December 9, 2020
www.fitnesssuperstore.com (“Website”). Fitness Superstore, Inc. (“We,” “Us,” or “Our”) owns and operates the Website.
Terms and Conditions ("Agreement") is a legal agreement that explains the terms and conditions that all visitors, users, clients and customers (“You” or “Your”) must comply with when using the Website. By using the Website, You agree to abide by this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY because it affects Your rights and liabilities under the law. By using or accessing the Website, You confirm that You have read and agreed to be bound by this Agreement. If You do not agree with this Agreement, You cannot use or access
Account" refers to the account that You have to create on the Website to log in, use, and access some parts of the Website.
1.2. "Content" is the information displayed at the Website including without limitation text, data, code, images, photographs, graphics, software, designs and any other materials that are available at the Website.
1.3. "Products" means all goods and Products that We make available to You on the Website.
1.4. "Party" refer to either You, or Us, or any other party to this Agreement. "Parties" refer to both You and Us.
1.5. "Services" refer to any work We perform for You.
1.6. "User Content" refers to the content which has been created by Our users.
1.7. "You" and “Your" refer to the visitor, user, client, customer or person accessing the Website and thus accepting this Agreement.
2. YOUR ACCOUNT
2.1. To use the Website, You will:
2.1.1. provide true, accurate, current and complete information about Yourself as prompted by the Website's login page (such information being the “Account Information”); and
2.1.2. maintain and promptly update the Account Information to keep it true, accurate, current and complete.
2.2. You are entirely responsible for the security and confidentiality of Your password and Account. You will not share Your Account Information or Your username and password with any third party or permit any third party to login to the Website using Your Account Information. Furthermore, You are entirely responsible for any and all activities that occur under Your Account. You are responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Website.
2.3. You agree to immediately notify Us of any unauthorized use of Your Account or any other breach of security of which You become aware.
2.4. The Website may also include a tool that allows You to sign in or register using information from Your accounts in third party services, such as Facebook, Twitter, Google, or Pinterest. These third-party services are not related to the Website, and Your use of such third-party services is subject to the terms and policies of those services.
3. OUR CONTENT
3.1. Except for User Content as defined in Section 5 below, all of the content featured or displayed on the Website, including, without limitation, text, graphics, photographs, images, moving images, sound, and illustrations (“Our Content”) are owned by Us, Our licensors, vendors, agents and/or Our content providers. All elements of the Website, including without limitation the general design and Our Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights.
3.2. The Website, Our Content and all related rights shall remain Our exclusive property or of Our licensors unless otherwise expressly agreed.
3.3. You will not remove any copyright, trademark or other proprietary notices from Our Content.
3.4. Except as may be otherwise indicated in specific documents within the Website or as permitted by copyright law, You are authorized to view, play, print and download copyrighted documents, audio and video found on Our Website for personal, informational, and noncommercial purposes only.
3.5. Except as permitted by copyright law, You may not modify any of the materials and You may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Website.
4. TRADEMARKS/NO ENDORSEMENT
4.1. All of Our trademarks, service marks and trade names used herein (including but not limited to: the “Fitness Superstore” name, Fitness Superstore logo, the Website name, the Website design, and any logos) (collectively “Marks”) are Our trademarks or registered trademarks or of Our affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Our trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Website, without Our prior written consent. The use of Our trademarks on any other site or network computer environment is not allowed. We prohibit the use of Our trademarks as a “hot” link on or to any other site, unless We have approved in advance the establishment of such a link. You shall not use Our name or any language, pictures or symbols which could, in Our judgment, imply Our endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
5. USER CONTENT
5.1. You may be able to submit or otherwise make available testimonials, reviews, messages, e-mails, photographs, videos and other content for display on the Website ("User Content") as dictated by the functionality of the Website.
5.2. You shall be solely responsible for Your own User Content and the consequences of posting or publishing them. The Website merely acts as a passive conduit for Your online distribution and publication of User Content.
5.3. Without limiting any of Our rights in law and equity, We reserve the right to remove any User Content for any reason in Our sole discretion, including any User Content that We believe may violate this Agreement, or any copyright or third-party rights.
5.4. By submitting User Content, You automatically warrant and represent to Us that You are the owner of all intellectual property rights in and to the User Content or that You otherwise have all sufficient rights to grant the license above. You further warrant and represent that the User Content infringes no third-party right of privacy, right of publicity, or any other third-party right or proprietary interest.
5.5. By submitting or otherwise making available any User Content on the Website, You automatically grant Us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, sublicensable (through multiple tiers), license to use, modify, copy, distribute, transmit, publicly display, publicly perform, publish, adapt, create derivative works of, distribute, transfer or sell any such content, for any purpose, including commercial purposes and in connection with advertising for the sole benefit of the Website, in any type of media or in any form now known or later developed, without any payment to You. In addition, You automatically waive and give up any claim that any use of such content violates any of Your rights, including privacy rights, publicity rights, moral rights or any other right, including the right to approve the way the Website uses such content. You also grant Us and the Website the right to use any material, information, ideas, concepts, know-how, or techniques contained in any communication You provide, submit, or otherwise make available to the Website or to Us for any purpose whatsoever, including, without limitation, commercial purposes.
5.6. User Content does not represent Our views or any individual associated with Us, and We do not control User Content. In no event shall You represent or suggest, directly or indirectly, Our endorsement of User Content. We do not vouch for the accuracy or credibility of any User Content on Our Website, and do not take any responsibility or assume any liability for any actions You may take as a result of reading User Content on Our Website.
