BiggestLoser.com Terms and Conditions of Use (Prior to August 20, 2013)
Thank you for your interest in the Biggest Loser (the “Program”), a subscription-based online diet and fitness program provided by NBCUniversal Media, LLC (“NBCUNIVERSAL”, "us", "our", or "we ") (previously provided by Rodale Inc. in conjunction with NBCUNIVERSAL). The Biggest Loser Membership takes the lifestyle modification and weight-loss approach of the NBC Network's hit unscripted show, The Biggest Loser, and adapts it for home use with a customizable diet and exercise regimen based on your weight loss goals.
The BiggestLoser.com website and related websites, services and applications (collectively, the Sites”) are maintained by NBCUNIVERSAL and made available as a service to members of the Biggest Loser (“Members”). As Member, you'll gain full access to the Sites and a customizable online weight loss program that includes: progress tracking and reporting; community features where members can connect and share stories and tips, as well as ask for advice from Biggest Loser diet and fitness experts; tools to get prescribed daily meal plans, print weekly shopping lists, log foods, track nutritional intake, and access to a wealth of the recipes and insightful articles; recommended fitness workouts, with the ability to log and track exercise activity; and other features that come with Biggest Loser membership.
As described in greater detail below, to become a Member you will sign up for an initial membership period (typically one, three or twelve months) and will be charged the applicable subscription fee (if any) for that period. At the conclusion of the initial period, unless you cancel, your membership will automatically continue and renew on a monthly or other ongoing basis (e.g., quarterly, annually), depending on the subscription plan you have chosen, and you will be billed for those renewal periods based on the terms of your specific subscription plan. You can cancel at any time, in which case you won't be refunded the subscription charge for the current period, but you'll have Member access through the end of that period and won't be billed again. There is no minimum membership period. Our membership, billing, cancellation and refund policies are set forth in more detail in Section 2 below.
By signing up to become a Member of the Biggest Loser and using the Sites you agree to the terms of conditions of membership and use of the Sites provided below (the “Terms and Conditions”), so please take a moment to review them before you sign up and begin your life-changing weight loss transformation! If you do not agree with these Terms and Conditions, you should not use the Sites or become a Member.
As between NBCUniversal and You, NBCUniversal owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the Site, Services and Content. You acknowledge NBCUniversal’s valid intellectual and proprietary property rights in the Site, Services, and Content and that your use of the Site and Services is limited to the access, viewing and downloading of Content, all solely as authorized by NBCUniversal. As a user of the Sites, you agree that you shall download and/or use Content solely for your personal, non-commercial use. You may not use the Content in any matter inconsistent with these Terms and Conditions or applicable law, and you may not copy, modify or alter the Content without NBCUNIVERSAL’s express prior written consent.
Please note that the Biggestloser.com is not available or intended for use by residents of the province of Quebec, Canada or outside North America.
1. Health and Medical Disclaimer
2. Offer, Payment and Billing Terms
3. Message Boards, Email, Monitoring Third Party Content
4. General Terms and Conditions
1. HEALTH AND MEDICAL DISCLAIMER
THE WEIGHT LOSS INFORMATION AND OTHER CONTENT PRESENTED ON THE SITES ARE INTENDED ONLY FOR EDUCATIONAL PURPOSES AND TO ASSIST MEMBERS IN THEIR PERSONAL WEIGHT LOSS EFFORTS. NBCUNIVERSAL is not a medical organization and cannot give you medical advice or diagnosis. THE CONTENT AND SITE ARE NOT INTENDED AS A SUBSTITUTE FOR MEDICAL COUNSELING OR CONSULTATION. YOU SHOULD CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING THIS OR ANY OTHER DIET OR FITNESS PROGRAM. DO NOT START ANY DIET OR FITNESS PROGRAM WITH US IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. THE BIGGESTLOSER.COM IS INTENDED FOR HEALTHY ADULTS. NBCUNIVERSAL RESERVES THE RIGHT TO REFUSE OR CANCEL YOUR MEMBERSHIP OR USE OF THE SITES IF WE DETERMINE THAT YOU HAVE OR IF YOU INFORM US THAT YOU HAVE CERTAIN MEDICAL CONDITIONS INCLUDING THOSE REFERENCED BELOW. NBCUNIVERSAL RESERVES THE RIGHT TO CANCEL YOUR MEMBERSHIP SHOULD YOU VIOLATE THESE TERMS AND CONDITIONS AND ANY OTHER POSTED POLICY ON THE SITES AS DETERMINED BY NBCUNIVERSAL IN ITS SOLE DISCRETION.
