These Terms and Conditions (“Terms”) are between you (“you” or “Member”) and Santa Barbara StudioPass LLC (“StudioPass”, “we”, “our” or “us”) and govern your access to and use of any StudioPass website, mobile application or content, domains or subdomains or products and/or services made available through StudioPass (collectively, the “Platform”). Please read these Terms carefully before accessing and using the Platform.
a) Acceptance of Terms. By accessing, browsing, and/or using the Platform, 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, discontinue use of our Platform.
b) Amendment of Terms. StudioPass may amend the Terms from time to time. Unless stated otherwise, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Platform after such posting constitutes your consent and agreement to be bound by the amended Terms.
c) Additional Terms. In addition to these Terms, when using particular series, offers, products, services or features, you will also be subject to any additional posted guidelines or rules applicable to such series, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms 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.
2. STUDIOPASS MEMBERSHIP.
a) StudioPass Network. StudioPass is a monthly membership that enables StudioPass Members to reserve, schedule, and access a wide range of fitness classes and services offered and operated by third party fitness studios, gyms, trainers, venues or other third parties through StudioPass network (“Studios” or “Studio”). StudioPass is not a fitness studio, gym, trainer, or other similar service provider and does not own, operate or control any of the classes, services or facilities provided by the Studios or accessed through your Membership.
b) Membership. Your StudioPass Membership starts on the date that you sign up for a Membership and submit payment via a valid Form of Payment, as defined below (“Membership”). Unless we otherwise communicate a different time period to you at the time of sign up, each StudioPass Membership is a month in length (a “Membership Series”), and will automatically renew on the same date each month until your Membership is cancelled or terminated. You must provide us with a current, valid, accepted method of payment (which we may update from time to time, “Form of Payment”) to access StudioPass’s Services. We will automatically bill the monthly Membership fee to your Form of Payment each month until your Membership is cancelled or terminated.
c) Bookable Classes. Each Member receives classes or other available service appointment per Membership Series (“Bookable Classes”) to be used to visit any Studios of their choice available to such Member in the Studios network. StudioPass reserves the right to change from time to time the number of Bookable Classes a Member may take per period, membership series, geography, Studios or otherwise. We also may change the number of bookings a Member may make and also the number of canceled or missed classes that a Member may incur at any time.
d) Visits per Studio per Membership Series and Booking Limitations. You may take an unlimited number of Bookable Classes per month, except that you may not visit more than one (1) Studio per day and you may not visit an individual Studio more than three (3) times per Membership Series. If a Studio has more than one (1) location, you may visit each individual location up to three (3) times per Membership Series. You may hold up to five (5) upcoming bookings for Bookable Classes in your account at any given time. Once you have reached this limit, you must either attend a reserved Bookable Class or cancel a booking to reserve a space in another Bookable Class.
e) Term of Membership Series. We may offer a number of different types of Membership Series, including special promotional series or memberships, with differing pricing, terms, lengths, conditions and limitations. We reserve the right to modify, terminate or otherwise amend our offered Membership Series at any time.
f) Studios and Class Availability and Allocation. StudioPass makes no guarantee rendering the availability of particular Studios, times, instructors, Studio locations, Bookable Classes or other services, and availability may change over time, including during the course of any given Membership Series.
g) Use of StudioPass. Your Membership is personal to you and you agree not to create more than one (1) account. Members cannot transfer or gift Bookable Classes to third parties, including other StudioPass Members. StudioPass may not be used for commercial purposes. To use your Membership you must have access to the Internet. We continually update and test various aspects of the Platform. We reserve the right to, and by using our service you agree that we may, include or exclude you from such update or test without notice.
a) Automatic Billing. By starting your Membership, you authorize us to charge you for your initial Membership Series and a recurring fee for each subsequent Membership Series 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 series, and you authorize us to charge your Form of Payment for such varying amounts, which may be billed during each Membership Series in one (1) or more charges. You also authorize us to charge you any other fees that you may incur in connection with your use of the Platform and your Membership, such as any applicable sign-up fee, taxes or cancellation, no-show, or late fees, as further explained below.
b) Billing Period. When you sign up and purchase your Membership, your first Membership Series will be billed immediately. Your Membership will automatically renew each month and you will be billed on the same date each month. In the event your Membership began on a day not contained in a given month, we may bill your Form of Payment on a day in the applicable month or another day as we deem appropriate. For instance, if you started your Membership on May 31st, your next payment date will be April 30th, and your Form of Payment would be billed on that date, and on that same date in the months following. Your renewal date may change due to changes in your Membership. We reserve the right to change the timing of our billing and to adjust your charges accordingly.
