View our previous Terms of Service, effective until May 29 2022 here
View our previous Terms of Service, effective until July 14 2022 here
View our previous Terms of Service, effective until December 18 2022 here
Effective as of December 19, 2022
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Fiture Holding LLC (together with our affiliates, “Fiture”, “we”, or “us”) provides an online fitness community and related products, services, content and features through Fiture websites and its subdomains (“Sites”), Fiture fitness mirrors (such as our interactive-enabled mirror) and other products through which Fiture services are accessed (the “Product”), Fiture mobile or fitness mirror applications ( including iOS and Android applications “Apps”), and Fiture-controlled social media pages (such as Facebook and Instagram). The Fiture Sites, Apps, Products (defined below) and Fiture-controlled social media pages are together known as the “Fiture Service” or “the Services”. By registering as a member or by visiting, browsing, purchasing from, or using the Fiture Service in any way, you (as a “user”) accept and agree to be bound by these Terms of Service, which forms a binding agreement between you and Fiture.
IF YOU SUBSCRIBE TO THE FITURE SERVICE FOR THE COMMITMENT PERIOD (AS DEFINED IN THE MEMBERSHIP TERMS AND CONDITIONS), THEN YOUR MEMBERSHIP WILL BE AUTOMATICALLY RENEWED ON A MONTHLY BASIS AT THE EXPIRATION OF THE COMMITMENT PERIOD AT FITURE’S THEN-CURRENT MEMBERSHIP PRICE UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR MEMBERSHIP IN ACCORDANCE WITH THE MEMBERSHIP TERMS AND CONDITIONS.
PLEASE BE AWARE THAT SECTION 18 OF THESE TERMS OF SERVICE BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES OR CLAIMS ARE RESOLVED BETWEEN YOU AND FITURE, INCLUDING WITHOUT LIMITATION, ANY DISPUTES AND CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. IN PARTICULAR, IT CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION CLAUSE: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 2 OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, PHONE CALL AND PUSH NOTIFICATION.
If you do not wish to be bound by these Terms of Service, you may not access or use any of the Fiture Services. Certain elements of the Fiture Service may be subject to additional terms and conditions specified from time to time (“Supplemental Terms”), including, but not limited to, the Membership Terms and Conditions, and if applicable, and your use of those elements of the Fiture Service is subject to those additional terms and conditions. Such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Fiture Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Fiture Service. The Terms of Service, any applicable Supplemental Terms, and any Fiture policies referred to herein are referred to herein as collectively the “Agreement.”
YOU ACKNOWLEDGE AND AGREE THE AGREEMENT IS SUBJECT TO CHANGE BY FITURE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Fiture will make a new copy of the Terms of Service available at the Site and within the Apps and any new supplemental terms will be made available from within, or through, the affected Fiture Service. We will also update the effective date at the top of the Agreement. If we make any material changes, we will provide notice of such material changes on the Site or within the Apps and if you have a Membership with us (as defined in Section 4), we will also attempt to notify you by sending an email at the last e-mail address you provided to us in your account registration. Any changes to the Agreement will be effective immediately for new users of the Fiture Service and will be effective for existing users upon the earlier of (a) the effective date at the top of the Agreement and (b) your consent to and acceptance of the updated Agreement if Fiture provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Fiture may require before further use of the Fiture Service is permitted.
If you do not agree to the updated Agreement, you must not use and must stop using the Fiture Service. Otherwise, your use and continued use of any of the Fiture Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. PLEASE REGULARLY CHECK THE SITE OR THE APPS TO VIEW THE LATEST AGREEMENT. YOU AGREE THAT FITURE’S CONTINUED PROVISION OF THE FITURE SERVICE IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT. YOU ALSO AGREE THAT FITURE’S PUBLICATION OF THE TERMS AND SERVICES ON THE SITE CONSTITUTES A REASONABLE METHOD TO INFORM ITS CUSTOMERS AND THE PUBLIC REGARDING THE TERMS AND CONDITIONS OF USING FITURE’S SERVICES.
1. WHO MAY USE THE FITURE SERVICE
You must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to register with and use the Fiture Service. Minors under the age of 18 years old may participate in certain aspects of the Fiture Service provided that such individuals:
If you choose to permit a minor under the age of 18 to use the Fiture Service with you, for example, if you permit the minor to participate in a “Teenage Area” or similar class, you acknowledge and agree that you are solely and fully responsible for the acts and omissions of such minor in connection with the Fiture Service.
We may, in our sole discretion, refuse to offer the Fiture Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that you comply with all applicable laws, rules and regulations related to the Agreement, and the right to access and use the Fiture Service is revoked where the Agreement or use of the Fiture Service is prohibited or conflicts with any applicable law, rule or regulation.
2. LICENSE TO USE THE FITURE SERVICE
2.1. License. Subject to your compliance with the Agreement, during the term of the Agreement, Fiture grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Fiture Service for your own personal, non-commercial use and for no other purpose whatsoever, a right which may not be assigned or sublicensed to anyone else. This license includes the right to view content available on the Fiture Service and the right to download one copy of the Apps on a single mobile device that you own or control and to run such copy of the Apps solely for your own personal, non-commercial use and for no other purpose whatsoever. This license will remain in effect unless and until you breach the Agreement, or this license is terminated by either you or Fiture.
2.2. Update. You understand that the Fiture Service (including the Product and Apps) is evolving. As a result, Fiture may require you to accept updates to the Fiture Service. You acknowledge and agree that Fiture may update Fiture Service with or without notifying you. You may need to update third-party software from time to time in order to use the Fiture Service.
