Terms of Use

Last Revised: April 24, 2010

These Terms of Use shall apply to all websites owned and/or operated by Benchmark Wellness, LLC (hereinafter "Benchmark"), including without limitation the website on which these Terms of Use are posted and Benchmark's parents, subsidiary and/or affiliate entities whether or not referred to directly as Benchmark or Benchmark Wellness, LLC. Benchmark maintains this and other websites as a service to its customers. By accessing and/or using the web sites owned, operated and/or maintained by Benchmark (the "Benchmark Sites"), you are expressly agreeing to comply with and be bound by the following Terms of Use and Benchmark's Privacy Policy separately provided, as well as all applicable laws and regulations. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU ARE NOT AUTHORIZED TO USE THE ACTIVE SITES AND MUST NOT ACCESS OR USE THEM. Benchmark may revise and update these Terms of Use at any time; please periodically review them, because your continued usage of the Benchmark Sites indicates your agreement with any such changes.

You further understand and agree that any updates, enhancements or added features of any Benchmark Sites or services shall be made part of these Terms of Use. Additionally, certain of the Benchmark Sites may be subject to registration, processing and handling fees and/or subject to additional terms of use. You are responsible for promptly paying those fees to insure your right to access the associated Benchmark Sites and/or services.

1. Copyright.

Ownership. All content included on the Benchmark Sites, such as text, graphics, logos, button icons, images, audio clips and software, as well as the compilation of any of the foregoing (meaning the collection, arrangement and assembly), are the property of Benchmark or its content suppliers and protected by U.S. and international copyright laws. You acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Benchmark Sites or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Benchmark or such advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Benchmark Sites, services, products or software, in whole or in part.

Permitted Use. The content and software on the Benchmark Sites may be used as an information, entertainment, registration and/or shopping resource. In addition, Benchmark hereby authorizes you to view, copy, download, and print for personal use only any Benchmark-owned content on the Benchmark Sites. Such personal use is subject to the following conditions: (i) content may be used only for non-commercial, informational purposes and may not be posted or distributed, (ii) the content may not be modified, and (iii) copyright, trademark and other proprietary notices may not be removed. This permission does not extend to materials owned by Benchmark licensors. Except as expressly stated in these Terms of Use or as otherwise specifically authorized by Benchmark, you may not duplicate, download, publish, modify or otherwise distribute (including through the use of frames or deep links) the material on the Benchmark Sites. Furthermore, you may not copy, reproduce or distribute the design or layout of the Benchmark Sites, the Benchmark logos or other design elements or software. Any use of the Benchmark Site content not described herein is strictly prohibited. You also shall not (and shall not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the software contained in any Benchmark Site. You agree not to modify any software for an Benchmark Site in any manner or form, nor to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Benchmark Sites. You agree not to access the Benchmark Sites by any means other than through the interface that is provided and authorized by Benchmark.

Copyright Complaints. Benchmark respects the intellectual property of others, and we ask our content partners and Benchmark members to do the same. If you believe that your copyrighted work has been impermissibly copied or used and is accessible on the Benchmark Sites in a way that constitutes copyright infringement, you may notify Benchmark by providing Benchmark's copyright agent the following information:

2. Permitted Use of Benchmark Trademarks

Benchmark trademarks identify Benchmark products and services, and let the public know the source of those products and services. You may make comparative or other nominal fair use of our trademarks in advertising and promotional materials, and in referring to our products and services (for example, in a magazine article) without our permission, provided you follow standard trademark usage practices and provide proper attribution to Benchmark. Other uses require written permission from Benchmark, and absent such express permission, you agree not to use or display the Benchmark trademarks in any manner. Please make such requests by e-mail to info@benchmarkwellness.com; we will evaluate your request as soon as possible. Benchmark's Trademarks include, without limitation, those published and searchable on the United States Patent and Trademark Office located at http://www.uspto.gov.

3. User Submissions and Content

Benchmark may provide interactive areas on the Benchmark sites, in which users may post communications. You understand that all information (including your member name or user name), data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Benchmark, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Benchmark Sites. Benchmark does not control the Content posted via the Benchmark Sites and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Benchmark Sites, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Benchmark be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Benchmark Sites. You further understand that the internet has no geographical boundaries, and you therefore agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

Benchmark does not claim ownership of any Content submitted and/or posted by you on any Benchmark Site(s). However, by submitting and/or posting any Content to the Benchmark Sites, you grant Benchmark a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display the content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such Content. You also permit any subscriber to access, display, view, store and reproduce such content for personal use.

