Terms of Use

BrandMuscle, Inc.

Effective Date: August 1, 2024

INTRODUCTION

Please read these Terms of Use (“Terms”) carefully. They govern your use of the websites, mobile applications, and other online platforms operated by BrandMuscle, Inc. (“BMI,” “we,” “us” or “our”) where these Terms are posted, and all services and features available thereon (collectively, the “Sites”).

These Terms represent a binding contract between BMI and you. By creating an account or otherwise using the Sites (except for the limited purpose of reviewing these Terms or other agreements or policies on the Sites), you expressly represent that you (i) have reached the age of majority in your jurisdiction of residence and (ii) agree to be bound by these Terms. If you do not agree to be bound by these Terms, or if these Terms are not enforceable where you are located, you may not use the Sites.

If you are an individual using the Sites on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “organization”), then you are agreeing to these Terms on behalf of yourself and such organization, and you represent and warrant that you have the legal authority to bind such organization to these Terms. In that case, references to “you” and “your” in these Terms will refer to both the individual using the Sites and to any such organization, unless context requires otherwise.

Certain areas, features, or functionalities of the Sites may be subject to different or additional terms, rules, guidelines or policies (“Additional Terms”), and we may provide such Additional Terms to you via postings, pop-up notices, links, or other means. All Additional Terms are hereby incorporated by reference into these Terms. Any reference to the “Terms” in this agreement includes the Additional Terms. From time to time, such Additional Terms may conflict with these Terms. In the event of such a conflict, the Additional Terms will control.

NOTICE REGARDING ARBITRATION: PLEASE NOTE THE ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER SET FORTH BELOW, WHICH, SUBJECT TO SOME LIMITED EXCEPTIONS, REQUIRES YOU TO ARBITRATE CLAIMS YOU MAY HAVE AGAINST US ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.

INFORMATIONAL PURPOSES ONLY

The content provided through the Sites is for general informational purposes only. The Sites are not intended to provide tax, legal, accounting, financial, medical, or any other type of professional advice. While the Sites may contain perspectives and opinions on matters related to product marketing, such content is general in nature and does not necessarily take into account any individual’s specific circumstances. Please seek the advice of professionals, as appropriate, regarding the evaluation of any information, opinion, advice, or other content on the Sites.

ACCOUNT CREATION AND PASSWORDS

To access certain portions of the Sites, you may have the option, or be required, to create an account. You agree to provide truthful and accurate information during the account creation process. You also agree to maintain the accuracy of any submitted data. If you provide any information that is untrue, inaccurate, or incomplete, or otherwise act in a false or misleading manner during the account creation process, we reserve the right to terminate your account and suspend your use of the Sites.

Further, you are responsible for preserving the confidentiality of your account password and agree to notify us of any known or suspected unauthorized use of your account. You agree that you are responsible for all acts or omissions that occur on your account while your password is being used.

OWNERSHIP OF THE SITES

The Sites and all of their content, features, and functionalities, including all information, text, graphics, Trademarks (defined below), button icons, images, audio clips, video clips, data compilations, and the design, selection and arrangement thereof (collectively, the “BMI Content”), are the exclusive property of BMI or our licensors and may not be used or exploited in any way without prior written consent.

We are providing you with access to the Sites and the BMI Content pursuant to a limited, non-exclusive, non-sub-licensable, non-transferable, revocable license. You may use the Sites and the BMI Content for non-commercial purposes only. This license is available to you unless and until you or we terminate these Terms, we otherwise suspend your access to the Sites, or you are barred from using the Sites by applicable law. BMI reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.

Under this license, you are permitted to use the Sites and the BMI Content in the following ways: (i) you may access and browse the Sites, and use the features and functionalities made available to you thereon, using a device that you own or are authorized to use (a “Device”); (ii) you may download the BMI Content from the Sites and print out a hard copy, provided that you do not modify it in any way and do not remove or alter any trademark, copyright or other notice contained thereon; and (iii) your Device may temporarily store copies of the BMI Content incidental to your use of the Sites.

