Welcome to Vibable Creations! These terms and conditions govern your access to and use of VibableCreations.com, the Vibable Creations App (the “App”), and any other website or application in which we present these terms and conditions (collectively with any content, shopping services, and community services provided those sites and apps, the “Platform”). The Platform is owned and operated by Vibable Creations, LLC. (“Vibable Creations/we/us”). These terms and conditions include and incorporate the additional policies and terms referenced here (collectively with these terms and conditions, the “Terms”). Please read the Terms carefully. By using our Platform, you accept and agree to the Terms. If you disagree with the Terms, please do not use the Platform and exit immediately.
We reserve the right to change the Terms from time to time. These changes will become effective when we post them. Your continued use of our Platform after we post changes to the Terms will mean you accept those changes. Please note our policy regarding resellers below.
THESE TERMS REQUIRE YOU TO SUBMIT CLAIMS EXCLUSIVELY TO INDIVIDUAL (NON-CLASS ACTION) BINDING ARBITRATION. SEE BELOW.
ELIGIBILITY
You must be at least 13 years old to access the Platform. If you are at least 13 years old but less than 18 years old, you can register for an account or use the Platform only after your parent(s), guardian, or legal representative has consented to these Terms. Vibable Creations may at all times request written proof of such consent.
PLATFORM CONTENT
Other than User Generated Content, all of the content featured or displayed on the Platform, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by Vibable Creations, its licensors, affiliates, vendors, agents and/or its Content providers. All elements of the Platform, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark, and other laws relating to intellectual property rights. The Platform may only be used for the intended purpose for which that Platform is being made available.
Except as otherwise indicated in specific areas within the Platform, you are authorized to view, play, print, and download documents, audio, and video found on our Platform for personal, informational, and noncommercial purposes only. You may not modify any of the materials or copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Platform. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Platform. For purposes of these Terms, the use of any such material on any other website or networked computer environment is prohibited. You must comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Platform. The Platform, its Content, and all related rights will remain the exclusive property of Vibable Creations or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark, or other proprietary notices from material found on this Platform.
Content on this Platform may include images of people playing sports and exercising. Please be aware that we are not familiar with your individual physical characteristics and health.
Before you begin an exercise program, you should get a medical checkup. It is important that you warm-up and stretch before engaging in physical activity and that you use common sense while engaging in physical activity. If you experience any pain, feel weak, dizzy, exhausted, or become short of breath, immediately stop your workout. When you engage in physical activity, you assume all inherent risks.
USER-GENERATED CONTENT – INFORMATION CONTROL
All opinions, remarks, comments, artwork, graphics, photographs, links, questions, suggestions, information, videos, and other materials that you or other users of the Platform post, upload, transmit, display or otherwise make available through the Platform (“User Generated Content”) are the sole responsibility of you or the person who provided that User Generated Content. This means that you, not Vibable Creations, are responsible for the User-Generated Content you post, upload, transmit, display, or otherwise make available through the Platform. You must not suggest, directly or indirectly, that Vibable Creations endorses your User Generated Content.
Vibable Creations does not control User Generated Content and does not guarantee the accuracy, integrity, or quality of any User Generated Content. Furthermore, the User Generated Content is for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. We are not responsible for any User-Generated Content and will not be liable for any loss or damage caused by any User-Generated Content or your use of or reliance on it. You understand that by using the Platform, you may be exposed to User-Generated Content that is offensive, indecent, or objectionable. By using the Platform, you may be exposed to User-Generated Content that you find offensive, objectionable, harmful, inaccurate, or deceptive. There may also be risks of dealing with underage persons, people acting under false pretenses, international trade issues, and foreign nationals. By using our Platform, you assume all associated risks.
By posting, uploading, transmitting, displaying, or otherwise making available User Generated Content through the Platform, you agree that:
you are the owner of all rights to that User-Generated Content;
you have waived all “moral rights” that you may have in that User-generated Content, including but not limited to the right to be identified as the author of that content;
you have the right to allow our use of that User-Generated Content under these Terms;
all User Generated Content that you post is accurate; does not violate these Terms; will not result in a violation of any agreement to which you are currently bound or will become bound in the future; does not and will not violate any applicable law; and will not cause injury to any person or entity; and
you are at least 13 years old.
USER-GENERATED CONTENT – YOUR LICENSE TO US
User-generated content remains the intellectual property of the individual user. By posting, uploading, transmitting, displaying, or otherwise making available User Generated Content through the Platform, you grant Vibable Creations a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display that User Generated Content, in whole or in part, throughout the world in any form, medium or technology, whether now known or later developed.