2.3. Restrictions. Except as expressly permitted in writing by an authorized representative of Fiture, you will not use the Fiture Service in any manner except as expressly authorized under the Agreement, and you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Fiture Service in whole or in part, nor will you take any measures to interfere with or damage the Fiture Service, and/or use the Fiture Service (or any component thereof) to create any product or technology that competes with the Fiture Service (or any component thereof). Unless otherwise specified, copying or modifying any content or using content for any purpose other than your personal, non-commercial use of the Fiture service, including use of any content on any other website or networked computer environment, is strictly prohibited. You will not download or install any third-party software or application on the Product that is not expressly permitted by Fiture in writing. All rights not expressly granted by Fiture in the Agreement are reserved.
2.4. Communication. By entering into the Agreement or using the Fiture Service, you agree to receive communications from us, including via e-mail, postal mail, text message, calls, and push notifications. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but not limited to: operational communications concerning your Membership or the use of the Fiture Service, updates concerning new and existing features on the Fiture Service, communications concerning new products or services, communications concerning promotions run by us or our third-party partners, and news concerning Fiture and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL COMMUNICATIONS YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAIL AS A CONDITION OF USING THE FITURE SERVICE OR RELATED SERVICES.
3. PRIVACY
Our Privacy Notice forms a part of the Agreement. Please review the Privacy Notice to learn about:
4. REGISTRATION; ACCOUNT
4.1. To enjoy full access to the content and features of the FITURE Service through the Product and Apps, you must register as a member of the FITURE Service and purchase a Membership (a “Membership”). Each Membership is governed by the Membership Terms and Conditions and includes access for up to six (6) individual users residing within the Membership holder’s household. Each user shall have a separate log-in and profile on the FITURE Service (each an “Account”) and must accept the Agreement prior to using the FITURE Service. You must provide complete and accurate registration information to FITURE when signing up for a Membership and/or an Account and promptly notify us if any of your information changes. If you provide any information that is untrue, inaccurate, not current or incomplete, or FITURE has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, FITURE has the right to suspend or terminate your Membership and/or Account and refuse any and all current or future use of the FITURE Service (or any portion thereof). You agree not to create an Account or sign up for a Membership using a false identity or information, or on behalf anyone other than yourself. FITURE reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to sign up for a Membership, create an Account, or use a FITURE Service if you have been previously banned from accessing any FITURE Service. To enjoy full access to the content and features of the Fiture Service through the Product and Apps, you must register as a member of the Fiture Service and purchase a Membership (a “Membership”). Each Membership is governed by the Membership Terms and Conditions and includes access for up to six (6) individual users residing within the Membership holder’s household. Each user shall have a separate log-in and profile on the Fiture Service (each an “Account”) and must accept the Agreement prior to using the Fiture Service. You must provide complete and accurate registration information to Fiture when signing up for a Membership and/or an Account and promptly notify us if any of your information changes. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fiture has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fiture has the right to suspend or terminate your Membership and/or Account and refuse any and all current or future use of the Fiture Service (or any portion thereof). You agree not to create an Account or sign up for a Membership using a false identity or information, or on behalf anyone other than yourself. Fiture reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to sign up for a Membership, create an Account, or use a Fiture Service if you have been previously banned from accessing any Fiture Service.
4.2. You may not use someone else's name, or any name, location, other public profile information or image that violates any third-party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Fiture’s sole discretion).
4.3. You are responsible for all activity that occurs under your Membership or Account, including any activity by unauthorized users. You agree that you shall monitor your Membership and Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Fiture Service under your Membership or Account by minors. You must safeguard the confidentiality of your password and not share your Account login or password with any third-party and log out of your Account after using the Fiture Service. If you become aware of an unauthorized access to your Account or any other breach of security, we recommend that you immediately change your password.
4.4. You are responsible for obtaining, maintaining, and paying for all hardware and all telecommunications and other services needed to use the Fiture Service. Specifically, you must provide all equipment and software necessary to connect to the Fiture Service, including but not limited to, a mobile device that is suitable to connect with and use the Fiture Service, in cases where the Fiture Service offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Fiture Service.
5. SALE; DELIVERY; INSTALLATION; RELOCATION; REPAIR
5.1. Orders. Fiture accepts orders for the Fiture equipment, including the Product, mounting accessories, heart rate monitor, apparel, and other accessories, that we may offer through the Fiture Site (collectively, “Products”). Each part of any order that you submit to Fiture constitutes an offer to purchase. If you do not receive a message from Fiture confirming receipt of your order, please contact Fiture at order@Fiture.com before re-entering your order. We may send an acknowledgment of receipt of your order and/or proof of purchase information through the Fiture Site or to your email address after your payment has been processed. Fiture’s confirmation of receipt of your order does not constitute Fiture’s acceptance of your order. Fiture is only deemed to have accepted your order once the Product(s) you ordered have been shipped. Unless otherwise specified at the time of purchase, you must pay for Product(s) when you place the order. All Products ordered will be delivered to the shipping address you provide. We reserve the right to cancel or deny an order placed by you at any time and for any lawful reason (including without limitation, the discontinuation of Products or unavailability of Products) prior to our delivery of the Product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those Product(s). Unfortunately, availability of Products cannot be guaranteed. Please note that Products, Service and other information provided is subject to corrections and changes without notice. Please see our Limited Warranty and Return Policy for further information about the Products.
