Certification Requirements and Terms & Conditions
These Terms and Conditions set forth the process for becoming certified as a JILLIAN MICHAELS BODYSHRED™ instructor, and also govern your rights and obligations upon becoming certified as a JILLIAN MICHAELS BODYSHRED™ instructor. Please read these Terms and Conditions carefully. By completing your registration for a BODYSHRED™ Certification Workshop, you agree that these Terms and Conditions form a binding contract (the “Agreement”) between you and EM Fitness, LLC (“we” or “us”).
- Requirements to Become a BODYSHRED™ Instructor
1.1. You must be at least 18 years old.
1.3. You must attend the 1-day, in-person BODYSHRED™ Certification Workshop, pass the practical examination administered at the end of the workshop, and pass the web-based at-home written exam with a score of 80% or better.
1.5. We reserve the right to amend or update these requirements from time to time, and such amendments will be posted at https://jillianmichaelsbodyshred.com/bodyshred-certification-terms-and-conditions. Therefore, you are expected to review the terms or conditions posted at https://jillianmichaelsbodyshred.com/bodyshred-certification-terms-and-conditions from time to time so that you are aware of any changes. In addition, except for certified instructors who are also members of SHREDNET™, you will be required to comply with such amended or updated requirements in order to renew your certification pursuant to Section 3.2.
- Process to Become a BODYSHRED™ Instructor
2.1. You may register for a BODYSHRED™ Certification Workshop by visiting https://jillianmichaelsbodyshred.com/bodyshred-certification-workshops and registering and purchasing attendance to a certification workshop. Workshops are available on a first-come-first-served basis only, and while we will place you on a waiting list for one additional workshop at the time you register, we cannot guarantee that a spot will open up for you. Following 72 hours after registering for a Certification Workshop, you will be granted access to an online BODYSHRED™ study guide, a message dashboard and other workshop resources. Although the content of the study guide will be covered during the Certification Workshop, reviewing the information in advance will enhance your workshop experience. Your registration is nontransferable and no other individual will be allowed to take your place at the workshop.
2.2. Upon arrival at your scheduled BODYSHRED™ Certification Workshop you will receive the proprietary BODYSHRED™ Manual. The Manual is protected by copyright law and you may not reproduce, distribute, create derivative works from, share, or display the manual without the written approval of EM Fitness, LLC. You will also be asked to provide a Waiver and Release absolving us of any legal responsibility for any injuries you may suffer during the BODYSHRED™ Certification Workshop, you will be provided a waiver prior to the workshop.
2.3. At the end of the BODYSHRED™ Certification Workshop you will take a practical examination so that you may demonstrate your ability to instruct clients in the method. If you successfully complete the practical exam, you will receive a notification in your online dashboard with a link to an online written examination. You must complete the written exam on your own. If you answer at least 80% of the exam questions correctly and satisfy the other requirements in this Section 2 you will have successfully completed the Certification Program and you will receive the following:
- Certificate of Completion
- Your Continuing Education Units (AFAA-7.5, NASM-.8, ACE-.8 and NESTA-.5)
- Proprietary BODYSHRED™ Class Timer App
- Access to the BODYSHRED™ Instructor network, SHREDNET™, at the currently applicable monthly subscription fee
- Use of the BODYSHRED™ logo on your class schedules (subject to the terms and conditions on proper trademark use as set forth in in this Agreement, on the jillianmichaelsbodyshred.com website, and on any other Trademark Use Guidelines issued by EM FITNESS, LLC from time to time)
- Certification to teach the JILLIAN MICHAELS BODYSHRED™ program for a period of one year or, if you subscribe to SHREDNET™, for the duration of your membership therein, whichever period is longer.