In becoming a Member with the intent of using the Sites, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of the Sites.
And in becoming a Member with the intent of using the Sites, you further affirm that either (A) all of the following statements are true: (i) you are not allergic to nuts, eggs, dairy products or any other foods; (ii) you are not presently following a diet plan provided to you by a physician or other medical professional for health reasons; and (iii) you have not been medically diagnosed as suffering from diabetes, hypoglycemia, heart disease, high cholesterol or high blood pressure; or (B) your physician has specifically approved your use of the Sites.
And if you are a woman, in becoming a Member with the intent of using the Sites you further affirm that either (A) you are not pregnant, breastfeeding or lactating or (B) your physician has specifically approved your use of the Sites.
You are advised that health, diet & fitness advice is often subject to updating and refining due to medical research and developments. No assurance can be given that the Content will reflect the most recent findings or developments with respect to the particular material. You are encouraged to consult with your health care provider with any questions or concerns you may have regarding any health condition.
2. OFFER, PAYMENT AND BILLING TERMS AND CONDITIONS
A. MEMBERSHIP TERM AND RENEWAL: When you sign up to become a Member, you will select and agree to an initial membership period (typically one, three or twelve months). With the exception of free month subscription and bill for service promotion special offers described below, the fee for the initial membership period will be charged to the credit card you provide five weeks after the promotional period has ended. Upon expiration of the initial membership term, unless you have agreed to three or twelve month membership terms, every membership is automatically converted to a month-to-month membership which will continue and renew automatically until cancelled and you will be billed the applicable renewal fee at the outset of each renewal period. [If you sign up for a membership with a three or twelve month initial period, your membership will automatically renew at the end of the initial period for successive renewal periods of the same duration (i.e., a three or twelve month period) unless you cancel and you will be billed the applicable renewal fee at the outset of the renewal period. You are financially responsible for all associated subscription fees until notice of cancellation is received by NBCUNIVERSAL, subject to the provisions of 2 (B).
The terms of specific special enrollment offers which may be made by NBCUNIVERSAL from time to time are set forth in Section 2.E below.
B. CANCELLATION POLICY: You may cancel your subscription at any time, unless the offer you have selected specifically does not permit cancellation within a specified time period. Cancellation will become effective at the end of the then-current membership period and will not be renewed at the conclusion of that period. You can cancel in one of three ways. To cancel online: log in to your account, click on the "My Account" page, and then click to cancel your membership. To cancel over the phone: call our Customer Service Team toll free at 1-888-987-3684 Monday through Friday between the hours of 9:00 AM and 6:00 PM EST. Please be advised that our Customer Service department is currently closed for the following holidays, subject to change: New Year's Day (January 1); Memorial Day (last Monday in May); Independence Day (July 4); Labor Day (first Monday in September); Thanksgiving Day (fourth Thursday in November); the day after Thanksgiving; Christmas Eve (December 24); Christmas Day (December 25); and New Year’s Eve (December 31). To cancel via email: send a message to firstname.lastname@example.org. You will receive confirmation that your membership has been cancelled.
If you cancel during a renewal period, you will not be entitled to a refund of the membership fee for that (or any earlier) membership period. If you cancel during the initial membership period you will not be entitled to a refund of the initial membership fee except in the following instances: 1) you sign up through a risk-free trial offer and if a cancellation request is actually received by us in accordance with this policy before 4:59 PM ET on the last day of the initial registration period; or 2) the specific offer you have chosen expressly allows for a refund, in which case you are eligible for a refund of a prorated portion of the initial membership fee as described in detail at the time of registration. . If your risk-free trial cutoff date/time falls during a time when our customer service line is closed, your trial period (and your time to cancel) shall be extended to 4:59 PM ET on the next business day that the customer service line is open (Monday if it occurs during the weekend) and if you cancel by such new extended deadline time, we will provide you with a full refund of your first month subscription fee (with no deduction for the extra day of service), per the terms above.