c) Refunds. Our fees are nonrefundable and any refunds shall be made in our sole and absolute discretion. Our decision, if any, to issue a refund shall not entitle you or any other Member to any discounts or refunds in the future for similar events and/or occurrences.
d) Price and Fee Changes. We reserve the right to adjust pricing or fees at any time. Unless we expressly communicate otherwise, any price or fee changes to your Membership will take effect on your next billing period. We shall provide you at least two weeks’ notice of such pricing change by email communicated through a posting on the Platform, or such other means as we may deem appropriate from time to time.
e) Form of Payment. You may edit your Form of Payment information by logging into your online account and changing the billing information on the “Edit your Profile" page. If a payment is not successfully completed, due to expiration, insufficient funds or otherwise, and you do not edit your Form of Payment information or cancel your account (see, “Cancellation of Membership” below), you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the Form of Payment, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account or if payment is not successfully settled as described above, we reserve the right, but are not obligated, to terminate your access to our Platform or any portion thereof and terminate or suspend your Membership without prior notice. For payment by credit card, you hereby agree and acknowledge that you are the credit card holder for your account, or have express permission of the cardholder to use their card as a Form of Payment.
f) Cancellation of Membership. You may terminate your Membership at any time by going to the “Edit your Profile” page and clicking the “Cancel Service” button. Following any cancellation you will continue to have access to your Membership through the end of your current Membership Series.
g) Booking and Cancellation of Bookable Classes. As a StudioPass Member you must reserve and cancel your StudioPass Bookable Classes only through the Platform. It is a breach of these Terms if you cancel a class directly with a Studio, including through any online or mobile account you may have with a Studio. If you cancel directly with such Studios, we reserve the right to charge you $20, which may change from time to time, and/or to terminate your Membership. If you do not arrive on time in accordance with the policies of the Studios and have not cancelled in accordance with the cancellation policies contained herein, the Studios are not obligated to permit you to participate in the Bookable Class you have scheduled, you will forfeit your class credit, with no entitlement to any refund or credit, and you may be charged any applicable cancellation or no-show fees provided for herein.
h) Cancellation of Bookable Class by Studio. If you reserve a Bookable Class and it is cancelled by the Studio, then your account will not be charged a class credit for such cancelled Bookable Class.
4. ADDITIONAL FEES.
a) Additional Fees. Your StudioPass Membership Series fee provides you access to Bookable Classes as explained above. In addition to your Membership Series fee, you are responsible for paying late cancellation fees or no-show fees if (i) you do not cancel your scheduled Bookable Class at least twelve (12) hours prior to its scheduled time, (ii) you do not arrive on time in accordance with the policies of the Studios, or (iii) you do not show up for your scheduled Bookable Class. In such instances, a $20 late, cancellation or no-show fee shall apply. We reserve the right to change the policy regarding when we charge fees and to change the amount of any such fees at any time.
b) Studio Fees. In addition to our fees, some of the Studios may also charge equipment or other fees that you will be responsible for directly. Further, StudioPass only provides you access to the Bookable Class for which you reserved and does not include the costs of your use of additional classes or spaces at the Studio.
c) Third Party Fees. You are also responsible for all third party charges and fees associated with your use and accessing the Platform, including, without limitation, internet service provider fees, telephone and computer equipment charges, and taxes.
5. TERMINATION OR MODIFICATION.
a) Termination or Modification. You understand and agree that, at any time and without prior notice StudioPass may (1) terminate, cancel, deactivate and/or suspend your Membership, your account, any orders placed, or your access to or use of the Platform (or any portion thereof) and/or (2) discontinue, modify or alter any aspect, feature or policy of the Platform or your Membership. This includes the right to terminate or modify your Membership prior to the end of any pre-paid or committed period. Upon any termination, we may immediately deactivate, terminate and/or suspend your account and all related information and/or bar any further access to your account information and the Platform. If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of the Platform or your Membership, 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 StudioPass will not be liable to you or any third party for any termination or modification of your Membership, Platform or other services provided by StudioPass regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any such modification or discontinuation made by us is to cancel or terminate your Membership.
b) Infringing or Fraudulent Activity. StudioPass does not permit copyright infringing, fraudulent, abusive or other illegal activities and reserves the right to terminate access to the Platform or terminate the Membership if any person(s) determined to be in violation of this term, which determination shall be made in StudioPass’s sole and absolute discretion. Any such suspected activity that may be grounds for termination of your use of the Platform or your Membership may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies StudioPass may have at law or in equity.
6. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD; PLATFORM ACCESS.
a) Eligibility Criteria. The availability of all or part of our Platform may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow or terminate your Membership at any time based on these criteria. For instance, you must be sixteen (16) years of age or older to use this Platform or to purchase a Membership.
THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE U.S. AND SEPARATE TERMS APPLY TO USERS IN OTHER JURISDICTIONS. THE PLATFORM IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE PLATFORM BY STUDIOPASS. BY USING THE PLATFORM, YOU REPRESENT THAT YOU ARE A RESIDENT OR CITIZEN OF THE UNITED STATES WHO HAS NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE PLATFORM. THOSE WHO CHOOSE TO ACCESS THE PLATFORM 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.
b) Personal Information. You agree that the information you provide to StudioPass at registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and/or mobile device(s), and you agree to accept responsibility for all activities that occur under your account.
8. PROHIBITED CONDUCT.
You promise not to:
Harass, threaten, or defraud users, Members or staff of StudioPass or Studios;
Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users, Members or staff of StudioPass or Studios;
Impersonate another person or access another user’s account without that person’s permission;
Share StudioPass-issued passwords with any third party or encourage any other user to do so;
Permit third parties to use any classes booked under your own Membership, including other Members;
Cancel any StudioPass class directly with a Studio, rather than through the Platform;
Disparage StudioPass with Studios, employees of Studios and StudioPass, Members of StudioPass, or third parties;
Misrepresent the source, identity, or content of information transmitted via the Platform, including deleting the copyright or other proprietary rights;
Upload material (e.g. virus) that is damaging to computer systems or data of StudioPass or users of the Platform;
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; or
Upload or send to Platform users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content as shall be determined by StudioPass in its sole and absolute discretion.
9. PROHIBITED USES.
As a condition of your use of the Platform, you will not use the Platform for any purpose that is unlawful or prohibited by these Terms. You may not use the Platform in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Platform. You may not attempt to gain unauthorized access to the Platform, or any part of the Platform, other accounts, computer systems or networks connected to the Platform, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Platform, any features that prevent or restrict use or copying of any content accessible through the Platform, or any features that enforce limitations on the use of the Platform or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Platform. You agree neither to modify the Platform in any manner or form, nor to use modified versions of the Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Platform. The Platform may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Platform 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 Platform.
StudioPass reserves the right to refuse service, terminate, cancel or suspend a Membership or access to the Platform, remove or edit content, or cancel orders in their sole discretion.
10. USER FEEDBACK.
If you provide StudioPass with any comments, bug or system problem reports, feedback, or modifications proposed or suggested by you to the Platform (“Feedback”), StudioPass shall have the right to use such Feedback at its sole and absolute discretion, including, but not limited to, the incorporation of such suggested changes into the Platform or StudioPass’ Membership or offered services. You hereby grant StudioPass a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
11. OWNERSHIP; PROPRIETARY RIGHTS.
The Platform is owned and operated by StudioPass. The visual interfaces, photos, graphics, logos, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Platform provided by StudioPass (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of the Unites States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Platform are the copyrighted property of StudioPass or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to StudioPass or its affiliates and/or third-party licensors. Except as expressly authorized by StudioPass, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
12. THIRD-PARTY RESOURCES.
The Platform may include links or access to other third party websites, products, information or services (“Resources”) solely as a convenience to you. StudioPass does not endorse any such Resources or the information, material, products, or services contained or provided by the Resources or accessible through other Resources. Furthermore, StudioPass makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Resources. ACCESS AND USE OF RESOURCES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON RESOURCES OR AVAILABLE THROUGH RESOURCES, IS SOLELY AT YOUR OWN RISK.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Platform are solely between you and such advertiser. YOU AGREE THAT STUDIOPASS 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 ADVERTISERS ON THE PLATFORM.
13. NOTICE AND COMMUNICATION.
Except as explicitly stated otherwise, legal notices will be served, with respect to StudioPass, on StudioPass’ registered agent, and, with respect to you, to the email address you provide to StudioPass during the registration process. Notice will be deemed given twenty-four (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. By using the Platform or providing your email address, you are communicating electronically your consent to receive communications from StudioPass electronically and to allow StudioPass to communicate with you electronically, which includes but is not limited to email or posting notices on the Platform. You understand and agree that all and any agreements, amendments, notices, disclosures, and other communications by StudioPass provided electronically shall satisfy any legal or other requirements that such communication be in writing.
