Terms and Conditions

Terms & Conditions of Use

1. Terms of Use. By using the Iamtotally website (hereinafter referred to as the “Site”), you (A) acknowledge that you have read and understand this agreement; (B) represent that you are the age of legal majority in your place of residence; and (C) understand that you are legally bound by this agreement.

high-quality video of fitness classes and other programming related to pregnancy, health and wellness, as well as  to provide information about fitness, health and wellness in the prenatal and postpartum phases and to unite women around the world who are interested in the aforementioned topics.

The Site is owned by Totali, LLC (“Totali,” “we” or “us”), and is intended for users 18 years of age or older. Please read these Terms and Conditions of Use (“Terms and Conditions”) carefully. These Terms and Conditions represent the entire understanding between Totali LLC and you regarding your use of this Site in conjunction with other mentioned documents and supersede any prior statements or representations. Access to and use of this Site is subject to all applicable laws and regulations. To the extent that access, or use of this Site would be deemed illegal by governing law, such access or use is prohibited.

BY VISITING ANY AREA ON THE SITE, OR IF YOU ARE SIGNING UP FOR AN ACCOUNT THEN BY
CLICKING “I HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF USE,”
YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE, DO NOT CLICK
ON THE BUTTON, OPEN AN ACCOUNT WITH IAMTOTALLY,OR OTHERWISE USE THE SITE.

As long as you comply with these Terms and Conditions and any modifications hereto as permitted below, Totali LLC grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited privilege to enter and use the Site.

 

2. Use of Materials. Materials on this Site (including those streamed or downloaded from the Site), including but not limited to software, images, text, data, artwork, graphics, music, video and audio clips, information, suggestions, guidance, user interfaces, logos and trademarks, and other material provided through the Site, along with the overall “look and feel” of the Site (collectively referred to as the “Material”), are owned by Totali LLC (or used by us under license) and are protected under copyright, trademark, patent and various intellectual property laws. Except as otherwise indicated on this Site, copying, reproduction, uploading, downloading, transmitting or any other use of the Material, in whole or part, without the express written permission of Totali LLC, is prohibited. Your use hereunder does not grant you any ownership rights to such Material and Totali LLC, and its licensors reserve all rights to such Material. You may not reverse engineer, decompile, disassemble, or modify any Material, or copy, reproduce, download, transmit and/or print substantial portions of this Site or the Material contained hereon without the express written permission of Totali LLC. Any unauthorized use of this Site and/or the Material may subject you to criminal prosecution and/or civil liability under applicable law.

 
3. Health & Safety Disclaimer. Site Content and Materials are Not Medical Advice.
You acknowledge and agree that all medically-related Site Materials and Content:
are provided for informational purposes only and are not appropriate for or applicable to everyone;
do not constitute medical advice or diagnosis or treatment of any particular condition;
do not create a doctor-patient relationship; and
do not constitute a recommendation or endorsement of any specific opinion, procedure, product, provider, test or other information that may be mentioned in the Site.
Please always seek the advice of your physician or other qualified health provider with any question you may have regarding a medical condition.
Always seek the advice of your physician or other qualified health professional before starting or changing any exercise program or making a lifestyle change. This is particularly important if you are overweight, pregnant, nursing, regularly taking medications, or have any existing medical conditions. Consult your physician or midwife before beginning this or any exercise program during or after pregnancy to be sure that you do not unknowingly have any condition that may contraindicate certain types of exercise. Do not begin this or any exercise program without your healthcare providers consent.  If you are concerned that particular exercises in this or any other exercise program is appropriate for you, do not attempt them until you have cleared it with your healthcare provider. The material on this Site is not intended to make medical diagnosis or provide medical advice, and therefore should not be substituted for medical consultation.  Do not delay seeking medical treatment or advice or disregard medical advice based on any information provided on this Site.

