Last Updated: February 7, 2022

PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND Marcella Cox Marriage & Family Therapy Inc. DBA Kindful Body (“Kindful Body,” “WE,” OR “US”).

This Agreement only governs your use of the Website, not the provision of any services. Prior to providing you access and use of services, Kindful Body will ask you to read and agree to certain supplemental agreement(s). The terms of those supplemental agreement(s) will govern your access and use of Kindful Body’s services. You understand that you may not access or use any services until you agree to the terms of such supplemental agreement(s). Please do not use the Website to send any sensitive or confidential information to Kindful Body, including any personal health information.

If you think you have a medical or psychiatric emergency, call your doctor or 911 immediately.

SECTION 10 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 10 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

By accessing or using website, features, content, and any applications offered by the Kindful Body and found at www.kindfulbody.com (collectively, the “Website”), or by clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and ​​our Privacy Policy, found at https://www.kindfulbody.com/privacy-policy, and any future amendments and additions to this Agreement as published through the Website; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; (3) you reside in the United States or any of its territories or possessions; and (4) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Website. Except as otherwise provided herein, if you do not agree to be bound by this Agreement or you do not meet the requirements above, you may not access or use the Website.

Subject to Section 10.9 of this Agreement, Kindful Body reserves the right to modify this Agreement or its policies relating to the Website at any time, effective upon posting of an updated version of this Agreement on the applicable Website. You should regularly review this Agreement, as your continued use of the Website after any such changes constitutes your agreement to such changes.

1. No Advice. The information contained on the Website is given for general information and general interest purposes only. While Kindful Body tries to keep the information accurate and up to date, Kindful Body cannot be responsible for any inaccuracies in the information. We do not warrant the accuracy, completeness or usefulness of the information found on our Website. As a result, you should not rely on this information for making decisions, and we recommend that you take further advice and/or seek further guidance before taking any action based on the information contained on the Website. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

2. Ownership of and License to Use Kindful Body Properties

2.1 Use of the Website.  Kindful Body owns all rights, title and interest in the Website. The Website is protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Kindful Body grants you a limited license to use the Website solely for your personal non-commercial purposes. Any future release, update or other addition to the Website shall be subject to this Agreement. Kindful Body and its licensors reserve all rights not granted in this Agreement. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

●     Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

●     You may store files that are automatically cached by your web browser for display enhancement purposes.

●     You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.

You must not:

●     Modify copies of any materials from this Website.

●     Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.

●     Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this Website.

●     Decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Website content, or otherwise distribute in any way the content other than as specifically permitted in this Agreement.

If you wish to make any use of material on the Website other than that set out in this section, please address your request to: connect@kindfulbody.com.

2.2 Trademarks. Kindful Body’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Website are the trademarks of Kindful Body and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, except in a manner constituting “fair use” under applicable law.

3. Restrictions on Use of Website. The rights granted to you in this Agreement are subject to the following restrictions:

A.   you shall not use the Website in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);

B.   you shall not use the Website in any manner to impersonate or attempt to impersonate Kindful Body, a Kindful Body employee, or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).

C.   you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website;

D.   you shall not frame or use framing techniques to enclose any trademark, logo or Website (including images, text, page layout or form);

E.    you shall not use any metatags or other “hidden text” using Kindful Body’s name or trademarks;

F.    you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website except to the extent the foregoing restrictions are expressly prohibited by applicable law;

G.  you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);

H.   you shall not access the Website to build a similar or competitive website, application or service;

I.      except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;

J.    you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website;

K.   you shall not interfere with or attempt to interfere with the proper functioning of the Website or use the Website in any way not expressly permitted by this Agreement;

L.    you shall not attempt to harm the Website, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Website, or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Website; and/or

M.  you shall not otherwise attempt to interfere with the proper working of the Website

Any unauthorized use of the Website terminates the licenses granted by Kindful Body pursuant to this Agreement.

4. Third-Party Links. The Website may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Website. Kindful Body does not control and is not responsible for Third-Party Links. Kindful Body provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

5. Indemnification. You agree to indemnify and hold Kindful Body and the officers, directors and employees (collectively, the “Kindful Body Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) your misuse of the Website; (b) your violation of this Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Kindful Body reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kindful Body in asserting any available defenses. You agree that the provisions in this section will survive any termination of this Agreement or your access to the Website.

6. Disclaimer of Warranties and Conditions. You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data. Kindful Body has a variety of safeguards – technical, administrative, and physical – in place to help protect against unauthorized access to, use, or disclosure of user information. However, no data transmission over the Internet can be guaranteed to be 100% safe. Thus, we cannot warrant that your information will be absolutely secure. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE KINDFUL BODY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. KINDFUL BODY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE FEDERAL OR STATE LAW.

7. Limitation of Liability

7.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE KINDFUL BODY PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT KINDFUL BODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Cap on Liability and Limitation on Time to File Claims. UNDER NO CIRCUMSTANCES WILL THE KINDFUL BODY PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100) IN THE TOTAL AGGREGATE AMOUNT. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

7.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KINDFUL BODY AND YOU.

7.4 Cooperation with Law Enforcement and Regulatory Bodies. We have the right to fully cooperate with any law enforcement authorities, regulatory agencies, or court order requesting or directing us to disclose the identity or other information of anyone sharing information with us through the Website. YOU WAIVE AND HOLD HARMLESS KINDFUL BODY AND ITS AFFILIATES, AGENTS, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY KINDFUL BODY AND/OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER KINDFUL BODY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

8. Termination. At its sole discretion, Kindful Body may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Kindful Body reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress.

9. International Users. The Website is controlled and offered by Kindful Body from its facilities in the United States of America. We provide this Website for use only by persons located in the United States, unless otherwise specifically indicated. Kindful Body makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other countries do so at their own volition and are responsible for compliance with local law.

10. Dispute Resolution.

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Kindful Body and limits the manner in which you can seek relief from us.

10.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Website or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Kindful Body may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

10.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Kindful Body, 1303 San Carlos Ave, San Carlos, CA 94070. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

10.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Kindful Body. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

10.4 Waiver of Jury Trial. YOU AND KINDFUL BODY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AND INTELLECTUAL PROPERTY CLAIMS AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Kindful Body are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

10.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 10.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and brought in the state or federal courts located in the State of California in accordance with Section 11.3. All other claims shall be arbitrated.

10.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Kindful Body, 1303 San Carlos Ave., San Carlos, CA 94070 or email to connect@kindfulbody.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.

10.7 Severability. Except as provided in Section 10.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

10.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Kindful Body.

10.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Kindful Body makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Kindful Body at the following address: Kindful Body, 1303 San Carlos Ave., San Carlos, CA 94070.

11. General Provisions

11.1 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kindful Body’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

11.2 Force Majeure. Kindful Body shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, civil unrest, epidemic, pandemic, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

11.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Kindful Body agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in San Mateo County, California or federal courts located in the Northern District of California.

11.4 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

11.5 Notice.  You may give notice to Kindful Body at the following address: Kindful Body, 2211 Post Street, Suite 300, San Francisco, CA 94115. Such notice shall be deemed given when received by Kindful Body by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

11.6 Contact Information. If you would like to contact us with respect to the Website, please email connect@kindfulbody.com.

11.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.8 Severability. Subject to Sections 10.5 and 10.7, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

11.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.