Terms of Service
TERMS OF SERVICE
Please read these Terms of Service (the “Agreement”) carefully. Your use of the Service (as defined below) constitutes your consent to this Agreement.
- The Parties; Our Products and the Service. This Agreement is between you and RPM Fitness, Inc. dba: RPM Training Co. & Atom (“Company” or “RPM” or “Atom” or “we” or “us” or “our”) concerning your use of (including any access to) the online services and content that we make available for use with the exercise equipment that we make available to you for purchase (the “Products”), (collectively, together with any web pages, cloud services, content, instructional videos, streaming content and other materials and services available therein, and successor service(s) thereto, referred to as the “Service”). You are not obligated to purchase a Product in order to subscribe to the Service. All Services are offered and/or made available by way of our website located at rpmtraining.com and www.trainatom.com (the “Site”).
Additional Terms Applicable to Using the Service; Your Account.
- Company Terms of Sale and Warranty. This Agreement hereby incorporates by this reference any additional terms and conditions posted by us through the Service, or otherwise made available to you by us including our Terms of Sale and Warranty which can be found here: https://rpmtraining.com/terms-of-sale & https://trainatom.com/terms-of-sale
Mobile Terms of Service. The Company mobile message service (the "Service") is operated by the Company. Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
By consenting to the Company’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of the Company through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with the Company. Your participation in this program is completely voluntary.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of the Service at any time. Text the single keyword command STOP to +18557420538 for RPM and +18447351873 for Atom or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Company mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
- These additional legal terms and policies are collectively referred to as “Other Terms”.
Legal Right to Use the Services; Changes to the Agreement; Agreement to Arbitrate Disputes.
- Legal Age; Supervised Use of the Site and Service. By using the Service, you affirm that you are of legal age to enter into this Agreement, or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement. Please note that separate requirements may apply to a minor's use of any Company Products or Service. Individuals under 16 years old are not permitted to use or access the Service, except as described in below. Minors who are at least 16 years old who can safely use the Products may use the Products and Service with a parent/guardian consent and supervision, so long as the parent/guardian is present at all times during use. You may permit individuals under the age of 18 to use certain Site content only if you remain present and supervise the minor at all times during use of the Site content. You are fully responsible for the minor's safe use of Site content.
- Your Associated Entity as Users. If you are an individual accessing or using the Service on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (a “Associated Entity”), then you are agreeing to this Agreement on behalf of yourself and such Associated Entity, and you represent and warrant that you have the legal authority to bind your Associated Entity to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Service and to User accessing the Service by way of any Associated Entity Account. Please note that use of the Service by or on behalf of any Associated Entity may also be subject to additional terms made available by us from time to time, which are hereby incorporated by this reference into this Agreement. We do encourage corporate membership, and we will work with your Associated Entity to effectively manage User subscription licenses and to develop cost-effective pricing and fee structures for group usage of the Service.
- Changes to the Agreement and Other Terms. Please note that we reserve the right to change this Agreement or the Other Terms at any time. Please read these pages carefully and if you have any questions regarding this Agreement or our Other Terms, please contact us at firstname.lastname@example.org or email@example.com.
- Arbitration. This Agreement contains a mandatory arbitration provision that, as further set forth in Section 19 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
The Service; Access Rights; Users and General Restrictions.
- Provision of Service. The Service is provided on a subscription basis for a set term designated in your order (each, a “Subscription Term”). The length of your Subscription Term will be described in your order, and can vary from a single session use of the Services, a month-to-month subscription, or a three (3) month, six (6) month or full annual (e.g. one (1) year) subscription. The Service fees you agree to pay are based on your Subscription Term duration. The date on which this Agreement applies to your use of the Service is the date on which you place your first Service order.
- Access Rights to Use Service. You may access and use the Service solely for you own benefit and in accordance with the terms and conditions of this Agreement, the Other Terms and your order which defines your Subscription Term for the Service and related Service fees. The Service is licensed (not sold) to Users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to use the Service, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to use and access the Service, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Service.
- Users. Use of and access to the Service is permitted only by you as a single, designated named individual with a unique user ID and password (a “User”). You agree that as a User, you will keep your User ID and password information strictly confidential and not share such information with any unauthorized person. You shall be responsible for any and all actions taken by you (or by an authorized third party) on your Account. User subscription rights are personal to you (or to an Associated Entity), are paid for on a “named” user, individual basis and are not intended to be shared with other third person or parties: Your user subscription rights are not intended to serve as a concurrent or rotational use subscription license for use by multiple persons, entities or parties, unless otherwise described in your order. We will strictly enforce the terms of this Agreement against any User that abuses their designated use and access grant privilege.