You may not otherwise modify, copy, distribute, display, reproduce, sell, license, create derivative works from, use, or exploit the BMI Content in any manner without the prior written authorization of BMI or the relevant licensor (if applicable). Further, without the prior written permission of BMI, you may not frame, or make it appear that a third-party website or service is presenting or endorsing, any the Sites or incorporate any BMI Content into another website or other service. Any unauthorized use of the BMI Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and other applicable laws. You agree to comply with reasonable written requests from us to help us protect our proprietary and intellectual property rights.

The BMI Content includes the trademarks, service marks, logos, slogans, trade names, and trade dress used on the Sites (the “Trademarks”). The absence of a trademark notice or symbol indicating the registration or ownership of the Trademark does not constitute a waiver of BMI’s or its licensors’ trademark or other rights. These Terms do not grant you any rights to use the Trademarks. Under no circumstances are you permitted to use the Trademarks in a manner that creates a likelihood of consumer confusion.

USER CONTENT & LICENSE GRANT TO BMI

Certain aspects of the Sites may permit users to submit, post, link, send, share, or otherwise make available (“share”) information and content (“User Content”). User Content has not necessarily been reviewed or approved by BMI, and we, therefore, make no representations or warranties as to the accuracy, reliability, completeness, or timeliness of any such content. Any views or opinions expressed in User Content belong to the users who shared the content and not to BMI. Your reliance on any User Content is done entirely at your own risk. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY RELATED TO, ANY USER CONTENT, INCLUDING YOUR RELIANCE ON ANY SUCH CONTENT.

You will retain ownership of any intellectual property rights that you own in your User Content, but, in exchange for the opportunity to share User Content on the Sites, you automatically grant to BMI a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, display, and otherwise use and exploit your User Content for any purpose (commercial or otherwise) and in any media, medium, form, format, and forum now known or hereafter developed. We may sublicense these rights through multiple tiers of sublicenses. By sharing User Content, you represent and warrant that you possess all rights and permissions necessary to grant this license.

User Content shall not be deemed confidential and BMI shall not have any obligation to keep any such material confidential. You acknowledge and agree that BMI shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to, developing, manufacturing, using, and marketing products and services incorporating such information, all without any compensation or attribution to you.

For avoidance of doubt, all User Content on the Sites is considered BMI Content. As such, aside from the limited license to access and use the Sites and the BMI Content granted in these Terms, you may not copy, reproduce, or otherwise use or exploit User Content shared by another party without the prior written permission of BMI or the owner of such content.

VIDEO CONTENT ON THE SITES AND THIRD PARTY TRACKING TOOLS

The Sites may contain video content, audiovisual content, or content of a like nature (collectively, “Video Content”). Video Content is provided for the purpose of enhancing the user experience on the Sites and is, therefore, provided in connection with BMI’s business activities related to product marketing. BMI is not in the business of renting, selling, or delivering Video Content in a commercial manner. By using the Sites, you agree that BMI is not a “video tape service provider” as defined in the Video Privacy Protection Act (“VPPA”), 18 U.S.C.A. § 2710.

Further, the Sites may utilize online tracking technologies and code-based tools, including social media pixels, software development kits, and cookies that track information about your activity on the Sites (collectively, “Targeting Tools”). Targeting Tools may result in information about your activity on the Sites being transmitted from your browser to BMI and to third parties, which, in turn, may result in the display of targeted advertisements on third-party websites. Whether Targeting Tools on the Sites result in your browser’s transmission of information to third parties depends on a number of factors that may be outside of BMI’s knowledge or control, including what third-party websites you use, what information you have provided to such third parties, and whether (and the extent to which) you have limited the use of cookies by the operators of third-party websites. As such, you hereby acknowledge and agree that, if Targeting Tools on the Sites result in your browser’s transmission of information to third-parties, including third party websites, (i) such transmissions do not constitute a “knowing disclosure” of “personally identifiable information” by BMI under the VPPA and (ii) you will not initiate any litigation or otherwise assert any claim against BMI based, in whole or in part, on such transmissions, whether under the VPPA, the California Invasion of Privacy Act (Cal. Penal Code § 630 et seq.), or any other statute, regulation, or cause of action.