5.2. Commercial Use. If you are not purchasing the Fiture Service for use by residents in a single household, and are instead purchasing the Fiture Service on behalf of or for the benefit of a commercial entity and its customers, residents, or other users at a single physical location (e.g., a gym, hotel, or apartment, condo or similar building), you will be deemed and considered a “Commercial Buyer”. If you are a Commercial Buyer, in addition to the Agreement, your purchase of the Fiture Service (including the Product and Membership) may also be governed by a separate agreement entered into between you and Fiture (the “Commercial Agreement”). The Commercial Agreement may require Commercial Buyers to purchase a commercial Membership, depending on the number of unique users that may access the Fiture Service you have purchased. The Commercial Agreement will prevail over any conflicting terms in these Terms of Service.
5.3. Shipping; Delivery. All shipping times shown on the Site are estimates only. Actual delivery dates may vary. Shipping, delivery, and installation of the Products may be performed by Fiture’s authorized third-party logistics partners and technicians (each, an “Authorized Third-Party Partner”), refer to our Shipping and Delivery Policy for how to arrange installation. Our Authorized Third-Party Partner will reach out to you to schedule a delivery date for your purchased Products. While Fiture will make a good faith effort to deliver the Products, including the Product, in a timely manner, Fiture is not responsible or liable for any delays or failure in such delivery, including without limitation, delays based on weather or other events beyond Fiture’s reasonable control. Your order will be delivered to the delivery address you specify when placing your order. Orders cannot be delivered to PO Box or similar addresses.
5.4. Installation. Any attempt to install the Product creates a risk of injury and property damage. Fiture recommends that the installation of the Product be performed by an Authorized Third-Party Partner. Fiture will not provide any refund or reduction in fees for installation by anyone other than Fiture’s Authorized Third-Party Partners. Fiture will not be responsible for any damage or injury caused by unauthorized installation or self-installation. You may send a request for installation to support@fiture.com. You acknowledge and agree that the Product is highly recommended to be mounted to a wall and that, although Fiture’s Authorized Third-Party Partner will use commercially reasonable efforts to limit damage during the installation, there may be damage to the wall, paint, or structure and that you are fully responsible for any such damage. Under no circumstance will Fiture be responsible for any damage or injury caused as a result of the performance of installation of the Product.
5.5. Relocation. Any attempt to relocate the Product creates a risk of injury and property damage, and FITURE WILL NOT PROVIDE ANY RELOCATION SERVICE.
5.6. Repair. Any attempt to repair the Product creates a risk of injury and property damage. We recommend that all repairs to the Product, whether or not covered by Fiture’s Limited Warranty , shall be performed by one of Fiture’s Authorized Third-Party Partners. You may contact us at support@fiture.com for a list of and contact information for our Authorized Third-Party Partners. YOU ACKNOLWEDGE THAT ANY OUT-OF-WARRANTY REPAIR OF THE PRODUCT PERFORMED BY ANY AUTHORIZED THIRD-PARTY PARTNER IS SUBJECT TO YOUR AGREEMENT WITH SUCH AUTHORIZED THIRD-PARTY PARTNER (INCLUDING FEES CHARGED BY THEM). Fiture will not provide any refund or reduction in fees for any Product that is damaged as a result of any attempted repair by anyone other than Fiture’s Authorized Third-Party Partner with respect to an in-warranty repair.
5.7. YOU ACKNOLWEDGE AND AGREE THAT YOU, THE APPLICABLE AUTHORIZED THIRD-PARTY PARTNER, AND/OR ANY OTHER THIRD-PARTY YOU ENGAGE TO ASSIST YOU, AND NOT FITURE, IS RESPONSIBLE FOR ALL INJURIES, INCLUDING DEATH, TO YOURSELF OR OTHERS, AND ALL DAMAGES TO PROPERTY, INCLUDING THE PRODUCT, OF ANY NATURE CAUSED BY OR RESULTING FROM: (A) THE INSTALLATION OF THE PRODUCT; (B) ANY RELOCATION (OR ATTEMPT) OF THE PRODUCT; (C) AND ANY REPAIR (OR ATTEMPT) OF THE PRODUCT.
5.8. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT NEITHER FITURE NOR ANY AUTHORIZED THIRD-PARTY PARTNER WILL BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGE ARISING OUT OF THE INSTALLATION, RELOCATION, OR REPAIR OF ANY PRODUCT WHERE THE LOCATION AND IDENTITY OF UTILITIES CONCEALED IN OR BEHIND A WALL ARE NOT OPEN AND OBVIOUS, OR ARE NOT OTHERWISE PLAINLY MARKED AND IDENTIFIED.
5.9. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FITURE SHALL HAVE NO, AND HEREBY DISCLAIMS ALL, LIABILITY OF ANY KIND WITH RESPECT TO: (A) THE INSTALLATION OF THE PRODUCT; (B) ANY RELOCATION OF (OR ATTEMPT TO RELOCATE) THE PRODUCT; AND (C) ANY REPAIR OF (OR ATTEMPT TO REPAIR) THE PRODUCT. ALL CLAIMS FOR ANY INJURIES OR DAMAGES INCURRED DURING OR AS A RESULT OF THE INSTALLATION, ANY RELOCATION, OR ANY REPAIR OF THE PRODUCT MUST BE BROUGHT BY YOU DIRECTLY AGAINST THE APPLICABLE AUTHORIZED THIRD-PARTY PARTNER OR OTHER THIRD-PARTY YOU ENGAGE TO ASSIST YOU, AND NOT AGAINST FITURE.
6. FEES AND PAYMENT TERMS
6.1. Payment. You agree to pay us, through our payment processor or financing party (as applicable), for all Products and Membership orders in accordance with the prices and billing and payment terms in effect at the time the order is made. To submit an order for a Products or Membership, you must provide valid payment information, such as a credit card number (Visa, MasterCard or any other issuer accepted by us), its expiration date, and your billing address. By providing your payment information, you agree that Fiture is authorized to invoice your payment method for all fees and other charges as they become due and payable to Fiture hereunder and that no additional notice or consent is required. You agree to immediately notify Fiture of any change in your billing address, debit card, or credit card used for payment.