We may modify or adapt User Generated Content, including in order to transmit, display, or distribute it over networks and to conform to the requirements of networks, services, or other media. We or others may, in our sole discretion, refer to your name or other identifiers you provided when posting User Generated Content. You promise that our publication and use of your User Generated Content will not infringe the rights of any third party.
All User-Generated Content that you post, upload, transmit, display, or otherwise make available through the Platform may be used by Vibable Creations in accordance with our Privacy Policy. Vibable Creations reserves the right to change, condense, delete, or refuse to post any User-Generated Content on the Platform at its sole discretion. Vibable Creations does not guarantee that you can edit or delete any User Generated Content you have made available in connection with the Platform. We are not under any obligation to keep confidential the User-Provided Content that you make available through the Platform.
PRODUCTS, FEATURES
All features, content, specifications, products, and prices of products and services described or depicted on this Platform are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. Including any products or services on this Platform at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased from this Platform. By placing an order, you represent that the products ordered will be used only in a lawful manner. All DVDs and similar products sold are for private, home use (where no admission fee is charged), non-public performance, and may not be duplicated.
ACCURACY OF INFORMATION
We attempt to ensure that the information on this Platform is complete, accurate, and current. Despite our efforts, the information on this Platform may occasionally be inaccurate, incomplete, or outdated. Except as prohibited by applicable Massachusetts law, we make no representation as to the completeness, accuracy, or currency of any information on this Platform. For example, products included on this Platform may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Platform. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
SHIPPING LIMITATIONS
When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on this Platform. All purchases from this Platform are made pursuant to a shipment contract. As a result, the risk of loss and title for items purchased from this Platform passes to you upon delivery of the items to the carrier. Please review our Returns and Refunds Policy, which is incorporated into these terms. In addition, if delivery is unsuccessful or refused because you provided the incorrect address, we reserve the right to charge you a restocking and reshipping fee.
THIRD-PARTY LINKS
From time to time, this Platform may contain links to websites that are not owned, operated, or controlled by Vibable Creations or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave this Platform. Neither we nor any of our respective affiliates are responsible for any content, materials, or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, any content, materials, or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from this Platform, you do so entirely at your own risk.
NO RESELLING; OTHER UNAUTHORIZED USE OF COMPUTER SYSTEM
You may not use this Platform to purchase items for resale. if we determine, in our sole discretion, that you are purchasing items for resale, we reserve the right to, without limitation, cancel your order, refuse returns, refuse refunds, charge a restocking fee, close your account, and take any other action we deem reasonable to restrict your current and future reselling of our products. We reserve the right to stop doing business with customers who violate our no-reselling policy.
You agree to comply with all laws, rules, and regulations applicable to your access to and use of the Platform. In addition, you agree not to post, upload, transmit, display, or otherwise make available through the Platform any User Generated Content that is unlawful, misleading, threatening, harassing, defamatory, libelous, obscene, profane, invasive of another’s privacy, or that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, that harms minors or that otherwise violates any law. Such violations may subject the sender and his or her agents to civil and criminal penalties. You further understand and agree that sending unsolicited email advertisements to any user of the Platform or the Platform or through Voice computer systems is expressly prohibited by these Terms. Any such unauthorized use of our Platform or computer systems is a violation of these Terms and applicable “anti-spam” laws. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from this Platform. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
ACCESS AND INTERFERENCE
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. Additionally, you agree that you will not do or attempt to do any of the following: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere with the proper working of the Platform, any activities conducted on the Platform or any networks connected to the Platform; (iii) bypass any measures we may use to prevent or restrict access to the Platform, whether through hacking, password “mining” or any other unauthorized means, (iv) probe, scan, or test the vulnerability of the Platform or any network connected to the Platform, or (v) harvest or otherwise collect and store information about other users of the Platform, including email addresses.
ACCOUNT SECURITY
You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Platform.
FEES
For all charges for any products and services sold on the Platform, Vibable Creations will bill your credit card or alternative payment method offered by Vibable Creations. Any seasonal surcharges will be included in your order’s delivery total and are non-refundable. If legal action is necessary to collect on balances due, you agree to reimburse Vibable Creations for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for the purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of this Platform.
FORCE MAJEURE
Neither Vibable Creations nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
PRIVACY
Your use of our Platform is subject to our Privacy Policy.