SITE TRANSACTIONS

The Sites may permit you to place orders for the purchase products or services (“Orders”). If you wish to place an Order on the Sites, you will be asked to supply certain information, including your name and payment, billing, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY ORDER.

You further agree to provide current, complete, and accurate information for all Orders. You agree to promptly update your account and other information, as applicable, so that we can complete your Order and contact you as needed. By submitting any information in connection with an Order, you grant to BMI the right to provide such information to third parties for purposes of facilitating the completion of the Order. Verification may be required prior to the acknowledgment or completion of an Order.

Your placement of an Order on the Sites constitutes a request to purchase the relevant product or service from us. As such, your receipt of an Order confirmation email or similar acknowledgment means that your request has been received; it does not mean that your Order has been accepted or that the price or availability of the product or service has been confirmed. We reserve the right to refuse service, terminate accounts, or cancel or modify Orders, and we shall have no liability to you other than refunding your Order, if applicable. Without limiting the foregoing, we may limit or cancel quantities purchased per person, per household, or per Order. These restrictions may include Orders placed by or under the same customer account, the same credit card, and/or Orders that use the same billing and/or shipping address. If we make a change to or cancel an Order, we will attempt to notify you by contacting the email and/or billing phone number provided at the time the Order was made.

PURCHASE OF OUR MERCHANDISE FOR RESALE PURPOSES IS NOT AUTHORIZED. WE RESERVE THE RIGHT TO LIMIT OR PROHIBIT ORDERS THAT APPEAR TO BE PLACED BY UNAUTHORIZED DEALERS, RESELLERS OR DISTRIBUTORS, AND TO CEASE DOING BUSINESS WITH SUCH CUSTOMERS, WITH NO FURTHER NOTICE.

You agree to pay all charges that may be incurred by you or on your behalf through the Sites, at the price in effect when such charges are incurred including, all shipping charges. You remain solely responsible for any taxes that may be applicable to your Orders, regardless of whether tax is included in the purchase price of your Order. Further, it is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the receipt, possession, use, and sale of any item purchased from the Sites. Any offer for any product or service made on the Sites is void where prohibited.

Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Sites passes to the purchaser upon delivery to the carrier.

PRODUCT & SERVICE DESCRIPTION, AVAILABILITY & PRICING INFORMATION

BMI strives to be as accurate as possible and eliminate errors on the Sites. There may, however, be information on the Sites that contains errors, inaccuracies, or omissions and they may relate to product or service descriptions, pricing, promotions, offers and/or availability. Certain products or services offered on the Sites may have limited quantities and may not always be available or may be available only in certain geographic regions.

We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information on the Sites at any time and without prior notice. In the event that any errors, inaccuracies, or omissions affect an Order you have already placed and we do not cancel the Order (which we have the right but not the obligation to do), your sole remedy is to cancel, return, or exchange your order, to the extent available under any applicable BMI policies. The prices displayed on the Sites are quoted in U.S. Dollars and are subject to change without notice.

We strive to display the colors of our products as accurately as possible, but we cannot guarantee that your Device’s display of these colors will always be accurate. Differences in color and other variations in the products displayed on the Sites may be possible as a result of differences in display technologies or other reasons. Unless we expressly provide otherwise, if a product offered on the Sites is not as described or pictured, or otherwise does not meet your expectations, your sole remedy is to return or exchange your Order, to the extent available under any applicable BMI policies.

USER CONDUCT

By using the Sites, you agree not to share any User Content or otherwise use the Sites in any manner that:

• Is designed to interrupt, destroy or limit the functionality of, any computer software or hardware or telecommunications equipment (including by means of software viruses or any other computer code, files or programs);

• Interferes with or disrupts the proper functioning of the Sites or the services connected to the Sites;

• Infringes any copyright, trademark, trade secret, patent or other right of any party, or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);

• Consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

• Causes BMI to lose (in whole or in part) the services of our Internet service providers or other suppliers;

• Links to materials or other content, directly or indirectly, to which you do not have a right to link;

• Is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or discriminatory on the basis of race, ethnicity, nationality, sex, sexuality, gender, age, disability or any other characteristic protected by local, state, national, or international law, regulation, or order;

• Is designed to gain access to features of the Sites that you are not authorized by BMI to access;

• Copies, modifies, creates a derivative work of, reverse engineers, decompiles or otherwise attempts to extract the source code of the software underlying the Sites or any portion thereof;

• Violates, or encourages anyone to violate, these Terms or any applicable local, state, national, or international law, regulation, or order.