6.2. Taxes. Unless otherwise specified at the time of purchase, all applicable shipping and handling costs, taxes and other charges, if any, are in addition to the prices shown for the Products and Memberships on the Site. If any order or payment under the Agreement is subject to Sales Tax in any jurisdiction, you will be responsible for such Sales Tax and Fiture will include the Sales Tax within the schedule of fees owed by you. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds that is the functional equivalent of a sales tax.
6.3. Financing Purchase. If you finance the purchase of your Product, you agree to abide by the terms of your financing agreement with the financing party that governs your purchase. Unless otherwise specified at the time of purchase, if you finance the purchase of a Product your Commitment Period (as defined in the Membership Terms and Conditions) will be equal to the length of the financing. In addition, you agree to supply Fiture with a credit or debit card prior to the end of your Commitment Period or your Membership will terminate at the end of your Commitment Period.
6.4. Bill Inquiries and Refunds. If you believe you have been billed in error for a Membership or other Fiture Service, please notify us within thirty (30) days of the billing date by contacting us at order@Fiture.com. Fiture will not issue refunds or credits after the expiration of this 30-day period, except where required by applicable law or otherwise expressly permitted in our Return Policy.
6.5. Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per payment. Only Promo Codes sent to you through official Fiture communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
6.6. Memberships. PPlease see the Membership Terms and Conditions for additional fee and payment terms and conditions relating to your Membership. In the case of any conflicts between this Section 6 and the Membership Terms and Conditions regarding your Membership, the Membership Terms and Conditions shall prevail.
7. SUBMISSIONS; CONTENT
7.1. User Content. Any video, image, graphics, photos, text, audio recording, content, materials, information, data, messages, tags, or other materials and works that a user uploads, posts, e-mails, transmits or otherwise made available through the Fiture Service, especially any audio or video feed content transmitted through the Fiture Service when your Product camera is on (“User Content”). Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You acknowledge that all content, including User Content, accessed by you using the Fiture Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any content, including without limitation User Content, that you make available or access on or through the Fiture Service.
You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. As between you and Fiture, you own all your User Content. When you make available your User Content on or in the Fiture Service, you represent that you own or have the right to use and make available your User Content. Please remember that other users may search for, see, hear and use any of your User Content that you submit to any “public” area of the Fiture Service or make available using your Product camera or any other content sharing feature of the Fiture Service. Fiture has no control over and is not responsible for any use or misuse by any third-party of your User Content. You acknowledge that all User Content made available by you through Fiture Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. Any of your User Content that you make available may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Fiture in its sole discretion. Before using your Product camera, you are responsible for telling anyone within range of your Product’s camera, including members of your household and guests, that they may be seen by Fiture and other users of the Fiture Services. You may not post or submit a photograph of another person, or otherwise make available any of your User Content that includes the likeness of or audio or video content including another person without that person’s permission (or, if that person is minor, without the permission of his or her parent or legal guardian). If you permit any minors to be within range of your Fiture fitness mirror’s camera or microphone while you’re using the fitness mirror, you consent on their behalf, to the fullest extent permitted by law, to our use of their likeness and any other information collected through your Product camera or microphone in accordance with the Agreement and our Privacy Noticeprivacy.
If properly notified that any of your User Content infringe a third-party’s copyright, Fiture will promptly remove such content from the Fiture Site in accordance with the U.S. Digital Millennium Copyright Act, or equivalent laws which are applicable in other jurisdictions. In addition, Fiture may, when appropriate, terminate the accounts of repeat copyright infringers.
7.2. License to your User Content. Subject to any applicable account settings that you select, you grant Fiture a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right (including any moral rights) to use, copy, record transmit, distribute, perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for the purposes whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.
Notwithstanding anything contained herein to the contrary, by submitting your User Content to any forums, comments, or any other public area on the Fiture Service, you hereby expressly permit Fiture to identify you by your username (which may be a pseudonym) as the contributor of your User Content in any publication in any form, media, or technology now known or later developed in connection with your User Content.
If you make suggestions to Fiture or through the Fiture Service about improving or adding new features, products, services, or functionality to the Fiture Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant Fiture a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works based upon, and otherwise commercially or non-commercially exploit your suggestion, feedback, reviews and testimonials without any notice, compensation or other obligation to you. You represent and warrant that you have all rights necessary to submit the suggestion, feedback, reviews and testimonials. You agree that submission of any suggestion, feedback, reviews and testimonials is at your own risk and that Fiture has no obligations (including without limitation obligations of confidentiality or any fiduciary or other obligations) with respect to such suggestion, feedback, reviews and testimonials.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Fiture Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
8. INTELLECTUAL PROPERTY OWNERSHIP
8.1. Fiture Intellectual Property: Except with respect to your User Content and other User Content, you acknowledge and agree that Fiture and its suppliers own all right, title, and interest in and to the Fiture Service, the content (including any audio-visual or static content that is generated by Fiture), Trademarks (as defined below), copyrights, patents, and any other audio-visual or static content, photographs, audio, images, illustrations, graphics, software, features, code, data, materials and information displayed on or otherwise made available through the Fiture Service, other than content that has been licensed to us by third parties (collectively, “Fiture IP”). This includes all intellectual property and proprietary rights in and to such Fiture IP.