In consideration of being allowed to use the Benchmark interactive areas and Benchmark Sites, you agree not to:

The foregoing actions shall constitute a material breach of these Terms of Use. Benchmark reserves the right to delete from the Benchmark Sites any Content, postings or member names that violate the above terms and will cooperate fully with any law enforcement officials and/or agencies in the investigation of any violator or violators, up to and including complete and immediate termination of your registration and/or accounts with Benchmark. You acknowledge that Benchmark may or may not pre-screen Content, but that Benchmark and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Benchmark Sites. Without limiting the foregoing, Benchmark and its designees shall have the right to remove any Content that violates these Terms of Use or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Benchmark or submitted to Benchmark, including without limitation information in Benchmark Message Boards and in all other parts of the Benchmark Sites.

You acknowledge, consent and agree that Benchmark may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Benchmark, its users and the public.

You understand that the technical processing and transmission of the Benchmark Sites, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You understand that the Benchmark Sites and software embodied within the Benchmark Sites may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Benchmark and/or content providers who provide content to the Benchmark Sites. You may not attempt to override or circumvent any of the usage rules embedded into the Benchmark Sites. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Benchmark Sites, in whole or in part, is strictly prohibited. Should you choose to submit any ideas, suggestions, documents, and/or proposals ("Submissions") to Benchmark through any of its media, you acknowledge and agree that: (i) your Submissions do not contain confidential or proprietary information; (ii) Benchmark is not under any obligation of confidentiality, express or implied, with respect to the Submissions; (iii) Benchmark shall be entitled to use or disclose (or choose not to use or disclose) such Submissions for any purpose, in any way, in any media worldwide; (iv) Benchmark may have something similar to the Submissions already under consideration or in development; (v) your Submissions shall automatically become the property of Benchmark without any obligation of Benchmark to you; and (vi) you are not entitled to any compensation or reimbursement of any kind from Benchmark under any circumstances.

4. Links; Third Party Services; Promotional Messages

As a convenience to our members and/or visitors, we may provide links to third-party web sites. The linked sites are not under our control, and we make no representations as to the quality, suitability, functionality or legality of any sites to which we may provide links. You hereby waive any claim you might have against Benchmark with respect to such sites.

In addition, you may order services or merchandise through the Benchmark Sites from other persons not affiliated with Benchmark ("Seller"). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Benchmark makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider Benchmark, nor will Benchmark be construed as, a party to such transactions, whether or not Benchmark may have received some form of revenue or other remuneration in connection with the transaction. You agree that Benchmark will not be liable for any costs or damages arising out of such transactions, either directly or indirectly.

Benchmark and/or third parties may, from time to time, send e-mail messages to you containing advertisements, promotions, etc. Benchmark makes no representation or warranty with respect to the content of any such e-mail messages or any goods or services which may be obtained from such third parties, and you agree that neither Benchmark nor such third party shall have any liability with respect thereto. You further agree to receive certain periodic communications from Benchmark such as newsletters, content, messages, and announcements, and that these communications are considered part of your access of the Benchmark Sites and services and that you may not be able to opt out of receiving such communications in every instance.

5. Registration and Password

Benchmark may offer login and registration opportunities and you are responsible for maintaining the confidentiality of your login ID and password (your "registration"). You shall be responsible for all uses of your registration, whether or not authorized by you. You agree to immediately notify Benchmark of any unauthorized use of your registration. You further represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (i) provide true, accurate, current and complete information about yourself as submitted to Benchmark, and (ii) maintain and promptly update your registration information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Benchmark has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete. Benchmark has the right to immediately suspend or terminate your account and refuse any and all current or future use of the Benchmark Sites or related products and services (or any portion thereof). Benchmark makes every effort to protect individual privacy and personal information, and is particularly concerned about child privacy. Parents of children under the age of 13 who wish to allow their children access are required to provide their consent for any registration. By creating such a registration involving your child under the age of 13, you certify that you are at least 18 years old or that you are the parent or legal guardian of the child/children listed on the registration. Unless you have notified us otherwise, you also give your child permission to access many areas of the Benchmark Sites related to the registration, including email, message boards and other registration related information. Please remember that the Benchmark Sites and Benchmark services are intended to apply to a broad audience. Accordingly, as the parent or legal guardian, it is your responsibility to determine whether any of the Benchmark Sites areas and/or content are appropriate for your child.

Registration data and certain other information about you is subject to Benchmark's Privacy Policy. Through your use of the Benchmark Sites and related services you consent to the collection and use (as set forth in the Privacy Policy) of certain information about you, including the transfer of this information to the United States and/or other countries for storage, processing and use by Benchmark and its affiliates.

Pricing Information Disclosure For California Residents. Under California Civil Code Section 1789.3, California residents that access the Benchmark Sites and services are entitled to the following specific consumer rights information: (i) Pricing Information - Current rates, if any, for using the Service may be obtained by request to info@benchmarkwellness.com. Benchmark reserves the right to change any fees, pricing or charges or to institute new fees at any time; (ii) Complaints - The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N St, Ste 501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.

6. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT USE OF BENCHMARK IS AT YOUR SOLE RISK. BENCHMARK IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BENCHMARK AND ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU MUST CONSULT WITH A LICENSED PHYSICIAN BEFORE PARTICIPATING IN ANY OF THE ACTIVITIES DESCRIBED ON BENCHMARK.