If you are entitled to a refund under this provision, you will receive any refund due as a credit to your credit card account. If you do not sign up through the risk free trial offer or other special offer allowing for a refund, or if you decide to cancel your membership at any other time you WILL NOT receive a refund. Because we do not bill on a daily basis, canceling on a Friday versus a Monday will not mean that you are billed for additional days. We will confirm receipt of your cancellation request via email. We are under no obligation to cancel your account or provide any refund unless your cancellation request is actually received by it in accordance with this policy.
C. AUTOMATIC RENEWAL: After the initial membership term ends, membership will automatically renew on a periodic basis, of one, three or twelve month or thirteen week terms, depending on the offer you have chosen. Membership will renew on the day after the initial membership ends, and renew on the same date of the month at the beginning of the next membership period thereafter. You may cancel your subscription at any time in accordance with Section B above. There is no minimum number of membership terms that you must purchase. After your initial membership term, your credit card will be automatically charged on monthly basis for as long as you remain a Member. For special “Bill for Service” promotions described below, you will automatically receive periodic bills for as long as you remain a Member.
D. PAYMENT AND BILLING POLICIES: PLEASE NOTE THAT WE ONLY ACCEPT CREDIT CARD PAYMENTS AND DO NOT ACCEPT DEBIT CARD PAYMENTS AT THIS TIME. YOU AGREE TO NOTIFY NBCUNIVERSAL IMMEDIATELY IN WRITING OR VIA EMAIL (AT email@example.com IF YOU DISCOVER THAT THE CARD NUMBER YOU PROVIDED TO NBCUNIVERSAL WHEN YOU REGISTERED FOR MEMBERSHIP IS A DEBIT CARD NUMBER.
Certain products or Services, including but not limited to enrollment in the Biggestloser.com, may be offered for sale on the Sites. In the event you wish to purchase or to subscribe for any of these products or Services, you will be asked by NBCUNIVERSAL to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide NBCUNIVERSAL with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchases. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes.
If you open a Member subscription account on any of the Sites, you hereby agree to pay all charges to your account, including any applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. NBCUNIVERSAL reserves the right to change the amount of, or basis for determining, any fees or charges, and to institute new fees, charges or terms effective upon notice to Members.
If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to immediately and without notice, either suspend or terminate your access and account, thereby terminating all of NBCUNIVERSAL's obligations under this Agreement. You are required to pay any amounts still owed to us at the time your account is suspended or terminated.
To review the billing terms of your account, you may email firstname.lastname@example.org.
E. SPECIAL OFFERS: From time to time, the following special offers, among others, may be made by NBCUNIVERSAL. The listing of these offers does not indicate that they are available to you now or that they will ever be made to you or any other Members or potential Members. These offers shall only be available to you if you receive a valid offer from NBCUNIVERSAL. If you have agreed to one of these special offers, the following terms and conditions apply:
i. RISK FREE TRIAL (WEEKLY BILLING): Limited Time "Risk Free Trial" Subscription offers of specific durations are subject to the terms and conditions as follows: 1. These limited time period risk free trial subscriptions are available either through a dedicated landing page or based on a "gift code"; a gift code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - if the offer is made with a gift code, the code is designed for one-time use and expires when you register to become a Member.2. To accept the risk free trial subscription promotion, you will be required to provide a credit card and you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Acceptance of this offer allows you to cancel your membership during the risk free trial period of the first subscription period and your credit card will not be charged. 4. Cancellations are controlled by Section B above. 5. If you do not cancel during the initial risk free trial period, the credit card you have provided will be charged a weekly membership fee, billed quarterly (every 13 weeks), with a 4-week minimum commitment and your subscription will automatically renew per the terms outlined in Section C above after your initial membership term. 6. If, at any time, you are entitled to a refund, you will receive any refund due as a credit to your credit card account. 7. Of course, you may cancel your membership at any time during any subscription period; however, NO REFUNDS will be given except as expressly outlined herein and in Section B above.