Totali LLC, features demanding exercise. Be sure you choose classes at your energy and fitness level. Do the exercises in an unobstructed space with adequate ventilation and wearing appropriate clothing that does not restrict movement. Drink plenty of water throughout the program to stay adequately hydrated. Take the time to do warm up and cool down activities with every workout to help avoid muscle soreness and injury.
According to the American College of Obstetrics and Gynecology (ACOG), the following conditions are Absolute Contraindications to Exercise During Pregnancy: Preterm Labor, Ruptured Membranes, Persistent Bleeding in 2nd or 3rd Trimester, Placenta Previa after 26 weeks gestation, Incompetent Cervix or Cerclage, Preeclampsia/ Pregnancy Induced Hypertension, Hemodynamically Significant Heart Disease, High Risk Multiple Gestation Pregnancy, Restrictive Lung Disease. Exercise should be avoided altogether in the presence of the aforementioned conditions. The ACOG also advises that you stop exercising while pregnant and seek medical advice immediately if you have or develop the following conditions: Preterm Labor, Vaginal Bleeding, Amniotic Fluid Leakage, Decreased Fetal Movement, Pain or swelling in the Calf Muscles, Shortness of Breath Prior to Exertion, Dizziness, Headache, Chest Pain, and Muscle Weakness.

By participating in any Totali LLC programming, you acknowledge that you are free from the aforementioned conditions and have received approval from your healthcare provider to participate in the Totali LLC courses and classes programs.
Whether you are in the prenatal, postpartum or post-postnatal phase, listen to your body at all times and exercise within your limits.  Stop exercising and consult your healthcare provider if you experience any pain or unusual discomfort, dizziness or light-headedness, nausea, headache or other unusual symptoms. Since the programming featured on Totali LLC, cannot monitor your condition during your exercises, you are responsible for exercising at your level, monitoring your own body response to the activity, and seeking medical advice as necessary.
The creators, instructors, producers, and distributors of these programs are not responsible for any injuries that may occur while participating in these programs. By continuing with these programs you accept that you have read, understand and agree to follow these instructions and are participating at your own risk.

 
4. Your Account; Registration. Before you make any purchases for any programs on the Site, you must first establish a customer account (“Account”). You are responsible for maintaining the confidentiality of your Account information, including your password, and for all activity that occurs under your Account. You agree to notify Totali LLC, immediately of any unauthorized use of your Account or password, or any other breach of security. You may not use anyone else’s password or customer account at any time. You may not attempt to gain unauthorized access to the Site. Should you attempt to do so, assist others in making such attempts, or distribute instructions, software or tools for that purpose, then your Account will be terminated. You agree to provide us with accurate, current and complete information about yourself and your billing information as prompted by the registration process. You may update any of your Account information by clicking on the Personalize button and Settings icon and selecting the appropriate link. You may not use any automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, probe, test or monitor any portion of the Site or any Material, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Material, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or any of the systems or networks comprising or connected to the Site. You may not use the Site or Digital Content or Material in any manner that could damage, disable, overburden, or impair our servers or networks or interfere with any other party’s use and enjoyment of the Application. You may not attempt to gain unauthorized access to the Site, Digital Content, Material, user accounts, or computer systems or networks, through hacking, password mining or any other means.

You are responsible for any and all charges, fees and other costs related to your Mobile Device and Internet Usage.
Without limiting any of the foregoing, you agree that you shall not (and you agree not to allow any third party to):
copy, modify, adapt, translate, or reverse engineer any portion of the Site, Digital Content or Material;
remove any copyright, trademark or other proprietary rights notices contained in the Site, Digital Content or Material;
use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Site, Digital Content or Material;
reformat or frame any portion of the web pages that are part of the Site, Digital Content or Material;
create user accounts by automated means or under false or fraudulent pretenses; or
collect or store personal data about other users in connection with the prohibited activities described in this paragraph.
In addition to our rights in this Agreement, we may take any legal action and implement any technical remedies to prevent the violation of this provision and to enforce this Agreement.
You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a back up of all of your data and/or equipment, and to restrict access to your computer to avoid disclosure of such items.

You also agree that Totali LLC, may, in its sole discretion and without prior notice to you, terminate your access to the Site and your Account for any reason, including without limitation: (1) attempts to gain unauthorized access to the Site or assistance to others’ attempting to do so, (2) overcoming software security features limiting use of or protecting any Material, (3) discontinuance or material modification of the Site or any service offered on or through the Site, (4) violations of the Terms and Conditions, (5) failure to pay for subscriptions or purchases, (6) suspected or actual copyright infringement, (7) unexpected operational difficulties, or (8) requests by law enforcement or other government agencies. You agree that Totali LLC, will not be liable to you or to any third party for termination of your access to the Site.

