COPYRIGHT
INFRINGEMENTS
We respect the
intellectual property rights of others. If you believe
that any material available on or through the Site
infringes upon any copyright you own or control, please
immediately notify us
using the contact information provided below (a
“Notification”). A copy of your Notification will be
sent to
the person who posted or stored the material addressed
in the
Notification. Please be advised that
pursuant to federal law you may be held liable for
damages if you make material
misrepresentations in a Notification. Thus, if you are
not sure that material
located on or linked to by the Site infringes your
copyright, you should
consider first contacting an attorney.
These Terms of Use shall remain in full force and effect while you
use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS
OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT
NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING
BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR
NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY
REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF
USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR
USE OR PARTICIPATION IN THE SITE OR DELETE
YOUR ACCOUNT AND
ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME,
WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate
or suspend your account for any reason, you are prohibited from
registering and
creating a new account under your name, a fake or borrowed name, or
the name of
any third party, even if you may be acting on behalf of the third
party. In
addition to terminating or suspending your account, we reserve the
right to
take appropriate legal action, including without limitation
pursuing civil,
criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
We
reserve the right to change, modify, or remove the contents of the
Site at any time or for any reason at our sole discretion without
notice. However, we have no obligation to update any information on
our Site. We also reserve the right to modify or discontinue all or
part of the Site without notice at any time. We will not be liable
to you or any third party for any modification, price change,
suspension, or discontinuance of the Site.
We cannot guarantee
the Site will be available at all times. We may experience
hardware, software,
or other problems or need to perform maintenance related to the
Site, resulting
in interruptions, delays, or errors. We
reserve the right to change, revise, update, suspend, discontinue,
or otherwise
modify the Site at any time or for any reason without notice to
you. You agree that we have no liability
whatsoever for any loss, damage, or inconvenience caused by your
inability to
access or use the Site during any downtime or discontinuance of the
Site. Nothing in these Terms of Use will be
construed to obligate us to maintain and support the Site or to
supply any
corrections, updates, or releases in connection therewith.
These
Terms of Use and your use of the Site are governed by and construed
in accordance with the laws of
the State of Ohio
applicable to agreements made and to be entirely performed
within
the State of Ohio
, without regard to its conflict of law principles.
Informal
Negotiations
To
expedite resolution and control the cost of any
dispute, controversy, or claim related to these
Terms of Use (each a "Dispute" and collectively,
the “Disputes”) brought by either you or us
(individually, a “Party” and collectively, the
“Parties”), the Parties agree to first attempt to
negotiate any Dispute (except those Disputes
expressly provided below) informally for at least
thirty (30) days
before initiating arbitration. Such informal
negotiations commence upon written notice from one
Party to the other Party.
If
the Parties are unable to resolve a Dispute through
informal negotiations, the Dispute (except those
Disputes expressly excluded below) will be finally
and exclusively resolved by binding arbitration.
YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU
WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A
JURY TRIAL. The arbitration shall be commenced and
conducted under the Commercial Arbitration Rules of
the American Arbitration Association ("AAA") and,
where appropriate, the AAA’s Supplementary
Procedures for Consumer Related Disputes ("AAA
Consumer Rules"), both of which are available at
the AAA website www.adr.org. Your arbitration fees
and your share of arbitrator compensation shall be
governed by the AAA Consumer Rules and, where
appropriate, limited by the AAA Consumer Rules.
If such costs are
determined to by the arbitrator to be
excessive, we will pay all arbitration
fees and expenses.
The arbitration may be conducted in person,
through the submission of documents, by phone, or
online. The arbitrator will make a decision in
writing, but need not provide a statement of
reasons unless requested by either Party. The
arbitrator must follow applicable law, and any
award may be challenged if the arbitrator fails to
do so. Except where otherwise required by the
applicable AAA rules or applicable law, the
arbitration will take place in United States
County, Ohio. Except as
otherwise provided herein, the Parties may litigate
in court to compel arbitration, stay proceedings
pending arbitration, or to confirm, modify, vacate,
or enter judgment on the award entered by the
arbitrator.
If
for any reason, a Dispute proceeds in court rather
than arbitration, the Dispute shall be commenced or
prosecuted in the state and federal courts located
in United States
County, Ohio, and the
Parties hereby consent to, and waive all defenses
of lack of personal jurisdiction, and forum non
conveniens with respect to venue and jurisdiction
in such state and federal courts. Application
of the United Nations Convention on Contracts for
the International Sale of Goods and the the Uniform
Computer Information Transaction Act (UCITA) are
excluded from these Terms of Use.
In no event shall any
Dispute brought by either Party related
in any way to the Site be commenced
more than one (1)
years after the cause of action
arose.
If this provision is found to be illegal or
unenforceable, then neither Party will elect to
arbitrate any Dispute falling within that portion
of this provision found to be illegal or
unenforceable and such Dispute shall be decided by
a court of competent jurisdiction within the courts
listed for jurisdiction above, and the Parties
agree to submit to the personal jurisdiction of
that court.
The
Parties agree that any arbitration shall be limited
to the Dispute between the Parties individually. To
the full extent permitted by law, (a) no
arbitration shall be joined with any other
proceeding; (b) there is no right or authority for
any Dispute to be arbitrated on a class-action
basis or to utilize class action procedures; and
(c) there is no right or authority for any Dispute
to be brought in a purported representative
capacity on behalf of the general public or any
other persons.
