitration hearing will take place at a location to be agreed upon in Las Vegas, Nevada, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse DanceToned for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
vii. No Class Actions. YOU AND DANCETONED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and DanceToned agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
viii. Modifications to this Arbitration Provision. If DanceToned makes any future change to this arbitration provision, other than a change to DanceToned’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to DanceToned’s address for Notice of Arbitration, in which case your account with DanceToned will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
ix. Enforceability. If Section 12.7 or the entirety of this Section 12 is found to be unenforceable, or if DanceToned receives an Opt-Out Notice from you, then the entirety of this Section 12 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 13.2 will govern any action arising out of or related to these Terms.
15. Miscellaneous
i. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and DanceToned regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
ii. Governing Law. These Terms are governed by the laws of the State of Nevada without regard to conflict of law principles. You and DanceToned submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Las Vegas County, Nevada for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Nevada, and we make no representation that Service Content included in the Service are appropriate or available for use in other locations.
iii. Privacy Policy. Please read the DanceToned Privacy Policy [https://www.dancetoned.com/privacy-policy] carefully for information relating to our collection, use, storage, disclosure of your personal information. The DanceToned Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
iv. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
v. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
vi. Contact Information. The Service is offered by In Color Brand LLC , located at 4175 W Tompkins Ave, LV, NV, 89103. You may contact us by sending correspondence to that address or by emailing us at info@dancetoned.com.
vii. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
viii. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
ix. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
16. Notice Regarding Apple. This Section 17 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and DanceToned only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.