- Registration; User Names and Passwords. You may need to register and set up an Account to use all or part of the Service. We may reject, or require that you change, any user name (which may be your e-mail address), password or other information that you provide to us in registering and setting up your Account. Your user name and password are for your personal use only and should be kept confidential; you, and not us, are responsible for choosing a secure password and for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Service Account. You are solely responsible for all use of the Service and for any other unauthorized users who access the Service through your Account.
- General Restrictions and Rules of Conduct. In connection with the Service, you must not:
- Access the Service in a manner that exceeds your User rights as described in the order;
- Post, transmit or otherwise make available through or in connection with the Service any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit or otherwise make available through or in connection with the Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
- Use the Service for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
- Use the Service for any purposes other than for your personal use.
- Harvest or collect information about Users of the Service.
- Interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service; or violate any requirement, procedure or policy of such servers or networks.
- Use the Service intentionally to adversely impact the speed, security or integrity of the Service (or any data contained within the Service);
- Restrict or inhibit any other person from using the Service with his or her own Products (or other non-Company products).
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without our express prior written consent.
- Use the Service to provide or create, or incorporate the Service into, any similar service provided to a third party or otherwise directly expose the functionality of the Service to any third party
- Reverse engineer, decompile or disassemble any portion of the Service, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Service.
- Frame or mirror any portion of the Service, or otherwise incorporate any portion of the Service into any product or service, without our express prior written consent.
- Systematically download and store Service content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Service, without our express prior written consent.
- You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.
- Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Your use of the Service following any changes to this Agreement (or Other Terms) will constitute your acceptance of such changes. The “Last Updated” legend in this Agreement indicates when this Agreement was last changed. We encourage you to check the Service regularly to learn about changes to this Agreement and/or to the Other Terms. We may, at any time and without liability, modify or discontinue all or part of the Service (including access to any part of the Service via any third-party links); charge, modify or waive any fees required to use any part of the Service; or offer new opportunities, options and fee choices to some or all Service Users.
Subscription Term, Fees and Payment.
- Subscription Term and Renewals. Unless otherwise specified in the applicable order, your use of the Service and the Subscription Term reflected in your order shall automatically renew for additional periods equal to the last Subscription Term described in your order (e.g., a new month-to-month, a new annual renewal Subscription Term), at our then-current license rates, unless you give us written notice of termination by way of your online Account prior to expiration of the then-current Subscription Term.
- Fees; Payments. All fees are as set forth in the applicable order and shall be paid by Customer at the time you purchase the Service subscription, unless otherwise specified in the applicable order. You represent and warrant that you have the right to use any payment card that you submit in connection with a Service transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the Service transactions (See Section 5.4 below). Verification of information may be required prior to the acknowledgment or completion of any Service transaction. By making a Service transaction, you represent that the applicable Products and Services will be used only in a lawful manner. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.
- Promotional Pricing Offers. We may from time to time offer special promotional offers, plans or subscriptions (“Offers”). Offer eligibility is determined by us at its sole discretion and we reserve the right to revoke an Offer and put your Account on hold in the event that we determine you are not eligible. Existing Users with an existing or recent Service subscription may not be eligible for certain introductory Offers. We may use information such as User ID, method of payment or an Account email address used with an existing or recent Service subscription to determine Offer eligibility. The eligibility requirements and other limitations and conditions will be disclosed when you sign-up for the Offer or in other communications made available to you.
- Changes to the Price and Subscription Plans. We reserve the right to change our Service subscription options or adjust pricing for our Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes or changes to your Service subscription will take effect following notice to you.
- Fees are Non-Refundable; Taxes and Late Fees. All Service subscription order are final. Except as otherwise required by applicable law, any paid Service subscription order is non-cancellable and non-refundable. If you decide to cancel your Service subscription, your Service subscription will automatically expire at the end of your then-current Subscription Term. For example, if you cancel your Service subscription in the middle of a monthly billing cycle, your Service subscription will continue until the end of that billing cycle. You are required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of the Company. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
- Suspension of Service. Without limiting our termination or other rights hereunder, we reserve the right with notice (email based on your Account contact information is sufficient) to suspend your access to the Service in whole or in part, without liability to you: (i) if your Account is overdue; (ii) for your breach of Sections 4.3 (Users) and 4.5 (General Restrictions and Rules of Conduct); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Service. Unless this Agreement has been terminated, we will cooperate to restore your access to the Service promptly after we verify that you have resolved the issue requiring suspension.
- Company’s Right to Terminate the Service. In addition to its rights under Section 18 below, we reserve the right, in its sole and absolute discretion, to exclude any individual(s) from obtaining a Service subscription or using the Service or to terminate (or not renewing) any Service subscription, for any lawful reason, including abuse of the Service subscription, failure to comply with this Agreement, or fraud, misrepresentation or other conduct detrimental to the interests ofthe Company. Any such exclusion or termination may affect eligibility for further participation in a future Service subscription.