ii. RISK FREE TRIAL (MONTHLY BILLING): Limited Time "Risk Free Trial" Subscription offers of specific durations are subject to the terms and conditions as follows: 1. These limited time period risk free trial subscriptions are available either through a dedicated landing page or based on a "gift code"; a gift code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - if the offer is made with a gift code, the code is designed for one-time use and expires when you register to become a Member. 2. To accept the risk free trial subscription promotion, you will be required to provide a credit card and you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Acceptance of this offer allows you to cancel your membership during the risk free trial period of the first subscription period and your credit card will not be charged. 4. Cancellations are controlled by Section B above. 5. If you do not cancel during the initial risk free trial period, the credit card you have provided will be charged a weekly membership fee, billed on a periodic basis, of one, three or twelve month or thirteen week terms, depending on the offer you have chosen and your subscription will automatically renew per the terms outlined in Section C above after your initial membership term. 6. If, at any time, you are entitled to a refund, you will receive any refund due as a credit to your credit card account. 7. Of course, you may cancel your membership at any time during any subscription period; however, NO REFUNDS will be given except as expressly outlined herein and in Section B above.
iii. FREE MONTH(S) SUBSCRIPTION PROMOTIONS Limited Time "Free" Subscription offers are subject to the terms and conditions as follows: 1. These limited time period free subscriptions are available based on a "gift code"; a gift code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - in either case, the code is designed for one-time use and expires when you register to become a Member. 2. To accept such a free limited time subscription promotion, you will not be required to provide a credit card or any other payment, but you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Use of the gift code entitles you to free full membership and access to the Sites for a limited period of time (the specific time period will depend on the specific offer), and your free membership will expire at the end of that period - unless you renew your membership, you will no longer have access to the Member section of the Sites once the free membership period has ended. 4. Prior to the end of your free subscription period, we will contact you with invitations to continue your membership beyond the end of the free time period. 5. If you have not agreed to renew prior to the end of your free time period, on your next visit to the Member section of the Sites, you will be asked to provide a credit card to continue your membership for the price and terms set forth under a new, fee-based subscription offer. You will be billed for the amount required pursuant to that new offer as soon as you accept the new offer. Your subscription will then automatically renew per the terms outlined in Section C above. 6. Of course, you may cancel your membership at any time during your free subscription period. Once your free subscription period ends, if you choose to convert to a paid membership, the cancellation policy outlined in Section B above applies.
iv. "2 MONTH RENEWAL" The "2 Month Renewal" offer is subject to the terms and conditions as follows: ]1. The "2 Month Renewal" offer is time limited and must be activated within 14 days of the offer email send date. 2. To accept the "2 Month Renewal" promotion, you must provide the account username and password assigned to your account. 3. If you elect to accept the offer, your account will be altered to reflect the options chosen as soon as payment has been made by crediting your credit card on file.4. The "2 Month Renewal" offer will provide an additional 2 months of the service for the price set forth in the email offer to Members. The offer will be valid for a period of 14 days, at which point the offer will become inactive. For those Members who take advantage of the offer, 2 months will be added to their membership term. You will be billed as soon as you accept the offer. In consideration for the reduced price, NO REFUNDS will be granted for the "2 Month Renewal" program once the offer has been accepted.
v. 3 MONTH AND 12 MONTH RENEWALS" The "3 Month and 12-month Renewal" offer will provide access to the Sites for the price set forth in the offer. This offer is available to current Members. You will be billed the applicable renewal fee as soon as you accept the offer. In consideration for the reduced price, NO REFUNDS will be granted for the "3 Month and 12-month Renewal" program once the offer has been accepted.
vi. NO CREDIT CARD PROMOTION The "No Credit Card" offer allows you free membership and access to the Sites for 10 Days. To accept such a free 10 day membership, you will not be required to provide a credit card or any other payment, but you must register as a Member, including choosing an account username and password that will be assigned to your account. Your free membership will expire at the end of the 10 day period unless you sign up for either a 3-month or 12-month program by agreeing to the terms of those programs and submitting a valid credit card in the Subscription Information portion of the Account Info area. If you do not sign up for either of these plans by the conclusion of the 10 day period, your membership will be canceled.