 

5. Privacy; Personal Information. Please see Totali LLC’s Privacy Policy for information concerning the collection and use of Personally Identifiable Information from this Site. As more fully described in our Privacy Policy, you must disclose certain Personally Identifiable Information to register for your Account and purchase products or services from our Site. As a condition of registering with our Site or making any purchases of any products and/or services, you represent that you have first read our Privacy Policy and consent to the collection, use and disclosure of your Personally Identifiable Information and non-personally identifiable information as described in our Privacy Policy. Our Privacy Policy’s terms and conditions will change from time to time, and as a condition of browsing the Site, using any features or making any purchase, you agree that you will first review our Privacy Policy prior to making any initial or subsequent purchases. While Totali LLC, takes reasonable steps to safeguard and to prevent unauthorized access to your personal information, we cannot be responsible for the acts of those who gain unauthorized access, and we make no warranty, express, implied, or otherwise, that we will prevent unauthorized access to your private information.

IN NO EVENT SHALL TOTALI LLC, OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY’S UNAUTHORIZED ACCESS TO YOUR
PERSONAL INFORMATION, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON
CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO
REGARDLESS OF WHETHER TOTALI LLC WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT
DAMAGES WERE POSSIBLE.

 

6. Digital Content Streaming and License Restrictions. In addition to the requirements of Section 7 of these Terms and Conditions, you must meet the following requirement to stream any video programs, music, images, artwork, text, software and other copyrightable materials (Digital Content): (i) you must first be a registered user of this Site and in full compliance with this Terms of Use. All Digital Content Streaming is sublicensed to end users and not sold, notwithstanding use of the terms “sell,” “purchase,” “order,” or “buy” or similar terms on the Site or in these Terms and Conditions. Your Digital Content sublicense is nonexclusive, nontransferable, nonsublicensable and limited for use as permitted herein.

Standard Usage Rules. You may stream Digital Content as a single registered user. You may play the Digital Content an unlimited number of times. The foregoing are collectively referred to as the “Standard Usage Rules”, and together with any more restrictive usage rules that may be imposed by certain labels and licensors, the “Usage Rules”.
You may only stream the Digital Content as stated in the particular Usage Rules for that Digital Content, which Usage Rules are hereby incorporated by reference. No other streaming, downloads, transfers, copies or uses of Digital Content are permitted. All other rights are reserved. As a condition of purchasing each Digital Content, you represent to Totali LLC that you understand and agree to the uses associated with a particular Digital Content’s Usage Rules.

Approved Electronic Devices For Digital Downloads. The Digital Content is sublicensed for play only upon approved electronic devices. “Approved Electronic Devices” are subject to the Usage Rules above and include the following: (i) Computer, and (ii) lightweight devices that stream supported digital files, and play them back in digital form, but which are incapable of further transferring Digital Content (“Portable Devices”).

WITHOUT LIMITING ANY PROVISION HEREIN TOTALI LLC, MAKES NO WARRANTY THAT
ANY PARTICULAR DEVICE WILL BE COMPATIBLE OR FUNCTION WITH ANY DIGITAL STREAMING.

Prohibited Uses of Digital Streaming and License Restrictions. You may not reverse engineer, decompile, decode, disassemble, modify or disable any copy protection or use limitation systems associated with any of the Digital Content and Materials. You may not play and then redigitize any of the Digital Content or Materials, or upload those Digital Content or Materials to the Internet. You may not create any “derivative works” by altering any of the Digital Content or Materials. You may not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Digital Content or Materials or any features or functionality of the Site, to any third party for any reason, including use of the Digital Content or Materials in conjunction with any other third-party content (e.g., to provide sound for a film). You may not copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable of the Digital Content or Materials. You may not exploit any Digital Content or Materials for any commercial purposes. You may not remove, delete, alter or obscure any trademark or any copyright trademark, patent or other intellectual property or proprietary rights notice from the Site. You shall not remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security feature in or protecting the Site, Digital Content or Materials. Unauthorized distribution or use of the Digital Content or Materials may subject you to civil and/or criminal penalties as well as termination of your account and your access to the Site. You further agree to indemnify and hold harmless Totali LLC, for your failure to comply with this section.