14. DISCLAIMERS; NO WARRANTIES.
ALL BOOKABLE CLASSES, ACTIVITIES, AND OTHER NON-STUDIOPASS PRODUCTS AND SERVICES OFFERED VIA THE PLATFORM ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT STUDIOPASS. YOUR ATTENDANCE AT AND PARTICIPATION IN THESE CLASSES, ACTIVITIES, AND YOUR USE OF THESE NON-STUDIOPASS PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL STUDIOPASS BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY STUDIO OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN ANY BOOKABLE CLASS, OR ANY OTHER CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE PLATFORM, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY STUDIO OR OTHER THIRD PARTY PROVIDER IN CONNECTION WITH SUCH BOOKABLE CLASS, OR ANY OTHER CLASS, SERVICE, PRODUCT, OR APPOINTMENT. STUDIOPASS IS NOT AN AGENT OF ANY STUDIO OR OTHER THIRD PARTY PROVIDER.
THE PLATFORM AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM 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, STUDIOPASS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, STUDIOPASS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE PLATFORM AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE PLATFORM AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE PLATFORM IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
CERTAIN STATE 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, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. WAIVER AND RELEASE.
You understand that StudioPass is not a fitness studio or other service provider and the classes you take or services you use are operated and delivered by the applicable Studios and not by StudioPass. Although StudioPass endeavors to offer inventory that is of high quality, StudioPass is not responsible for the quality of any Bookable Class or any other class or service. You understand that there are certain inherent risks and dangers in exercising and that the classes and activities you may attend offer a range of activity and intensity level. By signing up for a Membership, 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 and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of any such injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any Bookable Class, or any other class or service is appropriate for you. You also understand and agree that the Platform offers health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the Platform is solely at your own risk.
Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless StudioPass, 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 your StudioPass Membership, including with respect to bodily injury, physical harm, illness, death or property damage.
Section 1542 of the California Civil Code provides that:
"A general release does not extend to claims which the party does not know or suspect to exist in his or her favor at the time of executing this release, which if known by him or her must have materially affected his settlement with the other party."
YOU HEREBY EXPRESSLY WAIVE ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (or any statute of like effect in the jurisdiction in which you are located). This waiver extends to and includes any and all claims, liabilities, injuries, damages, and causes of action that the parties do not presently anticipate, know, or suspect to exist, but that may develop, accrue, or be discovered in the future.
16. INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify and hold StudioPass, its affiliated companies, and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your misuse of the Platform, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
17. LIMITATION OF LIABILITY AND DAMAGES.
UNDER NO CIRCUMSTANCES WILL STUDIOPASS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF STUDIOPASS 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, STUDIOPASS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
STUDIOPASS’ LIABILITY TO YOU IS LIMITED TO $50 OR THE AMOUNTS, IF ANY, PAID BY YOU TO STUDIOPASS UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER STUDIOPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. STUDIOS WAIVERS AND TERMS.
Members taking Bookable Classes are deemed to agree to the liability waivers of each individual Studio. Your participation in any Bookable Class or any other class or service may be subject to additional policies, rules or conditions of the applicable Studio and you understand and agree that you may not be permitted to reserve or attend a Bookable Class at a particular Studio if you do not comply with these Terms or the policies of such Studio. If you have questions about a Studio’s waiver or other terms, please see the applicable Studio’s website or contact the Studio directly.
19. COPYRIGHT POLICY.
Please see our Copyright Policy for an explanation of our infringement and trademark policies.
20. ARBITRATION AGREEMENT.
PLEASE READ THE FOLLOWING CAREFULLY:
a) Purpose. Pursuant to the Federal Arbitration Act, and other laws validating arbitration arrangements, this Arbitration Agreement facilitates the prompt and efficient resolution of any dispute that may arise between you and StudioPass. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided by a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you and StudioPass shall be resolved by binding arbitration. This Arbitration Agreement replaces your right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Your entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court, a waiver of your right to a jury trial, and all opportunity for you to have your potential dispute(s) with StudioPass to be heard by a judge or jury. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees). Court review of an arbitration decision or award is very limited.