DISCLAIMER
Except as prohibited by applicable Massachusetts law, the information, materials, and services provided on or through this Platform are provided “as is” without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Except as prohibited by applicable Massachusetts law, neither Vibable Creations, nor any of its respective affiliates (i) warrants the accuracy or completeness of the information, materials, or services provided on or through the Platform or (ii) makes any commitments or assumes any duty to update such information, materials or services.
Neither Vibable Creations, nor any of its respective affiliates, warrants that the functions contained in this Platform will be uninterrupted or error-free, that defects will be corrected, or that the server that makes the content available will be free of viruses or other harmful components.
Except as prohibited by applicable Massachusetts law , we hereby disclaim all warranties of any kind, either express or implied, including, any implied warranties with respect to the products and services listed or purchased on or through this Platform. Without limiting the generality of the foregoing, we hereby expressly disclaim all liability for product defect or failure, claims that are due to normal wear, product misuse, abuse, product modification, improper product selection, non-compliance with any codes, or misappropriation, except as prohibited by applicable Massachusetts law. We make no warranties to those defined as “consumers” in the Magnuson-Moss Warranty Act.
LIMITATION OF LIABILITY
Your use of the Platform is at your own risk. You agree that our sole obligation to you is to provide the Platform “as is.” Except as prohibited by applicable Massachusetts law, neither Vibable Creations nor any of its employees, officers, directors nor any of its agents or any other party involved in creating, producing, or delivering the Platform shall be liable to you or to any third party for your use of, or the inability to use, the Platform and its Content except in cases of (a) gross negligence, recklessness, or an act of knowing or intentional willful misconduct; or (b) a violation of a consumer protection statute in connection with the Platform.
Except as prohibited by applicable Massachusetts law, in no event will Vibable Creations or any of their respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation, production, or transmission of this Platform, be liable to you or anyone else for any indirect, special, punitive, incidental or consequential damages (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of the use of the Platform, any Platforms linked to this Platform, and its Content, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. Please refer to your local laws for any such prohibitions. Massachusetts RESIDENTS: With respect to these Terms, the provision concerning the exclusion or limitation of certain damages is not applicable in Massachusetts with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property. Please refer to the Section below titled “LEGAL NOTICE TO MASSACHUSETTS RESIDENTS.”
If there are any problems with this Platform or any Content, you agree that your sole remedy is to cease using this Platform. If there is any problem with the products or services that you have purchased on or through this Platform, you agree that your sole remedy, if any, is from the manufacturer of such products or supplier of such services, in accordance with such manufacturer’s or supplier’s warranty, or to seek a return and refund for such product or services in accordance with the returns and refunds policies posted on this Platform. Except as prohibited by applicable Massachusetts law, in no event shall Vibable Creations total liability to you for all damages, losses, and causes of action whether in contract, tort (including, but not limited to, negligence), or otherwise exceed the greater of (a) fifty dollars ($50.00) or (b) the value of your purchase on the Platform.
LEGAL NOTICE TO MASSACHUSETTS RESIDENTS
No provision in these Terms shall apply to any consumer in Massachusetts if the provision limits redress for/under: (i) Vibable Creations’ tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (ii) the Massachusetts Products Liability Act, M.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (iii) the Massachusetts Punitive Damages Act, M.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages if there is harm caused by actual malice, wanton and willful disregard, reckless indifference); (iv) the Massachusetts Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (v) Vibable Creations’ failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the Massachusetts Identity Theft Protection Act, M.S.A.56:8-161, et seq., and the Massachusetts Consumer Fraud Act, M.S.A. 56:8-3, et seq.). With respect to these Terms, the provision concerning the exclusion or limitation of certain damages is not applicable in Massachusetts with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
INDEMNITY
Except as prohibited by applicable Massachusetts law, you agree to defend, indemnify and hold Vibable Creations and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to any violation of these Terms by you or your authorized users, or in connection with the use of the Platform or the Internet or your purchases or the placement or transmission of any message or information on this Platform by you or your authorized users or your violation of any law or the rights of a third party.
RELEASE
If you have a dispute with one or more other users of the Platform, you release Vibable Creations (and its officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
TERMINATION
You or we may suspend or terminate your account or your use of this Platform at any time, for any reason, or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also block your access to our Platform if (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
PLATFORM DISPUTES
“Platform Disputes” include: (a) any claim you may have against Vibable Creations in connection with the Site, (b) any claim Vibable Creations may have against you in connection with the Site, and (c) any action to enforce the Terms and Conditions or to object to the Terms and Conditions.