Totali LLC, reserves the right to change at any time, without prior notice to you, the software required to download, transfer, copy and use or limit use of any of the Digital Content or Materials. The speed at which Digital Content or Materials can be streamed to your device depends in large part upon the bandwidth of the connection provided to you by your Internet Service Provider. You are responsible for all charges associated with use of your Internet Service.

7. Conditions of Sale and Payment Terms; Methods of Payment, Credit Card Terms and Taxes. To purchase any goods and/or services on our Site, you must (a) be at least eighteen (18) years of age or the applicable state age of majority, and (b) be a natural person (no corporations, partnerships or other legal entities). Prior to the purchase of any goods or services on the Site, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge your card. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience but within thirty (30) days of credit card authorization. Unless otherwise set forth on the applicable portion of the Site for particular products or services, all sales of products and services are final and all charges from those sales are nonrefundable. For any form of payment we offer or accept, you hereby agree to all restrictions, terms and conditions associated with such form of payment. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms and Conditions to determine your rights and liabilities as a cardholder.

YOU, AND NOT TOTALI LLC, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY.

You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Totali LLC, of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Totali LLC, does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Totali LLC, or its agents. You are responsible for paying any governmental taxes imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Totali LLC, shall automatically charge and withhold the applicable sales tax for orders to be delivered to addresses within Texas and any other states or localities that it deems is required.

 

8. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Totali LLC reserves the right at any time after receipt of your order to accept or decline your order for any reason. Totali LLC, further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Totali LLC, upon shipment of products or performance of services that you have ordered, or upon the completion of the license and delivery of Digital Content, as indicated by our servers. Title to goods and all risk of loss passes to you upon delivery to the common carrier. All orders placed over $1,000.00 (U.S.) must obtain pre-approval with an acceptable method of payment, as established by our credit and fraud avoidance department. We may require additional verifications or information before accepting any order.

 

9. No Responsibility To Sell Mispriced Products Or Services. Totali LLC, shall have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund, or containing any other incorrect information or typographical errors. Totali LLC, shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, Totali LLC, shall immediately issue a credit to your credit card account in the amount of the charge.

 

10. Modifications to Prices or Billing Terms. TOTALI LLC, RESERVES THE RIGHT, AT ANY TIME, TO
CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE
IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.

 

11. Links. This Site may contain links to other websites that are not controlled and/or maintained by Totali LLC. Access to and use of such other websites is at your own risk and subject to any terms, conditions and privacy policies that govern such websites, which may be different from those of Totali LLC, and/or which may provide their users with less security than this Site. By providing such links, Totali LLC, shall not be deemed to endorse, recommend, approve or guarantee any third parties or their services or products, or any facts, views, advice, information and/or products found on such websites. Totali LLC, is not responsible for the content contained on any such sites, or for the failure of any product or service offered for sale on any such sites or for any damages that may result therefrom. Copyrights in the materials or information on the linked sites are owned by other organizations.

 