- Your Right to Cancel Your Subscription Service. You can cancel your Service subscription at any time, and you will continue to have access to the Service through the end of your billing period. To cancel Service subscriptions purchased through www.rpmtraining.com, go to the “Account" page on the Site and follow the instructions for cancellation. If you cancel your Service subscription, your Account will automatically close at the end of your current billing period. To see when your Account will close, click "Billing details" on the "Account" page. To cancel Service subscriptions purchased through www.trainatom.com email firstname.lastname@example.org
- Effects of Termination. Please note that if your Service subscription expires or is cancelled or terminated as set forth in this Section 5 or in Section 18 below, you may no longer have access to any data, information or other content (including historical data, usage records, custom workouts, etc.) associated with your Service subscription. We may disable your Account promptly following the termination or expiration of your Service subscription.
- Use of the Services Inside and Outside of the United States. The Service is controlled or operated (or both) from the United States, and all content, instructional videos, documentation or other published materials are subject to the internal laws of the United States, including all applicable copyright and consumer protection laws. Our advertisement, consumer communications and other Site content are subject to the jurisdiction of various U.S. states and the U.S. federal government, including oversight by the U.S. Federal Trade Commission (https://www.ftc.gov/about-ftc/what-we-do). We also offer the Service to Users located outside of the U.S., and the capabilities of the internet permit Users to access the Site and our Services on a global basis. That does not mean we consent or agrees to be subject to any applicable law in every jurisdiction on a worldwide basis. You must determine the legality of using and accessing the Services in the country and location in which you access the internet. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service's availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO YOU OR TO ANY THIRD PARTY, PERSON OR ENTITY, FOR YOUR USE OF THE SERVICES IN A JURISDICTION THAT PREVENTS, LIMITS, OR RESTRICTS SUCH USE.
Feedback; Ownership of Our Products and Services.
- Feedback. If you provide us any feedback, suggestions, requests, comments or other ideas about any of our Services or Products (“Feedback”), you agree that we are free to use the Feedback to develop new products or services, modify or enhance our Products and Services, or for any other commercial purpose without any duty or obligation to account or pay royalties.
- We Own Our Service, Our Products and Trademarks. You acknowledge that we own all right, title and interest in and to our Products (including all designs) and Services including any updates resulting from any Feedback you provide. All trade names, trademarks, service marks and logos on the Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
- Other Intellectual Property Rights. You acknowledge that the Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All content generated by us, and content provided to us by our partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and the Company, we own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the Service.
User Profiles; Forums; and Monitoring Content.
- User Generated Content. Service visitors may make available certain materials (each, a “Submission”) through or in connection with the Service, including on profile pages or on the Service's interactive services, such as message boards, competition leaderboards and other forums, and chatting, commenting and other messaging functionality. We have no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Service, you do so at your own risk.
- License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials). You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
- Does the content use a word that is universally considered offensive?
- Is the content hateful, discriminatory, or belittling in nature?
- Is the content overtly and graphically sexual?
- Is the content promoting or advocating for violence?
If the answer of any of these questions is “YES”, the content is subject to moderation, up to and including removal from our Site and cancelation of your Service. Questions or concerns regarding specific content should be directed to email@example.com or firstname.lastname@example.org.
- Security. We agree to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or your data including your Submissions. However, we shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond our control.
Third Party Materials; Links.
- Certain Service functionality may permit access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
- We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by us with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
- Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
- Service-Related Content. The content and other material available through the Service may include instructional videos, exercise routines, exercise records and other media. The quality of the display of the Service content may vary from device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. We make no representations or warranties about the quality of your Service experience on your display. The time it takes to begin using the Service content will vary based on a number of factors, including your location, available bandwidth at the time, the Service content you have selected and the configuration of your device. You also acknowledge and agree that we are not a healthcare provider or fitness instructor; that the Service (including any recommendations and any information available through the Service that may be personalized) may not be appropriate for you, and does not constitute or replace medical advice; and that we are not responsible for any results that may (or may not) be obtained from the use of the Service. You acknowledge and agree that it is your sole responsibility to consult with your personal physician regarding any medical condition, impairment or disability that may prevent or limit your ability to use the Service. You further understand and agree that you are solely responsible for abiding by your personal physician's recommendation as to any such medical restrictions, and for using the Service solely in accordance with your personal physician's advice.