BENCHMARK MAKES NO WARRANTY THAT THE BENCHMARK SITES' SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE. BENCHMARK DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION IN, OR PROVIDED IN CONNECTION WITH, THE BENCHMARK SITES. BENCHMARK IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BENCHMARK SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OWN COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

7. Limitation of Liability

BENCHMARK, ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BENCHMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE BENCHMARK SITES, PRODUCTS OR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE BENCHMARK SITES; (C) USE BY YOU OF ANY TRAINING PROGRAM OR ANY OTHER PRODUCT PURCHASED THROUGH BENCHMARK; (D) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY BENCHMARK; (E) PERSONAL INJURY NOT CAUSED BY BENCHMARK'S GROSS NEGLIGENCE; (F) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (G) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE BENCHMARK SITES; OR (H) ANY OTHER MATTER RELATING TO THE BENCHMARK SITES, OR BENCHMARK PRODUCTS OR SERVICES. YOU AGREE THAT BENCHMARK'S MAXIMUM LIABILITY TO YOU, FOR ANY REASON OR CAUSE WHATSOEVER, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES RECEIVED BY BENCHMARK FROM YOU.

8. Indemnification

You agree to defend, indemnify and hold harmless Benchmark, its subsidiaries, and each of their affiliates, directors, officers, agents, partners, contractors, licensors, licensees and employees or the author of any training program from any claim, demand, loss, liability or expense (including reasonable attorneys' fees), relating to or arising out of: your use of Benchmark's services; the Benchmark Sites; any other websites accessed from or affiliated with the Benchmark Sites; any products purchased off of the Benchmark Sites or websites available from or related to the Benchmark Sites; the use by you of any training programs purchased through Benchmark; your violation of these Terms of Use; content you submit, post, transmit or otherwise make available through the Benchmark Sites; or any other infringement committed by you, or any other subscriber of your account, of any intellectual property or other right of any person or entity.

9. Termination

Benchmark reserves the right, in its sole discretion, to immediately and without any prior notice to suspend or terminate (i) these Terms of Use; (ii) your registration with or ability to access the Benchmark Sites and/or any other service provided to you by Benchmark upon; (a) any breach by you of these Terms of Use or upon your demonstration of conduct that Benchmark determines to be inappropriate; (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Benchmark Sites and/or Benchmark services (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Where your account or registration with Benchmark is terminated, you may be required to forfeit any credits, pre-paid fees, and any other amounts collected by Benchmark as part of your use and registration of the Benchmark Sites. Benchmark shall not be required to refund, redeem or pay any such amounts to you, and you shall remain liable to Benchmark for any charges, fees, commitments, and obligations incurred by you prior to such termination. All records, information, messages, content and other information related to your registration and account may also be deleted by Benchmark in its sole discretion without any notice or liability to you. Benchmark shall not be liable to you or any third party for any termination of your account, any associated account related or identifying information, or access to the Benchmark Sites and/or Benchmark services.

10. Applicable Law; Consent to Jurisdiction

The Benchmark Sites (excluding linked sites) are controlled by Benchmark from its offices within the State of Hawaii, United States of America. The Benchmark Sites can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Hawaii, by accessing the Benchmark Sites both you and Benchmark agree that the statutes and laws of the State of Hawaii, without regard to the conflict of laws principles thereof, will apply to all matters relating to use of the Benchmark Sites.

You agree that exclusive jurisdiction for any dispute with Benchmark, or in any way relating to your membership or use of Benchmark, resides in the courts of the State of Hawaii and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Hawaii in connection with any dispute including any claim involving Benchmark or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

11. Miscellaneous

Benchmark reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, these Terms of Use, the Benchmark Sites and/or Benchmark services (or any part thereof) with or without notice. Benchmark shall not be liable to you or to any third party for any modification, suspension or discontinuance. The failure of either party to insist upon or enforce strict performance by the other party of any provision of the Terms of Use or to exercise any right under the Terms of Use will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, rather, the same will be and remain in full force and effect. Benchmark may assign its rights and obligations under these Terms of Use and upon such assignment Benchmark may be relieved of any further obligation hereunder. You represent to Benchmark that you have the authority to register with Benchmark according to these Terms of Use. The failure of Benchmark to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Benchmark may provide you with notices, including those regarding changes to these Terms of Use, by email, regular mail or postings on the Benchmark Sites. Except for certain Benchmark licensors, or as may be otherwise expressly provided herein, there are no third-party beneficiaries to these Terms of Use.

12. Contact

Please report any violations of these Terms of Use by contacting Benchmark Wellness, LLC, Attn: General Counsel, Post Office Box 2004, Kailua, HI 96734-2004. Phone: 1.877.538.5797. Email info@benchmarkwellness.com.