12. User Submitted Content. On certain sections of this Site, you may be permitted to post comments, information, creative works (including but not limited to audio or audiovisual works) or other materials when you participate in discussion boards or other the interactive and community features of the Site (“User Content”). You acknowledge and agree that you are solely responsible for any User Content that you post. You further acknowledge and agree that Totali LLC, has no responsibility for, or ownership of, any User Content posted at this Site and will not be liable for any User Content that is in violation of these Terms and Conditions. With respect to all User Content that you post, you represent and warrant that: (i) the material is either fully original to you or that you have all necessary rights, licenses and permissions needed to post the material at this Site (including but not limited to all copyright and right of publicity/privacy rights), and to grant, and you hereby do grant, Totali LLC and all users of this Site a world-wide, irrevocable, perpetual, non-exclusive, royalty-free license that can be fully assigned and sub-licensed, to copy, publicly perform, digitally perform, publically display, distribute and use such User Content in connection with the use and promotion of the Site and to adapt, edit, translate, prepare derivative works of User Content or incorporate User Content into other works; (ii) such User Content will not infringe the rights of any person or entity, or violate any governmental rule, regulation statute or law, or the Terms and Conditions; (iii) no money will be owing to any party as a result of the posting of the User Content or its use in connection with this Site and/or the promotion thereof; (iv) you will be responsible for all User Content submitted through your email address, and for all purposes under these Terms and Conditions, all submissions from your email address shall be deemed to have been submitted by you.
Totali LLC has no control over, and does not endorse, any User Content and expressly disclaims any and all liability in connection with any User Content. However, in connection with User Content posted at this Site, in addition to all other rights it has under these Terms and Conditions and at law or in equity, Totali LLC reserves the right in its sole and absolute discretion, to: (i) remove without notice, or refuse to post in the first instance, any User Content; and/or (ii) revoke any user’s right to use this Site.
Any User Content sought to be posted at the Site must conform, in the sole and exclusive opinion of Totali LLC to the following rules and standards. It must: (i) conform to all applicable laws, (ii) be appropriate in the context of the general purposes of the Site; (iii) not be obscene, pornographic, patently offensive, hateful, abusive or promote racism or discrimination of any kind; (iv) not provide personal information related to the user submitting such User Content, or solicit such information from any other user of the Site; (v) not involve or result in the transmission of junk e-mail, unsolicited mass e-mailings, “spamming,” “spimming” or “phishing;” (vi) not transmit or distribute any potentially harmful programs such as Trojan horses, worms, viruses, spyware or any malicious software or code; (vii) not contain any material or images owned by any other person or entity unless the user submitting such User Content has obtained all necessary rights, licenses and permissions needed to post the material and have it used as contemplated by this Site; and (viii) be only for non-commercial purposes.

 

13. Promotions, Sweepstakes and Contests. On occasion, Totali LLC or certain advertisers or suppliers to this Site may elect to conduct certain promotions, sweepstakes or contests (collectively, “Promotions”) on this Site. Each such Promotion may have specific rules and regulations, which will be made available to users and which shall be deemed incorporated in and become a part of these Terms and Conditions.

 

14. Copyright Infringement Policy. Totali LLC values intellectual property and respects the intellectual property rights of others, and will remove materials on its Site that infringe the copyrights of others or that Totali LLC has a good belief infringes, and may terminate the offending user’s account privileges. If you believe that your copyrighted material may have been infringed by material contained on the Site, then pursuant to Title 17, United States Code, 512, you may notify Totali LLCs Designated Agent in writing as follows:¨Name of Designated Agent: Niv Adi Address: Totali LLC, 4544 Post Oak Place, Suite 258, Houston, TX 77027. Electronic Mail Address: feedback@iamtotally.com In your notice, you must include the following: (i) a physical or electronic signature of the owner of an exclusive right that is allegedly being infringed or of a person authorized to act on behalf of such owner; (ii) identification of the copyrighted work(s) that is (are) allegedly being infringed;¨(iii) identification of the materials that are allegedly causing the infringement and that are desired to be removed, along with sufficient information to allow us to locate such materials; (iv) contact information (i.e., name, address, email address) sufficient to enable Totali LLC to contact you; (v) a statement to the effect that you have a good faith belief that the complained of use of the material was not authorized by the owner of the copyright, its agent or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of the exclusive right that is allegedly being infringed.

 

15. Additional/Different Terms. Certain pages or sections of this Site may contain terms and conditions of use which are in addition to or different from these Terms and Conditions. For example, certain Promotions or content that is designated as “premium” or “special” content may only be made available to users of the Site that consent to Totali LLC’s sharing of their Personally Identifiable Information with the sponsors of such Promotions and/or advertisers appearing on such content pages. In the event that there is a conflict between such additional and/or different terms and conditions of use and these Terms and Conditions, the additional and/or different terms and conditions of use will govern with respect to those specific pages or sections to which they apply.