BMI shall have the right, but not the obligation, to monitor, evaluate, and analyze any use of and access to the Sites for the purpose or determining or enforcing compliance with these Terms. Further, BMI shall be free to delete, remove, or refuse to post any User Content if we determine that the content violates these Terms.

You agree that BMI has the right to (i) disclose your identity or other relevant information about you to any third party who claims that User Content posted by you violates their rights; (ii) take legal action, including referral to law enforcement, with respect to any suspected illegal or unauthorized use of the Sites; and (iii) cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of any user of the Sites.

YOU HEREBY WAIVE ANY CLAIMS RELATED TO OR RESULTING FROM ANY ACTION OR INACTION OF BMI WITH RESPECT TO (I) MONITORING THE USE OF THE SITES; (II) DELETING, REMOVING, MODIFYING, OR REFUSING TO POST ANY USER CONTENT; (III) DETERMINING OR ENFORCING COMPLIANCE WITH THESE TERMS; AND (IV) COOPERATING WITH LAW ENFORCEMENT ON ANY MATTER RELATED TO THE SITES. YOU FURTHER AGREE THAT BMI SHALL NOT BE LIABLE TO YOU WITH RESPECT TO ANY OTHER USER’S CONDUCT THAT IS PROHIBITED UNDER THESE TERMS.

Notwithstanding the use restrictions in this section, nothing in these Terms shall prohibit or restrict your ability to (i) make any “statement” protected by Cal. Civ. Code § 1670.8; (ii) engage in a “covered communication” as defined by the Consumer Review Fairness Act, 15 U.S.C.A. § 45b; or (ii) express or publish any review, performance assessment, or similar analysis (collectively, “Reviews”) about BMI, its employees or agents, or its products or services, to the extent that such Reviews are protected under applicable law.

LINKS TO THE SITES

You are permitted to establish a hyperlink to a homepage of the Sites, provided that (i) you do so in a manner that is fair, legal, and does not state or imply any sponsorship, endorsement of or affiliation with the originating website, application, or service (the “Originating Site”) by BMI absent our express, written consent; (ii) the Originating Site contains no content that you would be prohibited from posting on the Sites pursuant to these Terms or any applicable law; (iii) the Originating Site is owned by you or you have express written consent from the owner to establish the link; and (iv) you do not establish a deep-link or otherwise link to any page other than the homepage of the Sites. You agree to cooperate with us as requested to remove any links that we determine violate these Terms. We reserve the right to withdraw linking permission at any time and without notice.

LINKS TO EXTERNAL SITES

The Sites may contain links or otherwise facilitate access to other websites, services, or platforms (“External Sites”). We are not responsible for the availability of External Sites, nor do we endorse the activities or services provided by External Sites. UNDER NO CIRCUMSTANCES SHALL WE BE HELD RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY YOUR USE OF OR RELIANCE ON ANY CONTENT, GOODS, OR SERVICES AVAILABLE ON EXTERNAL SITES.

PRIVACY

Your submission of personal information through the Sites is governed by our Privacy Policy, which is hereby incorporated into these Terms by reference.

DISCLAIMER OF WARRANTIES

A. THE SITES

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITES AND THE BMI CONTENT ARE PROVIDED “AS IS.” BMI MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU OR ANY OTHER PARTY RELATING IN ANY WAY TO THE SITES, THE BMI CONTENT, INCLUDING USER CONTENT. FOR AVOIDANCE OF DOUBT, BMI DISCLAIMS ANY IMPLIED WARRANTIES THAT THE SITES AND THE BMI CONTENT ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BMI OR A REPRESENTATIVE SHALL CREATE A WARRANTY.

