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Terms and Conditions
Elena Pappas T/A BodE
Terms and Conditions (“The Agreement”)
Elena Pappas t/a as BodE (“hereinafter referred to as BodE”) is a privately owned business which offers a unique online training experience for its viewers. For purposes of this Agreement, whether a viewer purchases the BodE training videos on an ad hoc or once off basis, or should the viewer elect to pay a monthly subscription (hereinafter collectively referred to as the “Viewer”), the Viewer agrees and understands that he/she/it is at all times, strictly bound by the terms and conditions as set out herein.
VIEWERS OWN RISK
BodE is an online training platform which provides the Viewer with pre-recorded training videos, the purpose of which is to give the Viewer an inside view to BodE’s training routines. As such, BodE is not able to assess the Viewer’s health status, injuries, weight, age, training style or form. As such, Viewers are encouraged to seek medical advice from a registered medical practitioner before attempting any of the BodE training videos or workouts. Any participation or attempt to follow a BodE workout is at the sole risk of the Viewer, and the Viewer indemnifies BodE and holds it harmless against any loss or damage or liability which the Viewer may suffer or incur in connection with the online training videos offered by BodE, howsoever arising.
LICENSE TO USE VIEWER’S CONTENT
The Viewer grants BodE a perpetual, non-exclusive, sublicensable, irrevocable and royalty-free worldwide license to utilise any content posted or created by the Viewer (“hereinafter referred to as the “Content”) which relates directly or indirectly to BodE, and shall include but not be limited to all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works of, publicly perform, make available and otherwise exploit such Content through any and all media channels or platforms including but not limited to Instagram, Facebook, YouTube and Twitter. This shall include any number of copies of the Content and without limit as to time, manner and frequency of use, without further notice to, with or without attribution, and without the requirement of permission from or payment to the Viewer or any other person or entity. This includes without limitation BodE’s use of the Viewer’s content in connection with any advertising, product packaging, printed publications, presentations, promotional materials, events and associated marketing materials, television and digital commercials, videos, social media websites, applications, or on BodE’s website or in any other commercial manner. BodE is not, however, obligated to use any Viewer’s Content.
HEALTH AND FITNESS DISCLAIMER
BodE nor its online training videos are designed in any way to cater for an individual Viewer’s personal circumstances, including but not limited to: age, weight, gender, and/or mental and health status and cannot be relied upon by the Viewer to assist with any injury, disorder or any other medical condition of the Viewer and must not be used as an alternative or substitute for any other recommended training programme, diet or medication which have been subscribed to the Viewer by a qualified medical or health and fitness professional.
BodE makes no representations, undertakings or warranties to the Viewer in respect of any results or progress the Viewer may expect to achieve from participating in or utilising the BodE online training videos in any manner whatsoever, including but not limited to, weight loss, muscle gain or general cardio fitness, and the Viewer accepts and agrees that it shall have no claim against BodE in this respect, howsoever arising.
The Viewer indemnifies BodE, its directors, officers, employees, managers and advisers and holds it harmless against any cost, loss, damage, injury, death and/or liability incurred by the Viewer or any other third party who may attempt to participate in or utilise a BodE online training video together with the Viewer, for any reason whatsoever. The Viewer further indemnifies BodE in respect of any legal costs expended by BodE in enforcing its rights in terms of this Agreement, on an attorney and own client scale.
Notwithstanding anything to the contrary contained in this Agreement, BodE shall not be liable to the Viewer for any indirect, incidental, special, punitive, loss of profits, consequential or exemplary damages suffered and/or incurred by the Viewer pursuant to this Agreement and/or any participation or the implementation thereof.
LIMITATION OF LIABILITY
BodE shall not be liable for any claim of whatsoever nature (whether in contract or in delict) and whether for damages or otherwise, howsoever arising unless such claim arises from a grossly negligent act or omission on the part of BodE or its servants.
Notwithstanding anything to the contrary contained in this Agreement, BodE shall not be liable for any indirect, consequential and/or contingent loss arising from any act or omission or statement by BodE, its agents, its employees, servants or nominees, whether negligent or otherwise.
Should it be found that BodE is liable to the Viewer in terms of the provisions of this clause, any such liability of BodE shall be limited to a claim sounding in money for the following respective amount:- the Rand (ZAR) value of 6 (six) months subscription to the BodE online training platform, at the prevailing monthly rate charged by BodE from time to time.
The Viewer warrants that he/she/it has the power, authority and legal right to sign and accept this Agreement and constitutes both valid and binding obligations on the Viewer.
This Agreement, which replaces and supersedes any similar agreement previously entered into between BodE and the Viewer, constitutes the whole agreement between the parties relating to the matters dealt with therein and save to the extent otherwise provided no undertaking, representation, term or condition relating to the subject matter of this Agreement which is not incorporated herein shall be binding on either of the parties.
No variation, addition, deletion, or agreed cancellation of this Agreement will be of any force or effect unless reduced in writing and signed by a duly authorised representative of both parties.
No waiver of any of the terms and conditions contained herein will be binding or effectual for any purpose unless in writing and signed by a duly authorised representative of BodE. Any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party in exercising any right, power or privilege under these terms and conditions will constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
This Agreement will inure for the benefit of and be binding upon the successors in title and permitted assigns of the parties or either of them.
Neither party shall be entitled to use or claim ownership to the intellectual property rights, including but not limited to, copyright, patents, trademark, drawings, designs and business plans of the other party, save for the rights afforded to BodE in relation to the Content as set out hereinabove.
Save as otherwise herein provided, neither this Agreement nor any part, share or interest therein nor any rights or obligations hereunder may be ceded, assigned, or otherwise transferred without the prior written consent of the other party.
Each party acknowledges that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the parties in connection with this Agreement.
Notwithstanding anything to the contrary herein contained or implied by law, each and every term and condition of this Agreement shall be deemed to be separate and severable from the other terms hereof. If any term is found by any court of competent jurisdiction to be vague or invalid or unenforceable, that term shall be treated as pro non scripto and shall in no way affect the validity of the remaining terms and provisions hereof.
If any provision, or any part hereof, is held to be unenforceable because of the wording of such provision, the parties hereto agree that the arbitrator or court making such determination shall have the power to delete specific words or phrases, such amended provision having full force and effect.
PROTECTION OF PERSONAL INFORMATION: CONSENT & DECLARATION
The Viewer hereby consents to the collection, processing and use of his/her/its or his/her/its directors or employees’ personal information for the purpose of creating a profile on the BodE system, administration of the Viewer’s obligations in terms of any agreement the Viewer may have with BodE and for related legal and operational reasons which may include: the sharing of the Viewer’s personal information with BodEs’ other entities, employees, agents, subcontractors and affiliates (who may be outside of the Republic of South Africa) on condition that such information is kept private and confidential; and the retention of such information is in terms of the applicable legislation.