All other disputes are Non-Platform Disputes. Any claim arising from your purchase of an Vibable Creations product or service is a Non-Platform Dispute. Any claim arising from the content of any offer or advertisement on the Site is a Non-Platform Dispute.
PLATFORM DISPUTE RESOLUTION – ARBITRATION, JURY TRIAL WAIVER, AND CLASS ACTION WAIVER
Neither you nor we will be able to sue in court in connection with a Platform Dispute. All Platform Disputes must be resolved through individual (non-class) arbitration. You indicate your acceptance of these Terms and Conditions, including this agreement to arbitrate, by continuing to use the Site after having the opportunity to review these Terms and Conditions.
You and Vibable Creations intend for this to be an agreement for arbitration that can be enforced under the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1–16.
You and Vibable Creations waive any rights to maintain other available resolution processes for Platform Disputes, such as a court action or administrative proceeding, to settle disputes. You and Vibable Creations waive any right to a jury trial for Platform Disputes.
Instead of suing in court, we each agree to settle Platform Disputes only by arbitration. The rules in arbitration are different. There’s no judge or jury, and review is limited, but an arbitrator can award the same damages and relief and must honor the same limitations stated in the agreement as a court would.
Any Platform Dispute shall be determined by arbitration in Oregon before one arbitrator(s). The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration/. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. If for any reason, JAMS cannot or will not provide this arbitration, the parties may ask any court of competent jurisdiction to select an arbitrator from a list provided by the parties.
To the extent that a party commences any action which includes both Platform Disputes and Non-Platform Disputes, consideration of the Non-Platform Disputes shall be stayed until the Platform Disputes are fully arbitrated. Then, any Non-Platform Disputes will be considered by any court of competent jurisdiction.
You agree that you will not file a class action against Vibable Creations and its affiliated companies, or participate in a class action against Vibable Creations and its affiliated companies, in any Platform Dispute. You agree that you will not file or seek a class arbitration, or participate in a class arbitration against Vibable Creations and its affiliated companies, in any Platform Dispute.
GENERAL
Any claim relating to, and the use of, this Site and the materials contained herein is governed by the laws of the State of Massachusetts, U.S.A. You consent to the exclusive jurisdiction of the state and federal courts located in Norfolk County. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Except as prohibited by applicable Massachusetts law, we do not guarantee continuous, uninterrupted, or secure access to our Platform, and the operation of the Platform may be interfered with by numerous factors outside of our control.
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.
You agree that the Terms may be automatically assigned by Vibable Creations in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Sections 4 (User Generated Content – Your License to Us); 10 (Access and Interference), 16 (Limitation of Liability), 17 (Legal Notice to Massachusetts Residents), 18 (Indemnity), and 19 (Release) shall survive any termination or expiration of the Terms.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
In operating the Platform, we may act as a “services provider” (as defined by DMCA) and offer services as an online provider of materials and links to third-party Platforms. As a result, third-party materials that we do not own or control may be transmitted, stored, accessed, or otherwise made available using the Platform. If you believe any material available via the Platform infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content.
Please provide the following notice:
Identify the copyrighted work or other intellectual property that you claim has been infringed; Identify the material on the Site that you claim is infringing, with enough detail so that we may locate it on the Site; A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner; your address, telephone number, and email address; and your physical or electronic signature.
ENTIRE AGREEMENT
These Terms constitute the entire agreement between the user and Vibable Creations and supersedes any prior understandings or agreements (written or oral).
CONTACT US; SMS TEXT TERMS
If you do not understand any of the foregoing Terms or if you have any questions or comments, we invite you to contact our Customer Service Department by email at vibablecreations.com.
COPYRIGHT AND TRADEMARKS NOTICE
All Site design, graphics, text selections, arrangements, and all software are property of Vibable Creations, LLC.
All trademarks, service marks, and trade names of Vibable Creations used herein (including but not limited to: the Vibable Creations name, the Vibable Creations corporate logo (collectively “Marks”) are trademarks or registered trademarks of Vibable Creations, or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Vibable Creations trademarks in any way, including in advertising or publicity pertaining to distribution of materials on this site, without Vibable Creations’ prior written consent. The use of Vibable Creations trademarks on any other Platform or network computer environment is not allowed. This protects you, too. When you see the Vibable Creations marks, you can be sure of our quality and performance. Vibable Creations prohibits the use of Vibable Creations trademarks as a “hot” link on or to any other Platform unless the establishment of such a link is approved in advance