vii. FREE GIFT(S) with SUBSCRIPTION PROMOTIONS. Limited Time Free Gift(s) with Subscription offers are subject to the terms and conditions as follows: 1. These limited time period free gift(s) with subscription offers are available based on a "offer code"; an offer code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - in either case, the code is designed for one-time use and expires when you register to become a Member. 2. To accept such a limited time free gift(s) with subscription promotion, you are required to provide a credit card and you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Use of the offer code entitles you to a free gift or gifts, as indicated in the offer (NBCUNIVERSAL reserves the right to substitute a gift of equal or greater value), when you pay in full, in advance for a subscription to the Sites at the regular or discounted price and for the term disclosed in the offer. 4. Your subscription will automatically renew after the initial period for additional terms per the terms outlined in Section C above until you cancel. 5. This Offer is only open to residents of the U.S and Canada, excluding Quebec. 6. Of course, you may cancel your membership at any time by following the cancellation policy outlined in Section B above applies.
viii. FREE MONTH(S) WHEN YOU SUBSCRIBE PROMOTIONS. Limited Time free month(s) when you subscribe offers are subject to the terms and conditions as follows: 1. These limited time period subscription offers are available based on a "offer code"; an offer code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - in either case, the code is designed for one-time use and expires when you register to become a Member. 2. To accept this limited time subscription promotion, you will be required to provide a credit card, and you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Use of the offer code entitles you to a free month(s) of full membership on the Sites, when you pay in full, in advance for the subscription period indicated of Sites membership at the regular or discounted price disclosed in the offer. 4. Your subscription will automatically renew after the initial subscription term per the terms outlined in Section C above until you cancel. 5. Of course, you may cancel your membership at any time by following the cancellation policy outlined in Section B above applies, however NO REFUNDS will be offered for any amounts paid for these offers.
ix. BILL FOR SERVICE PROMOTIONS. Limited Time Bill for Service promotions are subject to the terms and conditions as follows: 1. These limited time period subscription offers are available based on a "offer code"; an offer code may be given directly to you to enter on the Sites, or encrypted in a unique URL you use to access the Sites - in either case, the code is designed for one-time use and expires when you register to become a Member. 2. To accept this limited time subscription promotion, you will be required to provide an accurate, current billing address, and you must register as a Member, including choosing an account username and password that will be assigned to your account. 3. Use of the offer code entitles you to full membership in the Biggestloser.com and full access to the Sites, when you agree to the terms of membership as disclosed in the offer, including the obligation to pay in full for the initial subscription period indicated in the offer and any applicable renewal periods. 4. Your subscription will automatically renew after the initial subscription term per the terms outlined in Section C above until you cancel and you will continue to receive periodic bills for the service. 5. Of course, you may cancel your membership at any time by following the cancellation policy outlined in Section B above applies, however NO REFUNDS will be offered for any amounts paid for these offers.
3. MESSAGE BOARDS, EMAIL RULES, MONITORING AND THIRD PARTY CONTENT
A. MESSAGE BOARDS: Message Boards on the Sites will contain information that can be posted and viewed by anyone on the Sites and the Internet. NBCUNIVERSAL does not endorse any information posted on the Message Boards. Please consult a physician or other relevant expert (depending on the nature of the information) before practicing anything you read on the Message Boards or using any information from the Message Boards. NBCUNIVERSAL is not responsible for the information posted on the Message Boards or for editing any factual errors or making any type of corrections to information presented on the Message Boards. Any action taken by a viewer of the Message Boards based on information presented on the Message Boards is at your own risk and could be dangerous or life-threatening.
In using our Message Boards you agree to follow our Community Guidelines that includes these provisions:
Respect everyone's opinions. No profanity or explicit content. No posts, including pictures that might be considered "inappropriate." No posts that could be interpreted as threatening or harassment. No third party solicited advertising or product promotion is permitted (although you may recommend third party products). NBCUNIVERSAL has the right to remove a post if it does not meet these standards, but not the obligation to do so. You have the right to edit any of your posts. If you have started a thread (such as a journal) that you want to close, please post a message indicating "THREAD CLOSED." We do not typically delete threads on request. Understand that posts made by members do not necessarily reflect the views of Rodale NBCUNIVERSAL and should not be taken as medical advice. Posts submitted to the Sites' Message Boards are not considered confidential. These posts may be used by NBCUNIVERSAL for any purpose without requiring permission from the originator.