2.4. In the event you do not pass the practical exam the day of the BODYSHRED™ Certification Workshop, you will not be permitted to take the written exam and will not be certified to teach the JILLIAN MICHAELS BODYSHRED™ program. Until you pass the practical exam and complete all other necessary requirements under this Agreement to become a BODYSHRED™ instructor, you will not be granted any of the rights of a BODYSHRED™ instructor under this Agreement, including the instructor certification, the right to teach BODYSHRED™ classes, intellectual property license rights or otherwise. However, you will have one option to try to pass the practical exam again:
- Option 1: You may attend an entire BODYSHRED™ Certification Workshop and retake the practical exam for the discounted fee of $99 (plus any applicable taxes); at that time you will be eligible to take the written exam
In the event you do not pass the written exam with the required score of at least 80% within two weeks of receiving access to the online exam, you will not be certified to teach the JILLIAN MICHAELS BODYSHRED™ program. Until you pass the written exam and complete all other necessary requirements under this Agreement to become a BODYSHRED™ instructor, you will not be granted any of the rights of a BODYSHRED™ instructor under this Agreement, including the instructor certification, the right to teach BODYSHRED™ classes, intellectual property license rights or otherwise. However, you will have one option to try again:
- Option 1: You may attend an entire BODYSHRED™ Certification Workshop and retake the written exam for the discounted fee of $99 (plus any applicable taxes)
2.5. You may cancel or reschedule your BODYSHRED™ Certification Workshop by contacting email@example.com subject to the following terms and conditions:
- If you register for a Certification Workshop at least twenty-one (21) days in advance of the workshop date, you will receive a complete refund of the Certification Workshop cost if you cancel within seventy-two (72) hours after registering. Any cancellation following such seventy-two (72) hours will result in no refund. In such case, you may reschedule for a different Certification Workshop within one (1) year of the originally scheduled Certification Workshop, subject to availability, for an additional fee of $25 plus applicable taxes.
- If you register for a Certification Workshop later than twenty-one (21) days in advance of the workshop date, there will be no refund of the Certification Workshop cost if you cancel at any time. In such case, you may reschedule for a different Certification Workshop within one (1) year of the originally scheduled Certification Workshop, subject to availability, for an additional fee of $25 plus applicable taxes.
- If you fail to attend your scheduled Certification Workshop, there will be no refund of the Certification Workshop cost. In such case, you may reschedule for a different Certification Workshop within one (1) year of the originally scheduled Certification Workshop, subject to availability, for an additional fee of $50 plus applicable taxes.
2.6. We will make commercially reasonable efforts to conduct all Certification Workshops as scheduled. However, we may postpone, move, or reschedule a Certification Workshop in our sole discretion in cases of low enrollment, inclement weather, staffing issues, or other unforeseen circumstances. If we must cancel and/or reschedule a Certification Workshop, we will communicate the change to you and provide reasonable assistance in rescheduling, but we cannot be responsible for any lost travel, accommodation, or other expenses. No rescheduling fees apply to schedule changes initiated by us.
- Term; Maintenance of BODYSHRED™ Instructor Status
3.1. Your certification is valid for a period of one (1) year from the date of your completion of all steps required to become a BODYSHRED™ instructor, subject to early termination under the terms of this Agreement. If you are enrolled in the SHREDNET™ program your certification will remain valid for the duration of your membership, subject to early termination under the terms of this Agreement.
3.2. If you are not a SHREDNET™ member, to remain certified you must retake the Certification Workshop for the then-current price on an annual basis, which will serve to satisfy the continuing education requirement and renewal fee for being a BODYSHRED™ instructor. We reserve the right to, in our sole discretion: (a) modify the term of certification, (b) define or modify the continuing education requirement, (c) increase or decrease the renewal fee, and/or (d) determine whether participation in the SHREDNET™ program satisfies all or any part of the continuing education requirement or renewal fee. Any changes or modifications to the continuing education or renewal fee requirements or otherwise made pursuant to this Section 3.2 will be posted here at https://jillianmichaelsbodyshred.com/bodyshred-certification-terms-and-c... and will be binding upon posting. You are expected to review the terms and conditions set forth here at https://jillianmichaelsbodyshred.com/bodyshred-certification-terms-and-c... from time to time so that you are aware of any changes.
3.4. Upon termination or revocation of your certified status for any reason, you must immediately cease all use of the BODYSHRED™ name and any other trademarks or other proprietary materials we may have furnished or authorized you to use, return all proprietary materials, including, but not limited to, the proprietary BODYSHRED™ Manual, and you must cease offering BODYSHRED™ classes and referring to yourself in any manner as BODYSHRED™ certified.
