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Terms and Conditions (“The Terms”)
Bode Fitness (Pty) Ltd t/a BodE by Elena Pappas (Registration Number: 2021/471064/07) (hereinafter referred to as “BodE”) is a registered company which offers a unique online training platform to its subscribers by way of a monthly subscription payment (hereinafter referred to as “the Subscriber”) which is accessible to the Subscriber through various media channels. The Subscriber agrees and understands that by accepting these Terms he/she/it is at all times strictly bound by the terms and conditions as set out herein.
BodE is not able to assess the Subscriber’s health status, injuries, weight, age, training style or form. As such, Subscribers 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 Subscriber, and the Subscriber hereby indemnifies BodE and holds it harmless against any injury, claim, loss or damage whether past, present or future, which the Subscriber may suffer or incur in connection with the online training videos or products purchased from BodE, howsoever arising.
LICENSE TO USE SUBSCRIBER'S CONTENT
The Subscriber grants BodE a perpetual, non-exclusive, sublicensable, irrevocable and royalty-free worldwide license to utilise any content posted or created by the Subscriber (“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 Subscriber or any other person or entity. This includes without limitation BodE’s use of the Subscriber’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 Subscriber’s Content.
HEALTH AND FITNESS DISCLAIMER
BodE nor its online training videos are designed in any way to cater for an individual Subscriber’s personal circumstances, including but not limited to: age, weight, gender, and/or mental and health status and cannot be relied upon by the Subscriber to assist with any injury, disorder or any other medical condition of the Subscriber and must not be used as an alternative or substitute for any other recommended training programme, diet or medication which have been prescribed to the Subscriber by a qualified medical or health and fitness professional.
BodE makes no representations, undertakings or warranties to the Subscriber in respect of any results or progress the Subscriber 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 Subscriber accepts and agrees that it shall have no claim against BodE in this respect, howsoever arising.
The Subscriber indemnifies BodE, its directors, officers, trainers, employees, managers and advisers and holds it harmless against any cost, loss, damage, injury, death and/or liability incurred by the Subscriber or any other third party who may attempt to participate in or utilise a BodE online training video together with the Subscriber, for any reason whatsoever. The Subscriber further indemnifies BodE in respect of any legal costs expended by BodE in enforcing its rights in respect of these Terms, on an attorney and own client scale.
Notwithstanding anything to the contrary contained in these Terms, BodE shall not be liable to the Subscriber for any indirect, incidental, special, punitive, loss of profits, consequential or exemplary damages suffered and/or incurred by the Subscriber pursuant to these Terms 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 these Terms, BodE shall not be liable for any indirect, consequential and/or contingent loss arising from any act or omission or statement by BodE, its trainers, agents, employees, servants or nominees, whether negligent or otherwise.
Should it for any reason be found that BodE is liable to the Subscriber in respect of these Terms, 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.
PRICING & CANCELLATION
The Subscriber acknowledges that the monthly subscriptions charged by BodE or any product sold on the BodE platform are subject to increases from time to time and BodE reserves the right to adjust or increase its pricing by providing written notice to the Subscriber, which notice shall contain the date of the increase together any other material updates in respect of the BodE platform. The Subscriber is entitled to terminate his/her subscription at any time, however should cancellation take place after the Subscriber’s designated debit order date then the Subscriber will not be entitled to request a refund of such subscription payment.
The Subscriber warrants that he/she/it has the power, authority and legal right to accept these Terms and constitutes both valid and binding obligations on the Subscriber.
These Terms, which replaces and supersedes any similar agreement previously entered into between BodE and the Subscriber, 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 these Terms which is not incorporated herein shall be binding on either of the parties.
No variation, addition, deletion, or agreed cancellation of these Terms will be of any force or effect unless reduced in writing and signed by a duly authorised representative of BodE.
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.
These Terms 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 these Terms 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 these Terms 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 these Terms.
Notwithstanding anything to the contrary herein contained or implied by law, each and every term and condition herein 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 Subscriber 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 Subscriber’s obligations in terms of any agreement the Subscriber may have with BodE and for related legal and operational reasons which may include: the sharing of the Subscriber’s personal information with BodE’s other entities, trainers, 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.