B. EMAIL RULES: Some of our members will make their email addresses available if they wish to converse with others users. If you use this information, you agree not to transmit "spam" or other unwanted solicitations, or any material that is harassing, threatening, racially offensive, obscene, abusive, harmful, defamatory, invasive of another's privacy, infringing of another's intellectual property rights, or illegal. Members found using email information in this manner may, at the sole discretion of NBCUNIVERSAL, have their membership cancelled without notice. NBCUNIVERSAL is not responsible for the content of email messages sent by a Member or from a third party.
C. MONITORING: Notwithstanding anything to the contrary herein,
D. THIRD PARTY CONTENT: Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties on the Sites or on Sites that are linked to the Sites, including information providers, are those of the respective third parties, and not NBCUNIVERSAL. NBCUNIVERSAL does not guarantee the accuracy, completeness, or usefulness of any third party content. Furthermore, NBCUNIVERSAL neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on any of the Sites or on any site that might be linked to the Sites by anyone other than an authorized NBCUNIVERSAL representatives acting in their official capacity.
4. GENERAL TERMS AND CONDITIONS
A. MINIMUM AGE REQUIREMENTS: You must be 18 years of age or older to sign up for this program and access the Sites.
You agree that as part of the service provided on the Sites, you shall receive periodic email communications from NBCUNIVERSAL. You affirmatively consent to receive those emails. If you use the opt-out mechanism provided by NBCUNIVERSAL , NBCUNIVERSAL shall have the right, but not the obligation, to terminate your account and, notwithstanding any other provision of this Agreement, the right to give you a pro-rata refund.
C. SUBMISSION POLICY: By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, " Submission Materials") or by posting such Submission Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to NBCUNIVERSAL shall be considered fully paid-up and royalty free. In addition, under no circumstances shall NBCUNIVERSAL have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of administrative responsibilities of the Service, or a transfer of all or any portion of NBCUNIVERSAL's business through a merger, sale, transfer or license of all or substantially all of the assets of NBCUNIVERSAL, nor shall the sale or barter of advertising or sponsorship on any of the Sites or any other product sales give rise to any obligation to pay a fee to Subscribers.
None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on NBCUNIVERSAL's part and we shall not be liable for any use or disclosure of any such Submission Materials.
D. ACCOUNTS, PASSWORDS and SECURITY: If any of the Sites require you to open an account, you must complete the registration process by providing NBCUNIVERSAL with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to NBCUNIVERSAL that is untrue, inaccurate, not current or incomplete, NBCUNIVERSAL reserves the right to terminate this Agreement and your continued access and use of the Sites.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify NBCUNIVERSAL immediately of any unauthorized use of your account or any other breach of security. NBCUNIVERSAL will not be liable for any loss or damages of any kind that may arise as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by NBCUNIVERSAL or another party due to someone else using your account or password.
E. PROMOTIONS: NBCUNIVERSAL occasionally provides contests, sweepstakes, games and third party promotions on the Sites. The rules, regulations and procedures governing any of the foregoing promotions shall be accessible through a hyperlink displayed on the web page where the applicable promotion is located. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures. Please remember to read the rules carefully before participating.
F. LIMITED LICENSE: NBCUNIVERSAL grants to you a limited personal, non-exclusive and non-transferable right and license to access the Sites and use the services thereon. Unless otherwise specified in writing, the services are for your personal and non-commercial use.
G. PROHIBITED ACTIVITIES: In connection with your use of the Sites, you acknowledge and agree that you will not:
i. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Sites;
ii. access the Sites by any means other than through the standard industry-accepted or NBCUNIVERSAL-provided or authorized interfaces;
iii. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another's right of privacy or publicity;
iv. impersonate any person or entity, including without limitation, an NBCUNIVERSAL official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
v. post or transmit any material that contains a virus or corrupted data;
vi. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
vii. use any of the Sites' communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
viii. post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation information such as opinions or notices, commercial or otherwise;
ix. violate any applicable local, state, national or international law;
x. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
xi. delete or revise any material posted by any other person or entity;
xii. manipulate or otherwise display the Sites by using framing or similar navigational technology;
xiii. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any NBCUNIVERSAL product or service if you are not expressly authorized by such party to do so; or
xiv. use the Sites for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site in any manner that could damage, disable, overburden or impair NBCUNIVERSAL's servers or networks, or interfere with any other user's use and enjoyment of the Sites. Furthermore, you may not attempt to gain unauthorized access to any of the Sites, services, accounts, computer systems or networks connected to NBCUNIVERSAL through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Sites.