- Intellectual Property License
4.1. Ownership. You acknowledge and agree that we are and at all times will remain the sole owner of (a) the trademarks JILLIAN MICHAELS BODYSHRED™, BODYSHRED™, SHREDNET™, and all other trademarks, trade names, trade dress, logos, designs, inventions, patents, original works of authorship and other copyright-protected materials, trade secrets, methods and processes, concepts, ideas, know-how, and other intellectual property or proprietary information relating to the BODYSHRED™ training method (“BODYSHRED™ Intellectual Property”); and (b) all advertisements, promotional or marketing materials, still and moving images and other recorded material (including digital and other forms of material), music, text, prints, packaging, and any other materials we use or furnish in connection with our business (“BODYSHRED™ Materials”). Any and all use by you of the BODYSHRED™ Intellectual Property and/or Materials shall inure to our benefit, and nothing in this Agreement shall be construed as a transfer or assignment of any rights, title, or interest to you in any such BODYSHRED™ Intellectual Property or Materials.
4.2. License. During the time your BODYSHRED™ certification status remains in effect under this Agreement, we grant to you a personal, non-transferable, revocable, limited, non-exclusive, non-sublicensable license, without warranty, to use the items of BODYSHRED™ Intellectual Property and BODYSHRED™ Materials we make available to you, solely in the form and manner provided to you, for your own personal use to communicate to the public your status as a certified BODYSHRED™ instructor in the United States. No other use is authorized. Without limiting the foregoing, you have no right to and may not “certify” others as BODYSHRED™ instructors. Except for materials provided to you pursuant to the SHREDNET™ Program, you may only use the JILLIAN MICHAELS BODYSHRED™ Logo on your class schedules. You may not use the logo on any other printed or online marketing materials that are not supplied to you by us.
4.3. Prior Approval. All use of the BODYSHRED™ Intellectual Property and/or Materials is subject to our prior consent and approval, which may be withheld or revoked at any time in our discretion. Any unauthorized or non-approved use of the BODYSHRED™ Intellectual Property or Materials is grounds for immediate revocation of your status as a certified BODYSHRED™ instructor and termination of any rights you may have under this Agreement. From time to time we may provide general instructions for pre-approved forms of use. When using any BODYSHRED™ Intellectual Property or Materials you will include all appropriate copyright and/or trademark notices as instructed by us. If no specific instructions are given, the following general notice instructions apply in any authorized materials you produce:
Copyright © 2016 EM FITNESS, LLC. All Rights Reserved. BODYSHRED™, JILLIAN MICHAELS BODYSHRED™, and SHREDNET™ are trademarks of EM FITNESS, LLC, used under license.
4.4. No changes; proper usage. You agree to use the BODYSHRED™ Intellectual Property and Materials only in the form and manner and for the purposes authorized by us. You agree not to copy, redistribute, create derivative works from, sell or otherwise use the BODYSHRED™ Intellectual Property and Materials except as set forth herein. You shall not change the form or content of any such items without our express prior written approval. Further, you will follow any and all usage guidelines we may furnish from time to time. Without in any way limiting the generality of the foregoing restrictions, your use of the BODYSHRED™ Intellectual Property and Materials shall be subject to the following restrictions:
4.4.1. No registration. You agree not to apply for, register or attempt to register BODYSHRED™ or any other BODYSHRED™ Intellectual Property, or any confusingly similar terms, for any purpose, including without limitation trademarks, trade names, service marks, brands, logos, copyrights, or other identifiers of source or forms of intellectual property anywhere in the world.
4.4.2. Internet; Telecommunications. You will not use BODYSHRED™ or any confusingly similar term as a domain name (or part of a domain name), or for search engine optimization (SEO) or search engine marketing (SEM), as or in any account name, user ID or other handle within any blogs, social networking websites, or any “posting” sites including (for example only) Facebook, YouTube, MySpace, Twitter, etc., or as part of a name-based phone number, such as 1-800-BODYSHRED™ anywhere in the world.
4.4.3. No License to other Materials. Other than the BODYSHRED™ Materials we furnish to you with express permission for you to use them, you may not use any content from our websites, videos, advertising, packaging, publications, or any other source, without our express prior written permission.
4.4.4. Use Only for BODYSHRED™ Instruction. You must not use any BODYSHRED™ Intellectual Property or Materials to promote or describe any other forms or methods of training/instruction, or offer any third-party products or services under the BODYSHRED™ name, logo or other BODYSHRED™ Intellectual Property. Using your BODYSHRED™ certified status or any BODYSHRED™ trademarks or other Intellectual Property to advertise, promote or sell any non-BODYSHRED™ products or services is prohibited.