 

16. Use Disclaimer. Totali LLC is not responsible for any damages or loss related to the use of this Site and/or streaming and/or downloads, products or services from this Site.

THIS SITE, ALL MATERIAL CONTAINED ON THIS SITE, DIGITAL CONTENT, AND ALL LINKS OR
OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED “AS IS” AND WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE SITE, ITS FEATURES AND FUNCTIONS, WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED.

ANY INFORMATION CONTAINED WITHIN THIS SITE IS SUBJECT TO AMENDMENT, REVISION
OR UPDATING WITHOUT NOTICE AT ANY TIME. TOTALI LLC RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE PAGES OF THIS SITE WITHOUT NOTICE AT ANY TIME AND ACCEPTS NO
RESPONSIBILITY FOR THESE PAGES NOT BEING AVAILABLE AT ALL TIMES.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TOTALI , ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE AND ITS MATERIALS AND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
WITHOUT LIMITATION TO THE FOREGOING, TOTALI PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SITE, CONTENT OR MATERIALS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

Without limiting the terms of our Privacy Policy, you understand that Totali does not and cannot warrant that your use of the Site will be private or secure. Information collected by your internet or mobile service provider and other third parties (e.g., ad servers) is used, stored, transferred and disclosed pursuant to the terms, policies and practices of your internet, mobile or other third party service provider. Totali is not responsible for or liable to you for any lack of privacy or security you may experience. We encourage you to carefully consider disclosure of any information that might be accessible to others. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Site.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

 

17. Limitation of Liability
YOUR USE OF THE SITE AND CONTENT IS AT YOUR OWN RISK.

YOU AGREE THAT IN NO EVENT WILL TOTALI LLC OR ITS AFFILIATES BE LIABLE:
(a) FOR ANY ALLEGED DAMAGE OR PERSONAL INJURY OF ANY KIND, INCLUDING BUT NOT LIMITED TO
ANY COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), DIRECT, INDIRECT AND/OR SPECIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS SITE OR ANY
MATERIALS, CONTENT, PRODUCTS OR SERVICES CONTAINED HEREON OR DOWNLOADED HEREFROM,
FROM ANY COMPUTER VIRUS, DELAY OR MALFUNCTION, FROM THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, CONTENT AND MATERIAL OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE
OF THE SITE WHETHER ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF
TOTALI LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
(b) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, MATERIALS, AND CONTENT.

NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS AND CONDITIONS OR POSTED ON THE SITE,
THE MAXIMUM LIABILITY THAT TOTALI LLC SHALL HAVE IS LIMITED TO ANY AMOUNTS YOU
ACTUALLY PAID TO TOTALI LLC.

YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF
WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALOCATION
OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL
BREACH OF THESE TERMS AND CONDITIONS) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN
BETWEEN THE PARTIES.
The foregoing limitations of liability will not apply to the extent prohibited by applicable law.
You acknowledge and agree that the above limitations of liability together with the other provisions in this Agreement that limit liability are essential terms and that Totali would not be willing to grant you the rights set forth in this Agreement but for your agreement to the above limitations of liability.

Certain jurisdictions prohibit the limitation of liability for certain types of damages, and accordingly, such limitations may not apply to you. In such jurisdictions, Totali LLC’s liability is limited to the greatest extent allowable under applicable law.

 

18. Transmitting, Streaming and Downloading. Totali LLC is not responsible for any damages incurred as a result of any interruption, transmission blackout, delayed transmission or incorrect data transmission over the Internet. Totali LLC does not warrant or represent that this Site will meet your requirements, that access or streaming or downloading of Digital Content will not be interrupted or delayed, that there will be no failures, errors or omissions or loss of transmitted information, that no viruses will be transmitted or that no damage will occur to your computer system.

 

19. Indemnity. You agree to indemnify, defend and hold harmless Totali LLC, its parent, subsidiary and affiliated entities, and each of their respective owners, officers, directors, employees, successors, assigns and agents from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorney’s fees) arising from or in connection with: (i) your use or misuse of the Site, Content or Materials (whether on the Site, streamed or downloaded); (ii) any violation by you of these Terms and Conditions or your violation of any law, intellectual property, regulation or third-party right; and/or (iii) any User Content submitted by you to the Site. You agree that your representations and warranties, and your obligation to indemnify Totali LLC, shall survive beyond any term that these Terms and Conditions are in effect.

