This Big Money Stylist End User License Agreement (“Agreement”) constitutes a legally binding agreement between you (“you” or “Participant”) and BMS governing your use and access to the BMS software services and related applications (“Applications”) made available to you through the BMS Platform. All capitalized terms not defined in this Agreement shall have the same meaning as those defined, capitalized terms contained within BMS’s Terms of Service.
By clicking the “I Agree to the End User License Agreement” box, you agree to be bound by this Agreement. BMS may from time to time issue updated versions of the Applications. You consent to such automatic updates and agree that this End User License Agreement will apply to all such updates.
THIS AGREEMENT INCLUDES PROVISIONS FOR BINDING ARBITRATION ON AN INDIVIDUAL BASIS –WHICH INCLUDES A WAIVER OF A RIGHT TO A JURY TRIAL OR A RIGHT TO FILE A CLASS ACTION.
1. Applications License. Subject to the limitations set forth herein, BMS hereby grants Participant a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Applications solely for Participant’s personal, non-commercial use.
2. Reservation of Rights. Except for the limited licenses granted herein, nothing in this Agreement grants to Participant any rights of ownership to BMS ’s copyrights, patents, patent applications, trade secrets, trade names, trademark, service marks or other Intellectual Property.
3. Use Limitations. The Applications are for Participant’s personal use only. Participant shall not use the Applications for commercial purposes. Participant shall not outsource, distribute, redistribute, sell, resell, sublicense or otherwise commercially exploit the Applications.
4. Prohibited Use.
a. You will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Applications.
b. You shall not interfere with nor attempt to interfere with nor otherwise disrupt the proper working of the Applications. Participant shall not violate the security of the Applications or attempt to gain unauthorized access to the Applications, data, materials, information, computer systems or networks connected to any server associated with the Applications, through hacking, password timing or any other means. Participant may neither take nor attempt any action that, in the sole discretion of BMS, imposes or may impose an unreasonable or disproportionately large load or burden on the Applications or the infrastructure related thereto. Participant shall not use or attempt to use any “scraper,” “robot,” “bot,” “spider,” “data mining,” “computer code,” or any other automate device, program, tool, algorithm, process or methodology to access, acquire, copy, or monitor any portion of the Applications without the prior express written consent of BMS. Participant shall not intentionally or unintentionally utilize the Applications in any manner that violates any applicable law, rule or regulation.
c. Export Compliance. The software offered through the Applications may be subject to export laws and regulations of the United States and other jurisdictions. Participant represents and warrants that it is not named on any U.S. government denied-party list. Participant shall not permit access or use any Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
5. Limited Participant Content License. Participant hereby grants to BMS a limited, non-exclusive, perpetual, worldwide, non-revocable, royalty-free license to use Participant Content as is necessary to provide the services embedded within the Applications, in all forms of media in which the Applications are provided, whether now known or later discovered, without further compensation or accounting. This license also grants BMS the right to sublicense Participant Content to third-party coaches and consultants solely for the purpose of engaging with Participant to facilitate the processes and techniques associated with the Applications.
6. Content Restrictions. Participant shall be responsible for all Content uploaded and otherwise exchanged through the Applications. BMS shall have no obligation to prescreen, monitor, edit or remove any Content. BMS reserves the right, to take any action to restrict or remove access to any Content that we deem, in our sole and absolute discretion, to be objectionable, in violation of applicable law, or otherwise in violation of this Agreement.
a. Term. This Agreement shall remain in effect during the term of Participant’s participation in any applicable BMS’s Program Services. Access to the Applications may be terminated at any time in BMS’s sole discretion.
b. Automatic Termination. This Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
c. Cause. BMS may terminate this Agreement immediately if Participant (i) violates any Program Services-related rules, policies and procedures, (ii) fails to make timely Program Services-related payments, and/or (iii) otherwise breaches any material terms of this Agreement.
d. Injunctive Relief. Participant understands and agrees that money damages will not be a sufficient remedy for any breach of Participant’s Use Limitations/Prohibited Use obligations under this Agreement, and that BMS shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach by Participant, but will be in addition to all other remedies available to BMS at law or in equity.
e. Effect of Termination; Survival. The following Sections survive termination of this Agreement: Dispute Resolution, Disclaimers, Indemnification. Limitation of Liability, and Choice of Law.
9. Dispute Resolution.
a. Individual Binding Arbitration. Any claim or controversy with BMS arising out of or relating to the Applications (including formation, interpretation, performance and breach of the Agreement) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) shall be final and binding upon the parties, and any judgment on the award may be entered in any court having jurisdiction thereof. The Federal Arbitration Act, 9 U.S.C. § 1 et. seq., shall govern the interpretation and enforcement of this Agreement.
b. Class Action & Jury Trial Waiver. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. EACH PARTY IS EXPRESSLY WAIVING ITS RIGHTS TO A TRIAL BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
c. Fees; Prevailing Party. Fees associated with any arbitration initiated under this Agreement shall initially be borne equally by the Parties, provided however that the prevailing party in any such arbitration shall be entitled to recover its reasonable attorneys’ fees, costs and expenses incurred in connection with the arbitration.
d. Notice. When initiating a request to arbitrate, Participant must also send a copy of the completed form to BMS at P.O. Box 3835, Dana Point, California 92629.
10. Indemnification. Participant shall indemnify, defend, and hold harmless BMS and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, affiliates, managers, licensors, business partners and each of their respective successors and assigns (the “BMS Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the BMS Indemnified Parties arising out of or relating to Participant’s acts or omissions and/or breach of the terms of this Agreement.
11. Limitation of Liability. IN NO EVENT SHALL BMS’s, OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, VOLUNTEERS, ATTORNEYS, AFFILIATES, MANAGERS, LICENSORS, BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY PARTICIPANT FOR THE PROGRAM SERVICES GIVING RISE TO THE CLAIM.
IN NO EVENT SHALL BMS OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, VOLUNTEERS, ATTORNEYS, AFFILIATES, MANAGERS, LICENSORS, BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE TO PARTICIPANT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF CONSORTIUM), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising from or pertaining to this Agreement and/or the Program Services may be brought by Participant more than ONE (1) YEAR after such action has arisen.
12. DISCLAIMER OF WARRANTIES: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATIONS, CONTENT AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BMS DOES NOT REPRESENT OR WARRANT THAT APPLICATIONS, CONTENT OR SERVICES (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, BMS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE APPLICATIONS, CONTENT, AND SERVICES.
13. General Provisions.
a. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the jurisdiction of the State of California, and venue in the County of Orange, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof.
b. Force Majeure. BMS shall not be liable or responsible to Participant for any delays in providing the Applications as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war or acts of God.
c. Relationship of Parties. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Agreement.
d. Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
e. Modification. No modification of this Agreement shall be effective unless it is either in writing and signed by an authorized representative of BMS or posted by BMS on the Platform.
f. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
g. Assignment. Participant shall not assign any of the rights or obligations under this Agreement without the prior written consent of BMS. This Agreement is assignable by BMS at any time without Participant’s consent.
h. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
i. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
j. Notices. All notices, requests and other communications under this Agreement shall be in writing and shall be delivered in person (by courier or otherwise) or mailed by certified or registered U.S. mail, return receipt requested, to BMS at P.O. Box 3835, Dana Point, California 92629 and to Participant at the email address specified in Participant’s account.
14. Entire Agreement. This Agreement, along with the BMS Terms of Service, shall comprise the entire agreement between the Parties regarding the Applications and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.