4.5. Protection of BODYSHRED™ Intellectual Property and Materials. You will notify us if you become aware of any other person using any BODYSHRED™ Intellectual Property or Materials improperly or without our approval, and you will cooperate with us reasonably in any legal action we may undertake to protect our rights relating to the BODYSHRED™ Intellectual Property. We will be entitled to the entirety of any damages, costs, or fees recovered in a legal action.
4.6. Recording and Use of Video. You agree that you will not:
(a) videotape or otherwise record more than five (5) minute segments of any BODYSHRED™-based workouts and/or any classes or instruction you conduct;
(b) publish or display for free more than five (5) minutes of any videotaped or recorded BODYSHRED™-based workouts and/or any classes or instruction you conduct, whether online or in any other medium; provided, however, that any video or recorded segments you publish or display may not include footage or recordings of instruction by you; or
(c) publish or display for payment any videotaped or recorded segments of any BODYSHRED™-based workouts and/or any classes or instruction you conduct, whether online or in any other medium.
4.7. Quality Control. You acknowledge and agree that you must conduct all BODYSHRED™ instruction in a professional manner, consistent with the highest standards for personal fitness instruction, including appropriate attire and conduct. Without limiting the foregoing, you agree that all services and activities you engage in or offer in connection with any BODYSHRED™ Intellectual Property are subject to our approval for quality, and you agree to cooperate with us in facilitating our control over the nature and quality of your marketing and services using any BODYSHRED™ Intellectual Property, to permit observation of your instruction, to promptly comply with all instructions from us, and to supply us with evidence confirming compliance with this Agreement upon request.
4.8. Appropriate Conduct. You acknowledge that you are not our employee or agent, and do not have authority to enter into any legal agreements or bind us in any way. Nevertheless, you understand that, as a licensee of the BODYSHRED™ Intellectual Property, you represent our brand to the public. Accordingly, you agree to act in a legal, professional, non-detrimental, non-disruptive, and appropriate manner at all times. Without limitation, this means you will not act in any lewd, sexist, racist, discriminatory, off-color, illegal, or other inappropriate or offensive manner, or in any manner that diminishes the value of the BODYSHRED™ Intellectual Property or associated goodwill, or the BODYSHRED™ Materials. We reserve the right to determine, in our sole discretion, what types of conduct are detrimental, disruptive or inappropriate for our brand and public image. This Agreement may be terminated immediately by us for any inappropriate conduct by you.
- Conduct of Certified BODYSHRED™ Instruction/Training
5.1. Instruction. Your limited license permits you to teach live BODYSHRED™ exercise classes only, subject to compliance with all the terms of this Agreement, including but not limited to maintaining your separate trainer certification from a national fitness association and all required insurance.
5.2. Format of Instruction. In your BODYSHRED™ Certification Workshop you will learn how to conduct a BODYSHRED™ class. We urge you to adhere to the overall principles and structure of the BODYSHRED™ workouts in teaching your own classes.
5.4. Music. You may use the music mix provided to you pursuant to Section 2.3 only in connection with conducting BODYSHRED™ classes. Any other use of the music mix exceeds the scope of your license and may constitute copyright infringement. You may receive additional music via the SHREDNET™ program. Such additional music will be provided under the same terms and conditions unless otherwise stated by us at the time of delivery of such additional music.
5.5. Merchandise. You may not sell your own merchandise, or any third-party merchandise in connection with your activities as a BODYSHRED™ instructor.
5.6. Compliance with Laws. You are responsible to comply with all applicable laws and regulations for the operation of your business, including but not limited to any licensing, zoning or other requirements, as well as laws and regulations governing advertising and marketing, including but not limited to electronic mail or other solicitation, communications to mobile devices (e.g., calling, SMS or “texting”), telephone and faxing, privacy, and collection, use or dissemination of personal or other data.
5.7. Insurance and Releases. As a condition of holding yourself out to the public as a certified BODYSHRED™ instructor, you must have a valid policy of liability insurance that covers your activities and names Jillian Michaels, EM Fitness, LLC, and Empowered Media, LLC as additional insureds regarding those activities. Failure to carry such insurance is grounds for immediate termination of this Agreement and your certification. In addition, you must require each person who takes part in any BODYSHRED™ instruction offered by you to sign a liability waiver that includes a waiver of any liability or claims against Jillian Michaels, EM Fitness, LLC, and Empowered Media, LLC.