WE DO NOT GUARANTEE THAT (I) THE SITES WILL MEET YOUR REQUIREMENTS, OR THAT THEY ARE ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES; (II) THE SERVICES THAT MAY BE OBTAINED THROUGH THE SITES, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS; (III) YOU WILL BE ABLE TO ACCESS OR USE THE SITES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING; OR (IV) THE BMI CONTENT WILL BE ACCURATE OR RELIABLE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE, OR OTHER CONTENT AVAILABLE THROUGH THE SITES.

B. PRODUCTS & SERVICES

CERTAIN PRODUCTS AND SERVICES OFFERED ON THE SITES MAY BE SOLD BY BMI WITH A WARRANTY. IF A WARRANTY IS APPLICABLE TO A PRODUCT OR SERVICE, THE WARRANTY TERMS WILL BE PRESENTED OR ACCESSIBLE ON THE PORTION OF THE SITES WHERE THE PRODUCT OR SERVICE IS OFFERED FOR SALE AND/OR WITHIN THE PRODUCT OR SERVICE PACKAGING OR MATERIALS. PLEASE CAREFULLY REVIEW ANY WARRANTY MATERIALS APPLICABLE TO OUR PRODUCTS AND SERVICES.

YOU UNDERSTAND AND AGREE THAT, UNLESS WE EXPRESSLY STATE IN WRITING THAT A WARRANTY APPLIES, THE PRODUCTS AND SERVICES AVAILABLE ON THE SITES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.

C. ADDITIONAL RIGHTS

SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART. FOR CLARIFICATION, NOTHING IN THESE TERMS SEEKS TO EXCLUDE OR LIMIT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. HOWEVER, YOU AGREE THAT THE TERMS OF THIS SECTION SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

OUR LIABILITY TO YOU

A. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BMI, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS (THE “RELEASED PARTIES”) BE LIABLE FOR THE FOLLOWING DAMAGES (IF ANY) ARISING IN CONNECTION WITH YOUR USE OF (OR INABILITY TO USE) THE SITES OR ANY PRODUCTS OR SERVICES OBTAINED THROUGH THE SITES, IN ALL CASES REGARDLESS OF LEGAL THEORY, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE: (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (II) LOSS OF USE, DATA, BUSINESS, REVENUE, OR PROFITS, IN ALL CASES WHETHER DIRECT OR INDIRECT; (III) DAMAGES, INCLUDING FOR ANY DELAY OR FAILURE IN PERFORMANCE, ARISING FROM CAUSES BEYOND THE REASONABLE CONTROL OF THE RELEASED PARTIES; OR (IV) DAMAGES ARISING FROM THE CONDUCT OF OTHER USERS OF THE SITES OR THEIR USER CONTENT.

IN ADDITION, WHEN USING THE SITES, INFORMATION WILL BE TRANSMITTED OVER A MEDIUM WHICH IS BEYOND THE CONTROL AND JURISDICTION OF BMI, ITS PARTNERS, ADVERTISERS, AND SPONSORS OR ANY OTHER THIRD PARTY MENTIONED ON THE SITES. ACCORDINGLY, BMI SHALL HAVE NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SITES.

IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE RELEASED PARTIES IN CONNECTION WITH ANY DISPUTE (DEFINED BELOW) EXCEED THE GREATER OF (I) $100 USD OR (II) THE AMOUNT YOU PAID TO BMI IN CONNECTION WITH YOUR USE OF THE SITES IN THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR FIRST CLAIM RELATED TO THE DISPUTE AROSE.

B. ADDITIONAL RIGHTS

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART. FOR CLARIFICATION, NOTHING IN THESE TERMS SEEKS TO EXCLUDE OR LIMIT ANY DAMAGES OR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. HOWEVER, YOU AGREE THAT THE TERMS OF THIS SECTION SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

INDEMNIFICATION

You agree to indemnify, hold harmless, and (at BMI’s option) defend BMI from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to: (i) your breach of any of these Terms; (ii) any User Content you share; and (iii) your violation of any law or the rights of a third party.

We reserve the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and you agree to cooperate with us if and as requested by us in the defense and settlement of such matter. In any case, you agree never to settle any matter for which your indemnification is required absent our prior written consent.