For the purpose of this Arbitration Agreement, “StudioPass” means StudioPass and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and StudioPass regarding any aspect of your relationship with StudioPass, whether based on contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability and/or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that is enforceable under applicable law.
BOTH STUDIOPASS AND YOU AGREE THAT ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
b) Pre-Arbitration Dispute Resolution. For all Disputes, you must first give StudioPass an opportunity to resolve the Dispute before commencing the arbitration process. You must commence this pre-arbitration dispute resolution process by mailing written notification to StudioPass, c/o Buynak, Fauver, Archbald & Spray, LLP, 820 State Street, 4th Floor, Santa Barbara, California 93101. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If StudioPass does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
c) Arbitration Procedures. If your Dispute is not resolved as provided above (“PreArbitration Dispute Resolution”) either you or StudioPass may initiate arbitration proceedings in Santa Barbara, California, pursuant to the Federal Arbitration Act. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. As agreed below, you are waiving any right to pursue or participate in a class action to resolve your dispute(s) with StudioPass. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement. The party requesting arbitration on or about this Agreement shall make a demand on the other party(ies) by certified mail and the party(ies) shall select or have appointed a single, neutral arbitrator within thirty (30) days. Failing such appointment, an arbitrator shall be appointed by the Presiding Judge of the Santa Barbara Superior Court. Each party shall have a right to discovery in the arbitration proceedings, as follows: (1) Maximum of one (1) document request, with reasonable limitations on the number of document category requests to be made; (2) Maximum of two depositions of six hours each; (3) The parties shall exchange the names of no more than two expert witnesses and each party shall be entitled to depose such experts in addition to the foregoing depositions; and (4) Absent exceptional circumstances (to be decided by the arbitrator), the arbitration shall not exceed two (2) days in length, with each side(s) allowed no more than six (6) hours each for presentation of their entire case. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules pursuant to the Federal Arbitration Act. Under no circumstances will class action procedures or rules apply to the arbitration. The arbitrator shall be a retired judge or practicing lawyer licensed to practice law in the State of California and whose practice has been devoted primarily to business and contracts law for at least ten (10) years. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the State of California.
d) Arbitration Award. The arbitrator may award on an individual basis only any relief that would be available pursuant to applicable California law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator’s decision shall not be appealable, except for fraud or the other few recognized grounds under California law, to any court, but, instead, shall be final and binding and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
e) Location of Arbitration. Arbitration shall be initiated and held in Santa Barbara, California.
f) Payment of Arbitration Fees and Costs. Each party shall pay their own arbitration filing fees and arbitrator’s costs and expenses and any and all additional fees and costs that each party shall incur in the arbitration, including, but not limited to, attorneys’ fees or expert witnesses. Attorneys’ fees and costs may be awarded as provided pursuant to caveat applicable California law.
g) Class Action Waiver. The arbitrator may not consolidate more than one (1) person’s claim(s), and may not otherwise preside over any form of a class, collective or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and StudioPass specifically agree to do so following initiation of the arbitration. Neither you, nor any other Member of StudioPass and/or user of StudioPass’ services, may be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
h) Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and StudioPass are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and StudioPass might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, you give up those rights, including your right to a jury trial. Other rights that you would have if you went to court, such as the general right to appeal and to certain types of discovery, will be more limited in arbitration. For instance, the right to appellate review of an arbitrator’s decision is much more limited than in court, and, in general, an arbitrator’s decision may not be appealed for errors of fact or law.
i) Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be reformed to comply with California law and the objective intent of the parties, or severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court.
j) Survival. This Arbitration Agreement shall survive the termination of your Membership with StudioPass and your use of the Platform and services.
a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. You agree that any claim or dispute you may have against StudioPass must be resolved by a court located in Santa Barbara County, California, except as otherwise agreed by the parties or as described in the Arbitration Agreement paragraph above. You agree to submit to the personal jurisdiction of the courts located within Santa Barbara County, Santa Barbara for the purpose of litigating all such claims or disputes.
b) Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c) 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.
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 StudioPass relating to the subject matter herein.
f) Claims; Statute of Limitations. YOU AND STUDIOPASS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Disclosures. The services hereunder are offered by Santa Barbara StudioPass LLC, located at: 315 Meigs Rd. Suite A252, Santa Barbara, CA 93109 and email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
h) Waiver. No waiver of any of these Terms by StudioPass is binding unless authorized in writing by an executive officer of StudioPass. In the event that StudioPass waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of StudioPass to enforce such rights and terms at a later time.
Effective Date: June 3, 2016