5.8. Integrity of BODYSHRED™ Instruction. Any instruction you give in connection with the BODYSHRED™ name of BODYSHRED™ Intellectual Property or Materials must follow the overall structure, principles and training techniques embodied in the BODYSHRED™ system. You may not create any workouts or teach or instruct any classes that do not follow the BODYSHRED™ system, or that include or consist of BODYSHRED™ workouts combined with any other workout, exercise or fitness routine, whether from a third party or otherwise in any form that does not accurately represent the BODYSHRED™ system, as determined by us as licensor. Nor may you use any brand name or description for BODYSHRED™ classes or instruction other than BODYSHRED™. You may not promote your BODYSHRED™ workouts via flyers, posters, websites, etc. that also promote other workouts.
- Advertising & Marketing. Any advertising or marketing activities you conduct in connection with your BODYSHRED™ instructional services must follow the terms of this Agreement. Those activities must not be discourteous, illegal, offensive, deceptive, misleading, unethical or immoral. You are responsible for the accuracy, legality, and legitimacy of any and all content in your advertising, marketing and promotional materials. You agree not to change or modify any advertising, marketing or promotional materials provided to you by us for use in connection with your BODYSHRED™ instructional activities, including the BODYSHRED™ logo, or any other materials. Without limiting the generality of the foregoing, the following specific provisions also apply.
6.1. Use of Certified BODYSHRED™ Instructor Designation. During the term of this Agreement, as a certified BODYSHRED™ instructor, you may:
6.1.1. Use the BODYSHRED™ logo, but only in the form and format provided by us, and in all cases you must include the notice: “BODYSHRED™ is a trademark of EM Fitness, LLC.”
6.1.2. Use the term “BODYSHRED™” and “Certified BODYSHRED™ Instructor,” along with the notice: “BODYSHRED™ is atrademark of EM Fitness, LLC.” In addition, you may not use the term “BODYSHRED™” as a stand-alone word; it may only be used for descriptive purposes in combination with other words.
6.2. Advertising and Marketing Materials. All advertising, marketing, promotional, and other materials you use to communicate your services and status as a certified BODYSHRED™ instructor are subject to our approval, including but not limited to any websites or social media pages, all of which must comply with all applicable laws and regulations, as well as all terms of this Agreement, and must not infringe any intellectual property, personal, privacy, publicity, or other rights of any third party. Materials we furnish to you are deemed approved as long as they are used in substantially the form they were provided to you. Without limiting the foregoing, you may not do any of the following without our express prior written approval and permission:
6.2.1. Make any claims or statements (which include testimonials) as to therapeutic, curative, or diagnostic properties of BODYSHRED™ or any products or services offered by us, except those specific claims contained in official BODYSHRED™ Materials we furnish to you, which claims may only be repeated in exactly the same format as published by us, and must be republished completely, including any disclaimers, disclosures or other explanatory material. Specifically, you may not make any claim or statement that the BODYSHRED™ program can cure, treat, diagnose, mitigate, or prevent any conditions or diseases or achieve any guaranteed results.
6.2.2. Create or use, or assist or encourage any third party to create or use, any BODYSHRED™ Intellectual Property in connection with any products, including but not limited to apparel (including, for example, T-shirts, caps or other similar items), accessories, key chains, sports equipment, ingestible products, DVDs, or anything else.
6.2.3. Use the name, image or likeness of Jillian Michaels.
6.3. Use of Your Name, Image or Likeness. You grant us (including our parents, affiliates, subsidiaries, representatives and assigns, officers, employees, advertising and promotional companies, distributors, or any person(s) or corporation(s) acting with our permission or authority) a perpetual, irrevocable, royalty-free license throughout the universe to use, publish, reproduce, distribute, videotape, photograph, record, create derivative works of, and/or otherwise use your name, image, voice, statements and/or likeness in connection with any advertising, promotion, marketing, or other informational manner relating to the certified BODYSHRED™ instructor program, in any media now known or later devised, in such manner, for such purposes and with such frequency as we shall determine in our sole discretion without compensation or consideration to you, without attribution to you, and without further authorization by you. Such use may include, but is not limited to identifying you in published lists (including online) of certified BODYSHRED™ instructors, including your geographic location and status (including whether your certification remains in good standing under this Agreement). You agree to execute any and all documents necessary for us to exploit your grant of rights under this paragraph. You agree to waive any artistic or moral rights in and to any materials created or used by us under this section.