H. Infringement Policy:
NBCUNIVERSAL respects the intellectual property of others, and we ask our users to do the same. NBCUNIVERSAL, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right, but not the obligation, to terminate your license to use the Site or Services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. NBCUNIVERSAL accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, in compliance with the Act, if you believe that any such third party materials infringe your intellectual property; please send a written notice to the agent identified below to request a review of the alleged infringement:
Gillian M. Lusins
NBCUNIVERSAL Universal Law Department
30 Rockefeller Plaza, Rm. 1087E
New York, New York 10112
By e-mail: email@example.com
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
• A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site or Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.
• Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NBCUNIVERSAL to locate the material.
• Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or email address.
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law.
• A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
I. DISCLAIMER OF WARRANTIES: THE SITES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITES AND SERVICES, INCLUDING BUT NOT LIMITED TO THE BIGGESTLOSER.COM, ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NBCUNIVERSAL AND ITS AFFILIATES, SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, (iv) THAT THE SITES SHALL BE AVAILABLE WITHOUT DELAY, FAILURE, INTERUPTION OR CORRUPTION DUE TO LOCAL EXCHANGES, INTER-EXCHANGES, CARRIER LINES, ROUTES, SWITCHES AND OTHER EQUIPMENT OWNED BY THIRD-PARTIES or (v) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES IS ENTIRELY AT YOUR OWN RISK.
J. RELEASE: YOU AGREE THAT NEITHER NBCUNIVERSAL SHINE US HOLDINGS, INC. NOR THEIR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, CONTENT PROVIDERS, PARTNERS OR SUPPLIERS ("RELEASED PARTIES"), SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITES OR ITS SERVICES. YOU FURTHER AGREE TO HEREBY AND FOREVER RELEASE AND WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ANY RELEASED PARTIES FOR ANY AND ALL CLAIMS, CAUSES, DAMAGES OR LOSSES UNDER ANY THEORY OF LIABILITY (INCLUDING ATTORNEYS' FEES AND ASSOCIATED COSTS AND EXPENSES) ARISING FROM YOUR USE OF THE SITES. NOTWITHSTANDING THE FOREGOING, OUR TOTAL LIABILITY TO YOU BY ANY RELEASE PARTY SHALL NOT EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING).
K. LIMITATION OF LIABILITY: YOU EXPRESSLY AGREE AS A CONDITION OF USING THE SITES THAT NEITHER NBCUNIVERSAL, SHINE US HOLDINGS, INC. AND ITS SUBSIDIARIES (collectively “SHINE”), NOR THEIR RESPECTIVEDIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITES; (ii) ANY CONTENT CONTAINED ON THE SITES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITES; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITES, or (vii) ANY OTHER MATTER RELATING TO THE SITES. IN NO EVENT SHALL NBCUNIVERSAL'S OR SHINE’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING).
L. NOTICES: NBCUNIVERSAL may deliver notice to you under this Agreement or any other published policy on the Sites by email, a general notice published on the Sites or by first class U.S. Mail to the street address provided by you at the time you become a member. NBCUNIVERSAL will never request any personally identifiable information from you via electronic or postal mail. If you receive an email or postal mail that purports to be from us that requests personally identifiable information from you, and specifically, your credit card number, please do not reply to that email or request. You may give notice to us via email, by certified U.S. Mail postage prepaid or by nationally recognized overnight courier to the following address:
NBCU-100 Universal City Plaza, Building 1440123
Universal City, CA 91608
M. GEOGRAPHIC LIMITS OF SERVICE: NBCUNIVERSAL makes no representation or warranty that the content and materials on the Sites are appropriate or available for use in locations outside the United States, its territories and possessions and Canada (excluding Quebec). Those who choose to access the Sites from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. NBCUNIVERSAL reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Sites to any person, geographic area, or jurisdiction we so desire. The Biggestloser.com Site is not available or intended for use by residents of the province of Quebec, Canada.