The Fiture name and logos and all affiliated properties, graphics, trademarks, service marks, trade dress, trade names, and designs used on or in connection with the Fiture Service (collectively, “Trademarks”) are the exclusive property of Fiture, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product, or service. Nothing contained on the Fiture Service or in the Agreement should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our Trademarks or other intellectual property without our express prior written consent.
Any other trademarks appearing on the Fiture Service are trademarks of their respective owners and their use is similarly restricted. Our partners or service providers may also have additional proprietary rights in the content that they make available through the Fiture Service. All rights not expressly granted in the Agreement are reserved.
8.2. User’s Copyright: Fiture respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe or misappropriate any third-party copyright or other intellectual property rights.
It is Fiture’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Fiture by the copyright owner or the copyright owner’s legal agent.
The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their right under U.S. copyright law. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice (“Notice of Copyright Infringement”) containing the following information:
a) Your name, address, telephone number, and email address.
b) A description of the copyrighted work that you claim has been infringed.
c) A description of where on the Fiture Site the material that you claim is infringing may be found, sufficient for Fiture to locate the material (e.g., the URL).
d) A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
e) A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
f) Your electronic or physical signature.
If you believe in good faith that someone has wrongly filed a Notice of Copyright Infringement against you, the DMCA permits you to send to us a counter notice.
You may submit the Notice of Copyright Infringement and any counter notice (collectively, “DMCA Notice”), with the subject line “DMCA Notices” to us at support@fiture.com.
Fiture may disclose any communications concerning DMCA notices or other intellectual property complaints to third parties as appropriate, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information.
9. USER CONDUCT
In using the Fiture Service, you must behave in a civil and respectful manner at all times and agree not to do any of the following:
a) Post, upload, publish, submit or transmit any User Content or engage in any activity that:
b) Attempt to engage in or engage in any potentially harmful acts that are directed against the Fiture Service, including but not limited to violating or attempting to violate any security features of the Fiture Service, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Fiture Service, introducing viruses, worms, or similar harmful code into the Fiture Service, or interfering or attempting to interfere with use of the Fiture Service by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Fiture Service.
c) Download and/or install any third-party software and/or application on any Fiture hardware that is not expressly permitted by Fiture in writing.
d) Use, display, mirror or frame the Fiture Service or any individual element within the Fiture Service, Fiture’s name, any Fiture trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fiture’s express written consent.
e) Use the Fiture Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third-party or in any manner not permitted by the Agreement or permitted expressly in writing by Fiture.
f) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Fiture Service or Content.
g) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Fiture Service.
h) Collect or store any personally identifiable information from the Fiture Service from other users of the Fiture Service without their express permission.
i) Copy, use, index, disclose or distribute any information or data obtained from the Fiture Service, whether directly or through third parties (such as search engines), without Fiture’s express written consent.
j) Alter, replicate, store, distribute or create derivatives from the Content available via the Fiture Service except as expressly permitted in writing by Fiture.
k) Impersonate or misrepresent your affiliation with any person or entity.
l) Access, use or exploit the Fiture Service in any manner (other than as expressly permitted by the Agreement), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Fiture or the Fiture Service.
m) Violates or is prohibited by any applicable law.
n) Encourage or enable any other individual to do any of the forementioned.
10. INVESTIGATION; RESERVATION OF RIGHTS
Although Fiture does not generally monitor user activity occurring in connection with the Fiture Service or User Content, Fiture does reserve the right to monitor all conduct on and content submitted to the Fiture Service and investigate any possible violations of the Agreement or applicable laws or regulations.
Fiture reserves the right to: (a) remove, modify or refuse to post any of your User Content for any or no reason in our sole discretion; (b) take any action with respect to any of your User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates the Agreement, infringes or otherwise violates any intellectual property, proprietary, privacy, or publicity rights of any person or entity, threatens the personal safety of users of the Fiture Service or the public, or could create liability for Fiture; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Fiture Service; and (e) terminate or suspend your access to all or part of the Fiture Service for any or no reason, including without limitation, any violation of the Agreement.
Fiture is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Fiture Service, including your User Content, in Fiture’s possession in connection with your use of the Fiture Service, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that your User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Fiture, its users or the public, and all enforcement or other government officials, as Fiture in its sole discretion believes to be necessary or appropriate.
11. USER INTERACTIONS
You are solely responsible for your interactions with other Fiture Service users and any other party with whom you interact; provided, however, that Fiture reserves the right, but has no obligation, to intercede in disputes between you and such third parties. When interacting with other Fiture users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence, or personal or business dealings with any third-party found on or through the Fiture Service, whether regarding payment or delivery of specific products and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third-party/parties. You agree that Fiture is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings and interactions.
The Fiture Service may contain User Content provided by other users. Fiture is not responsible for and does not control User Content. Fiture has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
12. DEALING WITH THIRD PARTIES
12.1. Third-Party Payment Services. Fiture uses Stripe, Inc. and its affiliates as its third-party provider for payment services (e.g., card acceptance, merchant settlement, and related services). By buying any Fiture Service, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize Fiture and Stripe to share any information and payment instructions you provide to the minimum extent required to complete your transactions.
12.2. App Stores. You acknowledge and agree that the availability of the Application and the Fiture Service is dependent on the third-party from whom you received the Application license, e.g., the Apple App Store, the Google Play Store (the “App Store”). You acknowledge and agree that:
a) The Agreement are between you and Fiture and not with the App Store, and Fiture, not the App Store, is solely responsible for the Fiture Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).
b) In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App.
c) In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store and the App Store will refund the purchase price for the App to you (if applicable) and to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the App. As between Fiture and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Fiture.
d) The App Store is not responsible for addressing any claims you have or any claims of any third-party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e) In the event of any third-party claim that the App or your possession and use of that App infringes that third-party’s intellectual property rights, as between Fiture and the App Store, Fiture, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
f) The App Store and its subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App, and that, upon your acceptance of the Agreement, the App Store will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.
g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of service when using the App.