6.4. Non-Disparagement. You agree not to make negative comments or remarks in any medium (oral, online, written, or while providing instruction or training) about the BODYSHRED™ program, Jillian Michaels, us, or any personnel of the foregoing (directors, owners, employees, consultants, partners, etc.).
6.5. News Coverage. You may promote your BODYSHRED™ instructor status and activity through live news coverage or print news media, such as newspapers, television, radio and magazines, by any mainstream news organization or print publisher. In the event you do so, however, you must inform the news organization or publisher of our guidelines for proper trademark usage. For any live news coverage, such coverage shall not include more than thirty (30 seconds of BODYSHRED™ routines or techniques without our prior written consent. If you are aware of expected coverage in advance, you must notify us of such coverage by email to firstname.lastname@example.org. If you are not aware in advance, you must notify us promptly after the coverage and, when possible, provide us with a copy of the article or the footage for such news coverage.
- SHREDNET™ Network
7.1. Certified instructors may enroll in our monthly support program, the SHREDNET™ Network. The SHREDNET™ Network is available for a monthly subscription fee and provides subscribers with access to additional marketing materials, music recordings, business advice, instructional tips, and other materials. More details on the SHREDNET™ Network are available at https://jillianmichaelsbodyshred.com/become-a-certified-bodyshred-instructor, including a list of subscriber benefits. All materials supplied to you via the SHREDNET™ program are covered by the terms of this Agreement and any additional terms we may supply in connection with a particular item or items provided via the SHREDNET™ Network.
7.2. You agree that materials received by you by virtue of your enrollment in the SHREDNET™ Network are exclusively for your benefit and use. You shall not copy, duplicate, sell, distribute or otherwise disseminate any materials you obtain by virtue of becoming a SHREDNET™ member. In the event of termination of this Agreement for any reason, you agree to retain your SHREDNET™ materials, destroy them or return them to us, and not to sell or give them away or to use them for any other purpose except personal, non-commercial use.
7.3. You agree to comply with any licensing or use requirements we may post from time to time at https://jillianmichaelsbodyshred.com/bodyshred-certification-terms-and-conditions relating to materials provided to you through your SHREDNET™ membership.
8.1. Relationship of the Parties. Your participation in the BODYSHRED™ certification program does not establish an employer/employee, partnership, franchise, agency, joint venture or other similar relationship between you and us. Neither party shall have, or represent itself as having, the authority to bind or commit the other party in any way, or to incur any liability in the name of or on behalf of the other party. You agree not to make any statements or take any actions that may confuse or mislead any person regarding the nature of the relationship between you and us. Your status as a certified BODYSHRED™ instructor is personal to you and cannot be transferred, sublicensed or otherwise made available for use by anyone else.
8.2. No Guarantee. We do not guarantee any level of success or income that you may generate by becoming a certified BODYSHRED™ instructor.
8.3. Liability Release. You understand and acknowledge that, as with any exercise program, participation in the BODYSHRED™ Certification Program will include physical activity and use of equipment, and that there are certain risks associated with those activities and equipment, including risk of serious injury. You expressly and voluntarily assume all risk and, to the extent permitted by law, waive any and all actual or potential claims against Jillian Michaels, Empowered Media, LLC, and EM Fitness, LLC (including each of our respective parents, affiliates, subsidiaries, representatives and assigns, employees, officers, owners, attorneys or any person(s) or corporation(s) acting with its permission or authority) arising from or related to your participation in the BODYSHRED™ Certification Program, including the associated physical activity and equipment.
8.4. Indemnification. You agree to indemnify and hold harmless Jillian Michaels, Empowered Media, LLC, and EM Fitness, LLC, and our respective parents, affiliates, subsidiaries, representatives and assigns, employees, officers, owners, attorneys or any person(s) or companies acting with any of our permission or authority, from any loss or damages (including attorneys’ fees) that we may suffer as a result of any claims, demands, actions, or other proceedings made or instituted by a third party against any of us that arises from any breach by you of the terms of this Agreement, or from your negligence, willful misconduct, or any other act or omission of yours, or from any of your advertising or promotional materials or activities.