Exceptions to
Informal Negotiations and Arbitration
The
Parties agree that the following Disputes are not
subject to the above provisions concerning informal
negotiations and binding arbitration: (a) any
Disputes seeking to enforce or protect, or
concerning the validity of, any of the intellectual
property rights of a Party; (b) any Dispute related
to, or arising from, allegations of theft, piracy,
invasion of privacy, or unauthorized use; and (c)
any claim for injunctive relief. If this provision
is found to be illegal or unenforceable, then
neither Party will elect to arbitrate any Dispute
falling within that portion of this provision found
to be illegal or unenforceable and such Dispute
shall be decided by a court of competent
jurisdiction within the courts listed for
jurisdiction above, and the Parties agree to submit
to the personal jurisdiction of that court.
There may be
information on the Site that contains typographical errors,
inaccuracies, or
omissions, including descriptions, pricing, availability, and
various other
information. We reserve the right to
correct any errors, inaccuracies, or omissions and to change or
update the
information on the Site at any time, without prior notice.
THE SITE IS PROVIDED
ON AN AS-IS AND AS-AVAILABLE BASIS. YOU
AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR
SOLE RISK. TO THE
FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES,
EXPRESS OR
IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF,
INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR
REPRESENTATIONS ABOUT
THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT
OF ANY
WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR
RESPONSIBILITY
FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND
MATERIALS, (2)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,
RESULTING FROM
YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO
OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR
FINANCIAL
INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF
TRANSMISSION
TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE
LIKE WHICH
MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY,
AND/OR (6) ANY
ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR
DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED,
TRANSMITTED, OR
OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE,
GUARANTEE,
OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY A
THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY
WEBSITE OR MOBILE
APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE
WILL NOT BE A
PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY
TRANSACTION BETWEEN YOU
AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE
PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY
ENVIRONMENT, YOU
SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE
APPROPRIATE.
IN
NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE
TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST
PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM
YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY
CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE
ACTION, WILL AT ALL TIMES BE LIMITED TO
THE LESSER OF THE AMOUNT
PAID, IF ANY, BY YOU TO US
DURING
THE six
(6) MONTH PERIOD
PRIOR TO ANY CAUSE OF ACTION
ARISING
OR $5,000.00 USD
. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON
IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF
CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR
ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT
APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to
defend, indemnify, and hold us harmless, including our
subsidiaries,
affiliates, and all of our respective officers, agents, partners,
and
employees, from and against any loss, damage, liability, claim, or
demand, including
reasonable attorneys’ fees and expenses, made by any third party
due to or
arising out of:
(1) your Contributions;
(2) use of the
Site; (3) breach of
these Terms of Use; (4)
any breach of your representations and warranties set forth in
these Terms of Use; (5)
your violation of the rights of a third party, including but not
limited to intellectual property rights; or (6)
any overt harmful act toward any other user of the Site with whom
you connected via the Site. Notwithstanding the foregoing, we
reserve the right, at your expense, to assume the exclusive defense
and control of any matter for which you are required to indemnify
us, and you agree to cooperate, at your expense, with our defense
of such claims. We will use reasonable efforts to notify you of any
such claim, action, or proceeding which is subject to this
indemnification upon becoming aware of it.
We will maintain
certain data that you transmit to the Site for the purpose of
managing the
performance of the Site, as well as data relating to your use of
the Site. Although we perform regular routine backups
of data, you are solely responsible for all data that you transmit
or that
relates to any activity you have undertaken using the Site. You
agree
that we shall have no liability to you for any loss or corruption
of any such
data, and you hereby waive any right of action against us arising
from any such
loss or corruption of such data.
ELECTRONIC
COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting
the Site, sending us emails, and completing online forms constitute
electronic communications. You consent to receive electronic
communications, and you agree that all agreements, notices,
disclosures, and other communications we provide to you
electronically, via email and on the Site, satisfy any legal
requirement that such communication be in writing. YOU HEREBY AGREE
TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER
RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND
RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE
SITE. You hereby waive any rights or requirements under any
statutes, regulations, rules, ordinances, or other laws in any
jurisdiction which require an original signature or delivery or
retention of non-electronic records, or to payments or the granting
of credits by any means other than electronic means.
CALIFORNIA USERS
AND RESIDENTS
If any complaint
with us is not satisfactorily resolved, you can contact the
Complaint
Assistance Unit of the Division of Consumer Services of the
California
Department of Consumer Affairs in writing at 1625 North Market
Blvd., Suite N
112, Sacramento, California 95834 or by telephone at (800) 952-5210
or (916)
445-1254.
These Terms of
Use and any policies or operating rules posted by us on the Site or
in respect
to the Site constitute the entire agreement and understanding
between you and
us. Our failure to exercise or enforce any right or provision of
these Terms of
Use shall not operate as a waiver of such right or provision. These
Terms of Use operate to the fullest
extent permissible by law. We may assign any or all of our rights
and
obligations to others at any time. We
shall not be responsible or liable for any loss, damage, delay, or
failure to
act caused by any cause beyond our reasonable control. If any
provision
or part of a provision of these Terms of Use is determined to be
unlawful,
void, or unenforceable, that provision or part of the provision is
deemed
severable from these Terms of Use and does not affect the validity
and
enforceability of any remaining provisions. There is no joint
venture,
partnership, employment or agency relationship created between you
and us as a
result of these Terms of Use or use of the Site. You agree that
these Terms of Use will not be
construed against us by virtue of having drafted them. You hereby
waive any and
all defenses you may have based on the electronic form of these
Terms of Use
and the lack of signing by the parties hereto to execute these
Terms of Use.
In
order to resolve a complaint regarding the Site or to receive
further information regarding use of the Site, please contact us
at:
Hex Fitness
United States
Phone:
419-481-6976
support@hex-fitness.com