Effective Date: May 25, 2019
IMPORTANT: READ THESE TERMS BEFORE ACCESSING OR USING THE SERVICES.
By accessing and using the Services, you (a User) are agreeing to be contractually bound by these Terms. If you do not agree to these Terms, then do not access or use the Services. For any reason and at any time, HAS may modify, amend or supplement these Terms or terminate your access to or use of the Services. Should these Terms be modified, amended or supplemented, then your continued access or use of the Services as of the date these Terms are last updated constitutes your consent to be bound by the modified, amended or supplemented Terms.
The Balance mobile app is a digital application where a Client (User or Client or Client User or Practitioner) can book health and wellness or life coaching sessions with an Instructor (Instructor or Service Provider or Teacher) who will provide such services. Client can search for Instructors based on location. Client can cancel sessions, reschedule sessions, rate Instructors, and submit reviews for Instructors. Users create profiles on the Services. The Services are available solely for personal, noncommercial purposes. All Instructors are Third Party Providers who use the Services to create and maintain profiles that allow them to offer instruction to Clients.
Instructor understands that the relationship Instructor has with HAS by way of Instructor’s access and use of the Services is that of an independent contractor at all times. Instructors are not employees of HAS. Instructors do not have any entitlements, nor do they receive any benefits whatsoever, including but not limited to health/dental insurance, life insurance, retirement, or vacation days. Instructors are responsible for their own personal and business taxes at all times and for their own profits and losses.
So long as your access and use of the Services complies with these Terms, HAS grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to (i) access and use the Applications and their contents on your personal device. All rights not expressly granted herein are reserved by HAS.
Persons under the age of 18 may not use the Services. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. Your use of the Services must not cause nuisance, annoyance, inconvenience, or property damage to any person or third party whatsoever. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. Any Instructor who cancels more than two sessions within any consecutive six month period, for any reason, may be deemed unreliable and may have their profile removed and Account deleted, all at the sole discretion of HAS.
The Services and all rights therein are and remain the property of HAS or its licensors. You are not granted or conveyed any rights by way of these Terms or by way of your use of the Services except for the limited license granted above. You may not otherwise use the Balance mobile app, Balance website, the Balance brand, Balance trademarks, Balance copyright, or the trademarks of HAS or its licensors.
You may not: (i) transfer, transmit, stream, sell, resell, distribute, reproduce, lease, license, modify, broadcast, create derivative works based upon, publicly perform, publicly display, or otherwise exploit the Services except as expressly permitted by HAS; (ii) remove any trademark, copyright or other proprietary identifiers from any portion of the Services; (iii) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks; (iv) disassemble, decompile, or reverse engineer the Services; (v) link to, frame or mirror any portion of the Services; (vi) cause or launch any scripts or programs in order to survey, scrape, index, or otherwise data mine any portion of the Services; or (vii) cause or launch any scripts or programs for purposes of burdening or hindering the operation and/or functionality of the Services.
Network Access and Devices
You must obtain data network access necessary to use the Services. If you access or use the Services from a wireless-enabled device, be aware that data and messaging rates and fees from your mobile network may apply. To access and use the Services and Applications and any updates to them, you are responsible for acquiring and updating compatible hardware and devices. The Services are not guaranteed to function on any particular hardware or devices. Additionally, malfunctions and delays inherent in the use of the Internet and electronic communications may affect the Services.
You must not provide User Content that is unlawful, hateful, violent, defamatory, libelous, obscene, pornographic, or otherwise offensive, as determined by HAS, in its sole discretion, regardless whether such material is protected by law. You acknowledge that HAS may, in its discretion, monitor, review, or remove User Content, at any time and for any reason, without notice to you.
You represent and warrant that either all User Content is solely and exclusively yours, or that you have all requisite rights, licenses, consents and releases to grant HAS the license to the User Content. You also represent and warrant that the User Content and your uploading, publishing and otherwise making available such User Content, including HAS’s use of the User Content as permitted herein, will not violate, infringe, or misappropriate a third party’s intellectual property or proprietary rights, or rights of privacy or publicity, or violate any applicable law or regulation.
Instructors may upload, publish and make available through the Services textual and visual content and information related to their services. Clients may publish and make available through the Services textual reviews and ratings of those Instructors whose services Clients booked thru the Services. Users may use the Services to provide feedback to HAS related to the Services and to initiate support requests. By providing User Content through the Services, you give HAS a perpetual, irrevocable, transferable, worldwide, royalty-free license, with the right to sublicense, to use, modify, copy, distribute, create derivative works of, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including, but not limited to, in connection with the Services and HAS’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
As a Client, you understand that your completion of a transaction using the Services will result in charges to you for the services you receive from your selected Instructor (“Charges”). Full payment will be charged to your credit card upon you booking a session. Charges will be inclusive of applicable taxes where required by law.