 

20. Electronic Communications. When you communicate with Totali LLC electronically, via email or otherwise, when you set up an Account with Totali LLC, and each time you make a purchase from, or stream or download a Digital Content from, the Site, you consent to receive electronic communications from Totali LLC. You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by Totali LLC satisfy any legal requirement that such communication be in writing. If you receive marketing e-mails from Totali LLC and wish to opt out, you may follow the opt-out procedures set forth in such marketing e-mails. Your affirmative act of using the Site constitutes your electronic signature to this Agreement and your consent to enter into agreements with Totali electronically.

 

21. Changes in Policy. From time to time, the policies set forth in these Terms and Conditions may change. We will post changes to the Terms and Conditions on this Site, and any changes will become effective immediately upon being posted unless we tell you otherwise. Please review these Terms and Conditions often so that you will remain abreast of our current policies. Your use of this Site and Materials, including any purchases you may make from the Site or any streaming or downloading of a Digital Content from the Site, subsequent to any amendment of these Terms and Conditions will signify your acceptance of, and assent to, its revised terms and that such revised terms shall be applicable. The modified Agreement supersedes all prior agreements, notices or statements regarding the Site.

 

22. Acquisition of Business. In the event that Totali LLC is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, you hereby acknowledge and agree that this Site, all data collected on this Site, and all of Totali LLC rights hereunder may be included in the assets of, and/or transferred pursuant to, such transaction. If that occurs, Totali LLC will post a notice to such effect on this Site.

 

23. Contact Us. If you have any questions concerning the Site or any of the policies set forth in these Terms and Conditions, please contact us at: feedback@iamtotally.com.

 

24. Applicable Law/Dispute Procedures. Use of this Site and these Terms and Conditions shall be governed by the laws of the State of Texas, without regard to its conflict of law provisions and are binding upon the parties hereto in the United States and worldwide. You and Totali agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of this Agreement.
YOU AND TOTALI AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 24 AND THAT YOU AND TOTALI WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW.
YOU AND TOTALI FURTHER AGREE THAT EACH MAY BRING claims against the other only on an individual basis and not as a plaintiff or clASS member in any PURPORTED class or representative action or proceeding. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Totali and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates arising from or relating to this Agreement and its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement, including disputes about the validity, scope or enforceability of this agreement to arbitration (collectively, “Covered Disputes”) will be settled by binding arbitration in the State of Texas administered by the American Arbitration Association (AAA) in accordance with its rules (including its rules and procedures for consumer-related disputes) in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60 days’ advanced written notice of its intent to file for arbitration. Totali will provide such notice by email and you must provide such notice to Totali by email to support@totallypregnant.com.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Totali will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Totali for all fees associated with the arbitration that Totali paid on your behalf which you otherwise would be obligated to pay under the AAA’s rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of this Agreement and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential. Totali and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. NEITHER TOTALI NOR YOU ARE ENTITLED TO ARBITRATE ANY COVERED DISPUTE AS A CLASS, REPRESENTATIVE OR PRIVATE-ATTORNEY ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO PROCEED ON A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL BASIS. If any provision of the agreement to arbitrate in this Section 14 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to this Agreement must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 14, this Agreement and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).

Notwithstanding anything to the contrary set forth in these Terms and Conditions, Totali LLC may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of Texas, in the event that Totali LLC believes that you have violated or threatened to violate any of Totali LLC’s intellectual property rights and you hereby consent to the exclusive jurisdiction and venue of such courts.
In the event that any portion of these Terms and Conditions are deemed unenforceable, unlawful or void by a court of competent jurisdiction, in any jurisdiction for any reason because of the scope, duration or area of its applicability or for other reasons, unless narrowed by construction, such provision shall for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited or unenforceable (or if such language cannot be drawn narrowly enough, the court making any such determination shall have the power to modify, to the extent necessary to make such provision or provisions enforceable in such jurisdiction, such scope, duration or area or all of them, and such provision shall then be applicable in such modified form). If, notwithstanding the foregoing, any such provision would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such provision, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions. No narrowed construction, court-modification or invalidation of any provision shall affect the construction, validity or enforceability of such provision in any other jurisdiction. No waiver by Totali LLC of any term or condition of these Terms and Conditions shall be deemed a further or continuing waiver of such term or of any other term, and Totali LLC’s failure to assert any right or demand compliance with any provision of these Terms and Conditions shall not be deemed to constitute a waiver of any such right or provision.