DISPUTES & ARBITRATION

If there is any controversy, claim, action, or dispute between you and BMI arising out of or related to your use of the Sites or the breach, enforcement, interpretation, or validity of these Terms or any part of them (“Dispute”), you and BMI agree to resolve the Dispute through the dispute resolution procedures set forth in this section, even if that Dispute arose prior to the Effective Date of these Terms.

A. Informal Dispute Resolution

You and BMI agree to first attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve the Dispute informally. The party with the complaint (the “Complaining Party”) shall send written notice to the other party (the “Receiving Party”) describing the facts and circumstances of the Dispute (a “Dispute Notice”).

All Dispute Notices must: (1) be signed by the Complaining Party; (2) include the Complaining Party’s name, physical address, and email address; (3) describe with specificity the nature and basis of the Dispute in a manner sufficient for the Receiving Party to evaluate the merits of the Complaining Party’s individualized claim, and (4) set forth the alleged damage and harm suffered and the specific relief sought with a calculation for it. Each Dispute Notice is limited to a single Dispute between you and BMI. As such, your Dispute and the Disputes of other parties may not be combined into a single Dispute Notice.

Dispute Notices shall be sent to:

• To BMI: You must send notice (1) by electronic mail to legal@brandmuscle.com and legal@ansira.com and (2) by first-class or certified mail to [mailing address].

Ansira Partners II, LLC

Legal Department

2300 Locust St.

St. Louis, MO 63103

And to

BrandMuscle, a wholly owned subsidiary of Ansira Partners II, LLC

Legal Department

1500 W. 3rd Street, Suite 325

Cleveland, Ohio 44113

• To You: We will send notice by (1) first class or certified mail to the physical address we have on file for you (if any) and (2) by email to the email address we have on file for you (if any). If we do not have any address on file for you, or if we are, for any reason, unable to provide notice via the contact information on file, we reserve the right to provide notice by other reasonable means.

You and BMI will attempt to resolve the Dispute through informal negotiation within sixty (60) days beginning on the date that a valid Dispute Notice is sent (the “Informal Negotiation Period”). During the Informal Negotiation Period, the parties are required to conduct an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and BMI (the “Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to participate. BMI will participate in the Conference through one or more representatives, which may include our counsel.

Both you and BMI agree that the foregoing dispute resolution procedure (the “Informal Dispute Resolution Procedure”) is a condition precedent that must be satisfied before initiating any arbitration or litigation against the other party. If any aspect or requirement of the Informal Dispute Resolution Procedure has not been completed or satisfied, the parties agree that (i) a court of competent jurisdiction can enjoin the filing or prosecution of any arbitration or litigation and (ii) unless prohibited by law, no arbitration administrator shall accept or administer any arbitration or demand fees in connection with the Dispute.

B. Individual Arbitration

IF ANY DISPUTE CANNOT BE RESOLVED BY THE INFORMAL DISPUTE RESOLUTION PROCEDURE, YOU AND BMI AGREE THAT SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT TO HAVE A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, COLLECTIVE OR REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT YOU AND WE WOULD OTHERWISE HAVE IN COURT WILL NOT BE AVAILABLE OR WILL BE MORE LIMITED IN ARBITRATION, INCLUDING DISCOVERY AND APPEAL RIGHTS.

All such Disputes shall be exclusively submitted to Judicial Arbitration and Mediation Services (JAMS) (www.jamsadr.com) for binding arbitration under its rules then in effect (as modified by these Terms), before one arbitrator to be mutually agreed upon by both parties. The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (https://www.jamsadr.com/consumer-minimum-standards/) (the “Minimum Standards”) if, and only if, it is determined by JAMS or the arbitrator that the Minimum Standards are applicable to the Dispute. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $5,000 or less, you may choose to have the arbitration conducted (1) solely on the basis of the documents submitted to the arbitrator or (2) through a non-appearance-based hearing by teleconference or videoconference.

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable. For the avoidance of doubt, you and BMI agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this section of the Terms or the arbitrability of any claim or counterclaim. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

C. Exceptions

Notwithstanding any other provision of this section, you or BMI may (1) bring an individual claim or elect to resolve a Dispute in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply (so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction) and (2) file an individual claim in court to enjoin the infringement or other misuse of its intellectual property rights (so long as the action is brought and maintained on an individual basis).