12.3. Third-Party Software and Applications. Downloading and/or installing any third-party software and/or applications that are not expressly authorized by Fiture on the Product or any Fiture hardware is strictly forbidden; any such downloading or installation is done at your own risk and will void any applicable warranty or support commitments by Fiture.
12.4. Third-Party Links, Content, and Materials. There may be links on the Fiture Service that let you leave the particular Fiture Service you are accessing in order to access a linked site that is operated by a third-party. Fiture will not warn you that you have left the Fiture Service and that you are then subject to the terms and conditions (including privacy policies and notices) of another site or destination. Fiture neither controls nor endorses these sites, nor has, nor will, Fiture review, approve, monitor, warrant, or make any representations with respect to the third-party sites, the content that appears on them, or any product or service provided in connection with them. You use all links at your own risk, and you acknowledge and agree that Fiture is not responsible or liable, directly or indirectly, for the legality, accuracy, or inappropriate nature of any content, advertising, products, services, or other materials on or available from any such third-party sites, or for any damage or loss caused or alleged to be caused by or in connection with the access or use of such third-party sites. When you leave the Fiture Service, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third-party sites and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
13. TERM AND TERMINATION
13.1. Term. The Agreement commences on the date when you accept it (as described in the preamble above), or on the date you first used the Fiture Service if earlier, and remains in full force and effect while you use any of the Fiture Services unless terminated earlier in accordance with the Agreement.
13.2. Termination. Fiture may, in Fiture’s sole discretion, suspend, disable, or delete your Membership and/or Account (or any part thereof) or block or remove any of any User Content that you submitted, for any lawful reason, including if Fiture determines, in its sole discretion, that you have violated the Agreement or that your conduct or your User Content would tend to damage Fiture’s reputation or goodwill. You may terminate this Agreement by canceling your Membership in accordance with the Membership Terms and Conditions.
13.3. Effect of Termination / Account Deletion. Upon termination of the Agreement, all licenses granted by Fiture and your right to use the Fiture Service will automatically terminate. In the event of account deletion for any reason, your User Content may no longer be available and Fiture is not responsible for the deletion or loss of such User Content. For clarity, if you or the administrator of your Membership, cancels your Membership or it is terminated for any other reason, you will only have access to your previous workout history (including historical data, usage records, etc.) and no longer have access to all live and on-demand classes, and any other content or features provided through the Fiture Service. All provisions of the Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, Privacy (section 3), Submissions; Content (section 7), Intellectual Property Ownership (section 8), Indemnification (section 14), Safety Warnings (section 16), Limitation of Liability (section 17), Arbitration Clause & Class Action Waiver (section 18), Governing Law (section 19), and all general provisions.
13.4. No Subsequent Registration. If your registration(s) with, or ability to access, the Fiture Service or any other Fiture services or community, is discontinued by Fiture due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Fiture Service or any other Fiture service or community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Fiture Service to which your access has been terminated. In the event that you violate the immediately preceding sentence, Fiture reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Fiture and our directors, officers, employees, suppliers, other customers, and agents (collectively “Fiture Parties”) from and against all claims, damages, losses, and costs (including reasonable attorneys’ fees) that arise from or relate to;
a) your use of, or inability to use, the Fiture Service;
b) any User Content submitted by or on behalf of you;
c) your violation of the Agreement;
d) your violation of any rights of another party, including another user of the Fiture Service; or
e) your violation of any applicable laws, rules, or regulations.
Fiture reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fiture in asserting any available defenses. This provision does not require you to indemnify any of the Fiture Parties for any unconscionable commercial practice by such Fiture Party or for its fraud, deception, false promise, misrepresentation, concealment, suppression or omission of any material fact in connection with the Fiture Service.
15. NO WARRANTIES
You acknowledge that descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to change at any time, in Fiture’s sole discretion and without notice. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors and sizes; however, the actual color and size you see will depend on your mobile device, and we cannot guarantee that your mobile device will accurately display such colors or sizes. The inclusion of any Products on the Fiture Service at a particular time does not imply or warrant that these Products will be available at any time. Fiture has no obligation to screen or monitor any content and does not guarantee that any content available on the Fiture Service is suitable for all users or that it will continue to be available for any length of time.
Fiture provides the Fiture Service on an “AS IS” and “AS AVAILABLE” basis, with all faults, and your use of the Fiture Service is at your own and sole risk. No advice or information, whether oral or written, provided by Fiture or a Fiture instructor will create any warranty not expressly made herein. OTHER THAN AS EXPRESSLY PROVIDED IN WRITING BY FITURE IN CONNECTION WITH YOUR PURCHASE OF A FITURE PRODUCT (FOR EXAMPLE, THE FITURE FITNESS MIRROR), TO THE EXTENT PERMITTED BY LAW, FITURE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USAGE OF TRADE AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDER ANY LAW WITH RESPECT TO THE FITURE SERVICE AND THE CONTENT OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. This Section does not affect in any way our Return Policy or Limited Warranty. If for any reason you are not satisfied with a purchase you make on the FITURE Site, please refer to the terms of our Return Policy or Limited Warranty as applicable.
Without limiting the foregoing, Fiture makes no representations or warranties:
From time to time, Fiture may offer new “beta” features or tools that its users may test and evaluate. Such features or tools are offered solely for evaluation purposes and without any warranty of any kind and may be modified or discontinued at Fiture’s sole discretion.