8.5. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, (a) NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL EXCEED THE TOTAL AMOUNT PAID BY YOU TO US TO BECOME AND REMAIN A CERTIFIED BODYSHRED™ INSTRUCTOR, AND (b) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES , OR LOST PROFITS OR REVENUES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PARAGRAPH LIMITS ANY DUTY OF INDEMNIFICATION EXPRESSLY SET FORTH IN SECTION 8.4, OR ANYWHERE ELSE IN THIS AGREEMENT, OR YOUR LIABILITY FOR ANY INJURY CAUSED TO US BY YOUR BREACH OF ANY PROVISION HEREIN RELATING TO THE BODYSHRED™ INTELLECTUAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, SECTION 4 HEREOF.
8.6. Disclaimers. The BODYSHRED™ Intellectual Property, the BODYSHRED™ Materials, and any products sold or provided through the SHREDNET™ Network are all provided AS IS. We make no representations or warranties, express or implied, to you with respect to the BODYSHRED™ Intellectual Property, the BODYSHRED™ Materials, or any products sold or provided through the SHREDNET™ Network (including, without limitation, warranties of fitness, merchantability, title, non-infringement) or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, we make no representation that the operation of our website will be uninterrupted or error-free. As such, we shall not be liable for the consequences of any interruptions or errors, although we agree to make commercially reasonable efforts to correct errors or interruptions.
8.7. Notices. Any notice, request, demand or other communication given or made under this Agreement shall be in writing and shall be deemed received (i) on the same day if delivered in person, by same-day courier to the signatory or another person known to the parties to receive communications regarding the Agreement, (ii) on the next day if delivered by overnight mail or courier, or (iii) three (3) business days after the date of deposit in U.S. mail for delivery in the U.S. A party may change its address for receiving notice by giving written notice per this paragraph. Notices to us must be made in person or by mail or courier in a manner that permits the tracking and delivery of the notice to EM Fitness, LLC c/o Empowered Media, LLC, 3050 Biscayne Boulevard, Suite 904E, Miami, FL 33137, Attention: Jillian Michaels BODYSHRED™. Notices to us shall only be effective upon receipt and if receipt can be established. Notices to you may be made to your physical or electronic address via email as most recently recorded in our system by you. You agree to keep your electronic mail current and that notice by us to that electronic mail address is deemed received the day it is sent. Notice to you shall be effective if dispatched according to contact information most recently provided by you and you waive any defense based on not receiving that notice if your contact information is not current.
8.8. Assignment. You may not assign or delegate any rights or obligations under this Agreement. We may assign, transfer, sub-license, or sub-contract any of our rights or obligations under this Agreement at our sole discretion.
8.9. Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason invalid or unenforceable by a court of competent jurisdiction or other tribunal, then that provision shall be interpreted in a manner to give that provision as much effect as the law permits or severed from this Agreement, neither of which shall affect the validity and enforceability of any remaining provisions.
8.10. No Waiver. Any waiver of any provision of this Agreement or of a party’s rights or remedies under this Agreement must be in writing signed by the party against which the waiver is sought to be enforced. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time is not a waiver of that party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice that party’s right to take subsequent action. Waiver of any provision shall not be deemed to waive a subsequent violation of the same provision or violation of any other provision. Any delay by us in exercising any right or remedy under this Agreement shall not operate as waiver of that right or remedy or affect its ability to subsequently exercise that right or remedy.
8.11. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Florida (without regard to the choice of law or conflicts of law principles). In the event of a dispute arising out of or in any way relating to this Agreement or the certified BODYSHRED™ instructor program, jurisdiction and venue shall be proper exclusively in the state or federal courts of the State of Florida, Miami-Dade County. You hereby irrevocably waive any objections or defenses based on lack of personal jurisdiction, improper venue, or forum non-conveniens. TO THE EXTENT ALLOWED BY LAW, THE PARTIES WAIVE THEIR RIGHT(S) TO A JURY TRIAL IN ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE CERTIFIED BODYSHRED™ INSTRUCTOR PROGRAM. The parties further agree that any claims, disputes, or actions of any kind shall be resolved individually and without resort to any form of class action.
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ISSUED: March 1, 2013