N. TERMINATION: This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that NBCUNIVERSAL, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites, and remove and discard any content within the Sites, at any time and for any reason. You agree that any actions taken under this Paragraph may be effective without prior notice to you. In the event of termination, however, those portions of this Agreement that provide for continuing obligations on your part shall survive indefinitely.
You agree to defend, indemnify and hold harmless NBCUNIVERSAL, SHINE and their parent and subsidiary companies and divisions, affiliates and respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or accruing from (a) any material posted or otherwise provided by you (including without limitation Submission Materials), or any other user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy, (b) any misrepresentation made by you in connection with your use of the Sites; and (c) any breach of any of the representation, warranties or other terms or conditions relating to use of your Submission Materials.
P. ASSIGNMENT: You may not assign or transfer your rights or the license granted to you under this Agreement without NBCUNIVERSAL express, prior written consent. Any attempt to assign or transfer your rights or license shall immediately terminate this Agreement and, notwithstanding anything to the contrary herein, you shall forfeit any amounts paid, without a right to a refund.
NBCUNIVERSAL may assign its rights and interest in this Agreement or otherwise at any time and without notice to you or your consent.
Q. Binding Arbitration of All Disputes:
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms and Conditions, if you have any dispute or disagreement with us, including SHINE regarding (i) your use of or interaction with the Sites, (ii) any purchases or other transactions or relationships with NBCUNIVERSAL or SHINE, or (iii) any Submission Materials or other data or information you may provide to NBCUNIVERSAL or SHINE or that NBCUNIVERSAL or SHINE may gather in connection with such use, interaction or transaction (collectively, “NBCUNIVERSAL Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Sites, or engaging in any other NBCUNIVERSAL Transactions or Relationships with us, you agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our the Sites, you agree that any complaint, dispute, or disagreement you may have against NBCUNIVERSAL or SHINE, and any claim that NBCUNIVERSAL or SHINE may have against you, arising out of, relating to, or connected in any way with these Terms and Conditions, our respective privacy policies, or any NBCUNIVERSAL Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, NBCUNIVERSAL or SHINE agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Paragraph 18, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 4.Q shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that:
a) the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and NBCUNIVERSAL or SHINE (the “Arbitrator”);
b) the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and Conditions and/or these arbitration provisions in Section 4.Q hereof, including but not limited to any claim that all or any part of these Terms and Conditions is void or voidable;
c) the Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and NBCUNIVERSAL or SHINE; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
d) the Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
e) the Arbitration can resolve only your and/or NBCUNIVERSAL or SHINE’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
f) the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
g) in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, NBCUNIVERSAL or SHINE will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
h) in the event you recover an Award greater than NBCUNIVERSAL’s or SHINE’s last written settlement offer, the Arbitrator shall also have the right to include in the Award NBCUNIVERSAL’s or SHINE’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but NBCUNIVERSAL and SHINE shall in all events bear their own respective attorneys’ fees; and
i) with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor NBCUNIVERSAL or SHINE shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
j) NBCUNIVERSAL may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after NBCUNIVERSAL has given notice of such modifications and only on a prospective basis for claims arising from NBCUNIVERSAL Transactions and Relationships occurring after the effective date of such notification.
k) Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against NBCUNIVERSAL or SHINE in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
R. Notice for California Users:
Under California Civil Code Section 1789.3, California users of the Sites are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210 Updated on Feb 28, 2011
S . MISCELLANEOUS TERMS AND CONDITIONS: These Terms and Conditions constitute the entire agreement and understanding between you and NBCUNIVERSAL and governs your use of the Sites, superseding any prior agreements between you and NBCUNIVERSAL. These Terms and Conditions and the relationship between you and NBCUNIVERSAL shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. Any court action arising from, relating to or in connection with these Terms and Conditions will be brought exclusively in the federal or state courts located in New York, New York, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise. The failure of NBCUNIVERSAL to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from this agreement and shall not affect the validity and enforceability of any remaining provisions. No waiver by NBCUNIVERSAL of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.