Some US jurisdictions do not allow or limit the exclusion of certain warranties, so the disclaimers and limitations above may not apply to you to the extent applicable law so requires.
TO THE EXTENT THE DISCLAIMER OF ANY WARRANTY STATED HEREIN DOES NOT APPLY DUE TO AN APPLICABLE LEGAL REQUIREMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, SUCH WARRANTY WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE APPLICABLE FITURE SERVICE, AND NO SUCH WARRANTY SHALL APPLY AFTER SUCH PERIOD.
16. SAFETY WARNINGS
16.1. Professional Advice Disclaimer. THE FITURE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN OR VIA THE FITURE SERVICE, INCLUDING INFORMATION AND PROGRAMS TAILORED SPECIFICALLY FOR YOU, AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE FITURE SERVICE OR COMMUNICATED TO YOU THROUGH THE FITURE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE FITURE SERVICE IS SOLELY AT YOUR OWN RISK.
OR COUNSELING CARE. FOR PURPOSES OF THE AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE FITURE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND FITURE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS ON THE FITURE SERVICE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE FITURE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
16.2. Unsuitable Usage Disclaimer. The Product should be stored in a dry, ventilated environment. Water may cause short circuit and damage on the Product. The Product is for indoor home use only, and should not be used outdoors nor in harsh environments where it may be exposed to rain, thunder and lightning, sand, fog, snow, hail, gust, or low temperatures. Please unplug your Product under extreme weather condition to avoid damage. If noise, smell or any abnormal condition occurs during usage, please unplug your Product and contact Fiture Customer Service. Please only use the power cord packed with the Product and connect to nationally certified power socket to avoid damage. Please avoid usage in the environment with a strong electromagnetic field. Please follow the applicable User Manual to install the Product and ensure that there are no objects that may affect the stability of the Product or cause damage. Please avoid any object or any external force (including but not limited to hit, impact, press and scratch) from damaging the Product’s screen. Please ensure no minors or pets play, chase, run or jump around the Product and do not push, touch or hit the Product in any way to avoid damage of the Product or cause of injury.
16.3. Medical Disclaimer. In using the Fiture Service, you affirm that either your physician has approved your use of the Fiture Service or that all of the following statements are true: (i) you are not over 65 years old; (ii) you are not during pregnancy, breastfeeding or lactating; (iii) no physician has ever informed you that you have a heart condition, chronic disease or that you should only do physical activities recommended by a physician; (iv) you have never felt chest pain when engaging in physical activity; (v) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (vi) you have never lost your balance because of dizziness and you have never lost consciousness as a result of exertion;(vii) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (viii)your physician is not currently prescribing drugs for your blood pressure or heart condition; (ix) you do not have a history of high blood pressure; and (x) you do not know of any other reason stopping you from doing exercise. You are responsible for providing accurate information and disclosing any health or medical issues.
Fiture reserves the right to refuse or cancel your membership or deny you access to a Fiture Service if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
17. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FITURE (AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS) WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, INABILITY TO USE THE FITURE SERVICE OR OTHER INTANGIBLE LOSSES OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (IN EACH CASE WHETHER OR NOT FITURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE FITURE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITY OR DAMAGE ARISING OUT OF ANY PRODUCT, THE CONTENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE FITURE SERVICE, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF FITURE (AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS) TO YOU OR ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE FITURE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITY OR DAMAGE ARISING OUT OF ANY PRODUCT, THE CONTENT OR ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS, WILL NOT EXCEED, IN THE AGGREGATE (FOR ALL CLAIMS), THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO FITURE OVER THE TWELVE (12) MONTHS PRECEDING THE DATE YOUR FIRST CLAIM AROSE, AND (B) FIVE HUNDRED DOLLARS ($500).
Except for Fiture’s obligations to protect your personal data as set forth in the Fiture’s Privacy Notice, Fiture assumes no responsibility or liability for the timeliness, deletion, mis-delivery, or failure to store any content (including, but not limited to, your User Content and any other User Content), user communications or personalization settings.
Nothing in the Agreement and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law. If you live in a jurisdiction that does not allow certain exclusions or limitations of liability, certain of the above exclusions or limitations may not apply to you. For example, this limitation of liability shall not apply to any willful, wanton, intentional or reckless misconduct of Fiture or gross negligence of Fiture in those states that do not permit limitation of liability for such misconduct or gross negligence. To the extent that any aspect of the limitations set forth above does not apply under law, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Fiture and you.
18. ARBITRATION CLAUSE & CLASS ACTION WAIVER– IMPORTANT – PLEASE REVIEW THIS SECTION CAREFULLY AS THIS MAY AFFECT YOUR LEGAL RIGHTS. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. THIS SECTION IS APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
18.1. Mandatory Arbitration of Disputes. You and Fiture each agree that any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Fiture Service, or any Products sold or distributed through the Fiture Service, or to any aspect of your relationship with Fiture (collectively, “Disputes”) will be resolved solely and exclusively by binding, individual arbitration and not in a class, representative or consolidated action or proceeding, except that (a) you and Fiture may each assert claims or seek relief in small claims court if such claims or relief qualify; (b) you and Fiture may each seek an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction, (c) each party may bring issues to the attention of federal, state or local governmental agencies (and such agencies can, if the law allows, seek relief against the applicable party); and (d) you or Fiture may seek injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights or confidential information (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Subject to the foregoing specific exceptions, the terms and conditions of this entire Section 18 (ARBITRATION CLAUSE & CLASS ACTION WAIVER) (the “Arbitration Agreement”) shall apply, without limitation, to all disputes or claims and requests for relief that (i) arose or were asserted before the effective date of the Agreement or any prior version of the Agreement, and/or (ii) are brought by or against our respective subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns of Fiture or these entities.