In addition, nothing in these Terms prohibits you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

CHOICE OF LAW AND CHOICE OF FORUM

These Terms have been made in and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the state of Ohio, without giving effect to any conflict of laws principles. You and BMI acknowledge that these Terms evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

Except for disputes or claims properly lodged in a small claims court in the United States, any disputes or claims not subject to the arbitration provision discussed above shall be resolved by a court in Cleveland, Ohio, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

JURISDICTION

BMI controls and operates the Sites from within the United States and makes no representation or warranty that the Sites are appropriate or available for use or access in any location outside of the United States. Anyone using or accessing the Sites from outside the United States does so on their own risk and is responsible for compliance with all applicable laws and regulations, including U.S. and international export control laws and regulations.

MODIFICATION AND TERMINATION OF THESE TERMS AND THE SITES

A. Changes to these Terms. We reserve the right to modify these Terms at any time. When we do so, we will update the “Effective Date” above. For material changes, we will seek to supplement such notice by email, a pop-up message on the Sites, another other prominent notice on the Sites, or by other reasonable means. Your use of the Sites following any changes to these Terms will constitute your acceptance of the Terms as modified.

B. Termination of these Terms. These Terms will continue to apply to you until terminated by either you or BMI. We may terminate these Terms or suspend your access to the Sites at any time if (i) we believe you have breached any of these Terms, (ii) we stop providing the Sites or any material component thereof, or (iii) as we believe necessary to comply with applicable law. You may terminate these Terms at any time by contacting legal@brandmuscle.com. If you or we terminate these Terms, or if we suspend your access to the Sites, you agree that (i) your right to access and use the Sites ceases immediately (ii) we shall have no liability or responsibility to you in connection with such termination or suspension of access, and (iii) except as expressly provided otherwise by BMI, we will not refund any amounts that you have already paid to us.

The following provisions shall survive the termination of these Terms: This section; the sections OWNERSHIP OF THE SITES (excluding the license granted to you), VIDEO CONTENT ON THE SITES, USER CONTENT AND LICENSE GRANT TO BMI, DISCLAIMER OF WARRANTIES, OUR LIABILITY TO YOU, DISPUTES & ARBITRATION, CHOICE OF LAW & CHOICE OF FORUM, and MISCELLANEOUS; and any other provisions of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

C. Modifications to the Sites. We also may change, restrict access to, suspend or discontinue the Sites, or any portion of the Sites, at any time, with or without notice. You acknowledge and agree that BMI will not be liable to you or to any third party for any such termination, modification, suspension, or discontinuance of the Sites.

MISCELLANEOUS

A. Interpretation. In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and shall be construed as if followed by “without limitation.” Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of these Terms. Any limited or specific disclaimers or limitations of liability found in these Terms shall not limit the effect, force, or breadth of any other disclaimers or limitations of liability in these Terms. When these Terms refer to a decision or action that will or may be made or taken by BMI, such decision or action shall be made, taken, or refrained from in BMI’s sole discretion and judgment.

B. No waiver. If BMI does not exercise or enforce any legal right or remedy which is contained in these Terms (or which BMI has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of BMI’s rights, and all such rights or remedies shall still be available to BMI.

C. Severability. If any provision of these Terms is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

D. Entire Agreement. These Terms and any Additional Rules set forth the entire understanding and agreement between us with respect to your use of the Sites.

E. Assignment. You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under these Terms without restriction.

F. No Relationship. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and BMI.

G. Notice to California Residents.

i. You may reach BMI at the contact information provided below in the “CONTACT US” section. California residents may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

II. WITH RESPECT TO ANY LIMITATIONS OR DISCLAIMERS OF WARRANTIES OR LIABILITY INCLUDED IN THESE TERMS, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

H. Admissibility. You agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or your use of the Sites to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

CONTACT US

If you have any questions, comments or concerns about these Terms, please contact us at:

• legal@brandmuscle.com with a copy to legal@ansira.com