- By using the Services, you are expressly agreeing to the terms and conditions set forth in our “Service and Health Waiver” which may be reviewed here: https://rpmtraining.com/waiver-release & https://trainatom.com/waiver-release
- Assumption of the Risk. In addition, you understand that by using the Service, you may be exposed to a variety of hazards and risks, foreseen or unforeseen, including risks that arise as a result of entering a gym space or any other space or environment in which the Service is made available, performing physical activity, and/or using the Products. You understand that injuries or damage could occur by natural causes or activities of other persons, including the activities of other persons using the Products or other equipment, or other third parties (including third-party fitness instructors and other exercise participants), whether as a result of negligence or otherwise. To the fullest extent permitted by applicable law, you voluntarily assume all risk of loss, damage and injury to person or property that may arise from, or that is related to, your use of the Service and the Products, whether such risk is known or unknown to you.
- Waiver of Legal Claims Against Company. You hereby waive and release the Company, its shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively “Company Parties”), to the maximum extent permitted by law, from any claim, action, suit or demand arising out of or in connection with the use of the Services (including with respect to any physical injury or death) or the Products. You acknowledge that the Company Parties will not incur any obligation or liability to you under any legal theory (including negligence) as a result of your use of the Service or the Products. You agree that this release is binding upon you and your heirs, executors, administrators, successors and assigns.
- Waiving All Claims. The foregoing waiver and release is intended to apply to all claims not known or suspected to exist, with the intent of waiving, if applicable, the effect of California Civil Code Section 1542 (which states as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected his or her settlement with the debtor.) and other analogous laws or legal principles of any jurisdiction requiring the intent to release future unknown claims.
- Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the Service and any Products and Third Party Materials are made available to you on an“As Is”, “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) The Company disclaims all warranties with respect to the Service and any Products and to Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title unless expressly noted in the Warranty, which is available at https://www.rpmtraining.com/terms-of-sale & https://www.trainatom.com/terms-of-sale. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and Company Parties, and their respective successors and assigns.
- Availability; Support. While we will try to maintain the timeliness, availability, integrity and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors and materials that are inconsistent with, deviate from or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration or if you are in need of any support regarding the Service or our Products, please contact us at email@example.com or firstname.lastname@example.org with a description of such alteration and its location on the Service.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY AND COMPANY PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY AND COMPANY PARTIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH, OR FROM COMPANY'S TERMINATION OF THIS AGREEMENT; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE SERVICE ; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY TO USE THE SERVICE WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE APPLICABLE CLAIM; AND (B) TEN U.S. DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE COMPANY PARTIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
- Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless the Company and Company parties, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys' fees) arising out of or relating to (a) any use of, or activities in connection with, the Service (including all Submissions) by you, use of the Products, and/or any other person who uses the Service through you; and (b) any violation or alleged violation of this Agreement by you.
- Termination. This Agreement is effective until terminated. In addition to its rights in Section 5 above, we may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if w believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Service will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 4.5, 5, 8, 9.2, 13-14, and 16-22 shall survive any expiration or termination of this Agreement.
Governing Law. This Agreement are governed by the laws of the United States and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
- Arbitration Clause & Class Action Waiver If a dispute arises between you and the Company, we would like to talk to you about it. Contact us at email@example.com or firstname.lastname@example.org. If we are unable to resolve the dispute, you agree to submit the dispute to binding arbitration as described below. Please read this section carefully as it affects your legal rights.
- Agreement to Binding Arbitration and Class Action Waiver. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SERVICES OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND THE COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT THE COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
- Opt-Out of Arbitration Agreement. You may opt out of this agreement to arbitrate by emailing email@example.com or firstname.lastname@example.org with your first name, last name, and address within thirty (30) days of accepting this agreement to arbitrate, with a statement that you decline this arbitration agreement, in which case you agree to and consent to the exclusive jurisdiction of the state or federal courts located in Santa Clara County, California, U.S.A. to resolve any disputes under this Agreement or in connection with your use of the Products.
- Arbitration Procedures. The arbitration will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/consumer. For consumers located outside of the United States, Canada and Mexico, the arbitration will be administered under the International Chamber of Commerce (“ICC”) Rules of Arbitration (https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/) using the Expedited Procedure Provisions (https://iccwbo.org/dispute-resolution-services/arbitration/expedited-procedure-provisions/). The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA, the ICC or by the arbitrator. The arbitrator's decision will follow this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
- Information or Complaints. If you have a question or complaint regarding the Service, please send an e-mail to email@example.com or firstname.lastname@example.org,. You may also contact us by writing to 1047 17th Street, Santa Cruz, California 95062. Please note that e-mail communications will not necessarily be secure; accordingly you should not include payment card information or other sensitive information in your e-mail correspondence with us. California residents may 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.
- Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
- This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.
- If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
- You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction.
- No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default.
- Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.”
- This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and the Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company relating to such subject matter.
- Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Neither party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party's reasonable control and not caused by that party's fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Last Updated: October 24, 2023