18.2. Arbitration Rules and Forum. The U.S. Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement as the overall Agreement evidences a transaction in interstate commerce. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to Fiture Holding LLC, 873 Broadway, Unit 205, New York, NY, 10003. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, with a single arbitrator. Fiture may initiate an arbitration proceeding against you by providing you with notice of the Dispute, which notice may be provided to your account contact information on file with Fiture. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will utilize the American Arbitration Association (“AAA”) under the AAA’s then-current rules, or if the AAA is also not available, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, or hearing fees and cannot obtain a waiver from JAMS, Fiture will pay them for you. You may choose to have the arbitration conducted by telephone, video or online conferencing based on written submissions, or at a mutually agreed location. To the extent the arbitration is to be held in-person and the parties have not mutually agreed to a location (or such consent is otherwise required for the arbitration to proceed), you hereby consent to the jurisdiction and venue of both New York City, New York for purposes of holding, administering and enforcing arbitration proceedings hereunder. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
18.3. Authority of Arbitrator. The arbitration will decide the rights and liabilities, if any, of you and Fiture with respect to any Dispute. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or other Dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.4. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND FITURE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY WITH RESPECT TO ANY DISPUTES. You and FITURE are instead electing that all claims, or requests for relief or other Dispute shall be resolved by arbitration under this Arbitration Agreement, except as specified under the “Mandatory Arbitration of Dispute” section above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow the Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5. Waiver of Class Action or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given Dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
18.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to support@fiture.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fiture username (if any), the email address you used to set up your Fiture Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. If you do not notify Fiture of your decision to opt out in accordance with the foregoing, you agree to be bound by the arbitration and waiver provisions of this Arbitration Agreement.
18.7. Severability. Except as provided under the “Waiver of Class or Other Non-Individualized Relief” section above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fiture, including without limitation any termination of this Agreement.
18.9. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Fiture makes any future material change to this Arbitration Clause, you may reject that change within thirty (30) days of such change becoming effective by sending an email to Fiture at support@fiture.com.
19. GOVERNING LAW
The Agreement and any claim or request for relief or other Dispute relating in any way to the Agreement or its subject matter will be governed by the laws of State of New York, United States of America, without giving effect to any conflicts of law or choice of law rules or principles that would require the application of the law of any other jurisdiction. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply to this Agreement or its subject matter and are all hereby excluded and disclaimed. Subject to the Arbitration Agreement in Section 18, any other action arising out of or relating to the Agreement or your use of the Fiture Service must be commenced in the state or federal courts located in New York, United States of America, and you hereby consent to the jurisdiction and venue of those courts.
20. GENERAL PROVISONS
20.1. Interpretation; Severability; Waiver; Remedies. Headings are for convenience only and will not be used to construe the terms of the Agreement. If any term of the Agreement is found invalid or unenforceable by any court or arbitrator of competent jurisdiction, that term will be severed from the Agreement to the extent of such invalidity or unenforceability and the remainder of this Agreement shall remain in full force and effect. No failure or delay by Fiture in exercising or enforcing any right, provision or remedy hereunder will constitute a waiver thereof or waive any further exercise or enforcement of that right, provision or remedy. All waivers by Fiture must be in writing signed by an authorized representative of Fiture to be effective hereunder. Fiture 's rights and remedies hereunder are cumulative and not exclusive.
20.2. Successors; Assignment; No Third-Party Beneficiaries; Independent Contractors. The Agreement is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign, delegate or transfer the Agreement without Fiture’s prior written consent. Any purported assignment or delegation by you without the appropriate prior written consent of Fiture will be null and void. Unless explicitly stated otherwise, no third-party has any rights hereunder. Fiture may assign its rights and/or obligations hereunder, and/or the Agreement, at any time in its sole discretion without notice to you. You and Fiture are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
20.3. Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from Fiture electronically. Fiture may communicate with you by email, through your account with Fiture (if any) by posting to the Fiture Service or other reasonable manner. For support-related inquiries, you may email hello@Fiture.com. For all other notices to Fiture, you must write to the following address:
Attn: Legal at Fiture Holding LLC
Fiture Holding LLC
21-10 51st Ave,
Long Island City,
NY
11101
Nothing in the Agreement or otherwise limits Fiture’s right to object to subpoenas, claims, or other demands. For contractual purposes, you (a) consent to receive communications from Fiture in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fiture provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C.§7001 et seq. (“E-Sign”).
20.4. Force Majeure. Fiture shall not be liable for any delay or failure to perform or comply with its obligations under this Agreement resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, pandemics, epidemics, or governmental orders.
20.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Fiture Service, please contact us at: Fiture Holding LLC, us-legal@Fiture.com, Attn: Legal at Fiture Holding LLC. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. If you are a resident of California, USA, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them, in writing, at 400 R Street, Sacramento, CA 95814, USA, or by telephone on (800) 952-5210.
20.6. Export Control. By using the Fiture Service, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Fiture are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fiture fitness mirrors, Products, Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
20.7. Entire Agreement. The Agreement incorporates this Fiture Terms of Service document, any Supplemental Terms and the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Fiture Service from time to time:
Membership Terms and Conditions
If there is a conflict between any policies or procedures posted on the Fiture Service and the terms of this Terms of Service document or the legal documents listed above, the terms of this Terms of Service document will control and take precedence, followed by the legal documents listed above in the order listed. The Agreement represents the entire understanding and agreement between Fiture and you with respect to the subject matter hereof and supersedes all prior agreements, arrangements and understandings regarding the same.