If the Instructor cancels a Client session, the Services will search for the nearest available instructors for the same time slot and will forward the request for a Client session to those instructors. If the same time slot is not available, then the Services will search for the nearest time slot available first and then sort by distance and then send the request for a Client session to that nearest instructor. The Services will send the new time and Instructor information to the Client. If the Client cancels the session request or does not find the Instructor through the replacement Instructor process, a notification will be sent to the Client and the concerned Instructor, that the session has been cancelled. At that point, the Services will generate a refund to the Client as follows: If the session is canceled by the Services, then the Services will reverse the appropriate monies (100%) back onto the Client’s credit card thru Stripe. If the session is canceled by the Client within one hour of the start time for the session, then the Services will reverse the appropriate monies (50%) back onto the Client’s credit card thru Stripe, with the Services paying out 45% of the monies to the Instructor thru Stripe, and the Services receiving the remaining 5% of the monies. If the session is canceled by Client at least 24 hours prior to the start time for the session, then Client will receive a 100% refund.
Users understand that gratuities are strictly voluntary and not part of the Services. As a Client, you are under no obligation to pay gratuities as part of the Services. Clients who have booked sessions through the Services will have the opportunity to rate and review Instructors.
As a User, you agree to indemnify and hold HAS and its officers, directors, managing members, members, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services; (ii) HAS’s use of your User Content; (iii) your breach or violation of any of these Terms; or (iv) your violation of the rights of any third party, including Third Party Providers.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HAS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, HAS MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY REGARDING THE QUALITY, TIMELINESS, RELIABILITY, AVAILABILITY, OR SUITABILITY OF THE SERVICES OR ANY SERVICES REQUESTED THROUGH THE USE OF THE SERVICES. ADDITIONALLY, HAS MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. HAS DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU REPRESENT THAT YOU ARE OF GOOD HEALTH AND HAVE CONSULTED WITH A HEALTHCARE PROFESSIONAL REGARDING YOUR ABILITY TO ENGAGE IN HEALTH AND WELLNESS OR LIFE COACHING SESSIONS OFFERED BY INDEPENDENT CONTRACTOR INSTRUCTORS THRU BALANCE.
LIMITATION OF LIABILITY
HAS SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING PERSONAL INJURY, LOST DATA, LOST WAGES, LOST PROFITS, OR PROPERTY DAMAGE, IN CONNECTION WITH, RELATED TO, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF HAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INJURY. HAS SHALL NOT BE LIABLE FOR ANY LIABILITY, LOSSES, OR DAMAGES ARISING OUT OF: (i) YOUR INABILITY TO ACCESS OR USE THE SERVICES OR YOUR USE OR RELIANCE ON THE SERVICES; OR (ii) ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF HAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HAS SHALL NOT BE LIABLE FOR FAILURE OR DELAY IN PERFORMANCE RESULTING FROM CAUSES BEYOND HAS’S REASONABLE CONTROL. HAS’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, INJURIES, LOSSES AND CAUSES OF ACTION SHALL IN NO EVENT EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
YOU AGREE THAT HAS IS NOT RESPONSIBLE OR LIABLE TO YOU RELATED TO ANY SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THESE LIMITATIONS AND DISCLAIMER DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You agree that any dispute, controversy, or claim arising out of or relating to these Terms or the validity, enforcement, breach, termination, or interpretation thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and HAS, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and HAS are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and HAS otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration” section will survive any termination of these Terms.
Arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration section. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act will govern the interpretation and enforcement of this Arbitration section. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration. The arbitrator will either be an attorney licensed to practice law in the state of Arizona and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators, or a retired judge. If the parties are unable to agree upon an arbitrator within five (5) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. Unless you and HAS otherwise agree, the arbitration will be conducted in Phoenix, Arizona, USA. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and HAS submit to the arbitrator. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorney fees and expenses, to the extent provided under applicable law. If HAS prevails in arbitration, it will be entitled to an award of attorney fees and expenses, to the extent provided under applicable law. Your responsibility to pay any AAA filing, arbitrator or administrative fees will be solely as set forth in the AAA Rules.
Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of Arizona, USA, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.
You may not assign these Terms without HAS’s prior written approval. HAS may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of HAS’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, HAS or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. HAS’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HAS in writing.
Claims of copyright infringement should be sent to HAS’s DMCA designated agent.
Notice by HAS may be given by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).