 

25. Shop Service
The “Shop” feature of the Site (“Shop Service”) allows third-party manufacturers and sellers (“Sellers”) to list and sell their products or services to Site users. Although we offer the Shop Service to facilitate sales transactions through the Site, TOTALI LLC. IS NOT A SELLER. We do not manufacture the products that we feature – the products’ manufacturers are separate entities from Totali LLC. We also are not product resellers; rather, we facilitate purchase transactions with the Sellers that we feature through the Shop Service. The name of each Seller is indicated on the page in the Shop Service displaying the product and/or service for sale.
When you agree to purchase products or services from a Seller through the Application, you form a contract with the Seller. Totali LLC is not a party to this contract nor is Totali LLC an agent for the Seller. Totali LLC does not assume any responsibility or liability arising out of or in connection with your purchase of products and services from a Seller through the Site. You must look solely to the Seller for any and all issues or claims arising out of or in connection with your contract with the Seller.
Orders. The Seller’s terms of sale apply to all of your orders, including order cancellation and returns. When you place an order to purchase, Totali LLC forwards your order to the applicable Seller. Your order is an offer to purchase the product(s) in your order. All orders are subject to the Seller’s acceptance of your offer to purchase. The Seller may limit the order quantity, verify information before accepting an order or refuse any order.

Payment. Totali LLC does not store, process or transmit any of your credit card or payment data.

Pricing and Availability. Totali LLC does not and cannot promise that any particular product or pricing that appears in or thorough the Shop Service is available at any particular time. Until you have confirmed an order, the Seller may change without notice the pricing and availability of products offered through the Shop Service.

Product Information. All information about the products and services available through the Shop Service is provided for information purposes only. We do not and cannot promise that product descriptions or depictions are accurate, complete, reliable, current or error-free.

 

26. Term and Termination. The term of this Agreement commences when you acknowledge your acceptance of this Agreement and continues in effect until terminated by you or us as follows:
You may terminate this Agreement by deleting your User Account.
We may terminate this Agreement at any time without notice if we cease to offer or support the Site, which we may do in our sole discretion.
This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
Upon termination all rights granted to you under this Agreement will also terminate and you must cease all use of the Site and delete all copies of the Site from your Mobile Devices. Sections 3, 6, 12, 16, 17, 19 & 24 survive termination of this Agreement.

 

27. Geographic Restrictions. The Site is based in the state of Texas in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Site and all or some of the Content outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Application and Application Content from outside the United States, you are responsible for compliance with local laws.

 

28. Miscellaneous
(a) This Agreement (in addition to our Privacy Policy and EULA) contains the entire understanding by and among Totali and you with respect to the matters contained herein.
(b) This Agreement inures to the benefit of and will be binding upon Totali’s and your successors and assigns, respectively
(c) This Agreement may be assigned by Totali but you may not assign it without the prior express written consent of Totali.
(c) If any provision of this Agreement is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used.
(d) If Totali fails or you fail to perform any obligation under this Agreement and the other party does not enforce such obligation, the failure to enforce on any occasion will not constitute a waiver of any obligation and will not prevent enforcement on any other occasion.
(e) Nothing contained in this Agreement will be deemed to constitute Totali or you as the agent or representative of the other or as joint venturers or partners.
(f) If Totali is or you are prevented from performing or unable to perform any obligation under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such cause.
(g) Headings and captions are for convenience only.

 

 

Copyright 2014 Totali LLC, Totally Pregnant, Totally My Baby and the Iamtotally logo (or any other applicable mark) are trademarks or registered trademarks of Totali LLC. All other marks are either trademarks or registered trademarks of their respective owners. All rights reserved.