6. RIGHT TO TAKEDOWN
6.1. You shall remain solely responsible for Your User Content and We shall have no obligation to prescreen any such content. However, We shall have the right in Our sole discretion to edit, refuse to post, or remove any material submitted to or posted on the Website at any time without notice. Without limiting the foregoing, We shall have the right to remove any material that We find to be in violation of the provisions hereof or otherwise objectionable, and the additional right to deny any User who fails to conform to any provision of this Agreement access to the Website.
6.2. If You wish to remove Your User Content from the Website, please send Us an email to email@example.com. We will remove Your User Content within 14 business days of receiving Your request. However, We may retain copies of Your User Content, not accessible to the public, on Our backup servers even after You request removal.
7. ADVERTISING RIGHTS
7.1. We reserve the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with User Content. We and Our licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in this Agreement obligates or may be deemed to obligate Us to sell, license or offer to sell or license any advertising, promotion or distribution rights.
8. USE OF WEBSITE
8.1. We encourage a free and open exchange of ideas in a climate of mutual respect. Any action by a User that infringes on another user's right to use and enjoy the Website is prohibited. We reserve the right, but do not assume any obligation, to monitor Your online conduct to enforce this Agreement.
8.2. You must use the Website for lawful purposes only.
8.3. Your use and access of the Website does not include any right of resale or commercial use of the Website or its Content; any collection and use of any Product listings, descriptions, or Prices; any derivative use of the Website or its Content; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
8.4. The Website and/or any portion of the Website may not be reproduced, sold, resold, visited or otherwise exploited for any commercial purpose without Our express written consent.
9. PROHIBITED USE
9.1. You may not do (or attempt to do) any of the following:
9.1.1. Disrupt or attempt to disrupt Our servers in any way that could cause harm to the Website.
9.1.2. Distribute any material that contains software viruses or any other computer code, files, or programs that are designed or intended to: (a) disrupt, damage, or limit the functioning of the Website, any software, hardware, or telecommunications equipment used in connection therewith; or (b) damage or obtain unauthorized access to any data or other information of any third party.
9.1.3. Harass, abuse, threaten or incite violence towards any individual or group.
9.1.4. Hold Yourself out as sponsored by, endorsed by, or affiliated with Us or the Website.
9.1.5. Interfere with any other person's use of or the proper functioning of the Website.
9.1.6. Misrepresent Your identity or impersonate any person.
9.1.7. Modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Us or the Website in connection with the Website.
9.1.8. Provide any information that is false, misleading or inaccurate.
9.1.9. Use any meta tags or any other “hidden text” utilizing Our name or trademarks without Our express written consent.
9.1.10. Use any portion of the Website for any unlawful or fraudulent purpose or otherwise fail to comply with all applicable domestic and international laws, statutes, ordinances and regulations.
9.1.11. Use any portion of the Website for uploading, posting, e-mailing, transmitting or otherwise making available User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
9.1.12. Use any portion of the Website for uploading, posting, e-mailing, transmitting or otherwise making available User Content that is harmful to minors in any way, harassing, harmful, threatening, abusive, vulgar, obscene, defamatory, libelous, hateful, or racially, ethnically or otherwise objectionable.
9.1.13. Use any portion of the Website for uploading, posting, e-mailing, transmitting or otherwise making available junk mail, commercial advertisements, or any other form of commercial solicitation.
9.1.14. Violate the privacy of any third party, this includes, but is not confined to, posting personal information about another person or entity without consent.
10.1. You agree to pay for the Price
of the Products or Service that You purchased at the amount posted for such at the time of Your purchase.
10.2. We are constantly updating Our Products and Services on the Website. We make every attempt to ensure that Our online catalog is as accurate and complete as possible. Unfortunately, it is not possible to ensure that any site is completely free of human or technological errors. The Prices of Products, Products or Services available on Our Website may be mispriced, described inaccurately, or unavailable, and we may experience delays in updating information on the Website and in Our advertising on other sites. We cannot and do not guarantee the accuracy or completeness of any information, including Prices, Product images, specifications, availability, and Services.
10.3. We reserve the right to correct any errors, inaccuracies or omissions; including after an order has been submitted, and to change or update information. We will notify You of the changes through e-mail or posting on the Website whenever applicable and relevant. We will not honor inaccurate or incorrect pricing. We do not negotiate the Prices.
10.4. If a listed Price is lower than its actual Price, we will contact You prior to processing the order to confirm the correct Price. Should You not want to continue with Your order, Your order will be cancelled. You acknowledge and agree that We will not be obligated to sell the Product or Service at the lower, incorrect price.
10.5. In cases where the Price of what You purchased as shown on the Website is different from the Price on the order confirmation email You receive, the Price on such email will be the correct and final Price.
11. PAYMENT METHODS
11.1. We have engaged the services of various third-party suppliers (“
Payment Method”) to collect and manage Your payments. You acknowledge and agree that the Payment Methods will perform the following for Us:
11.1.1. credit and background verification of Our potential customers;
11.1.2. access updated payment reports;
11.1.3. credit administration, management and collection;
11.1.4. legal assistance in credit recovery;
11.1.5. assessment of Our customers’ dependability; and
11.1.6. receive, facilitate and assign Your credit that is due to Us;
11.2. The Payment Method is responsible and We shall not be liable for any matter in connection with the processing of Your payments.
11.3. You agree to notify Us or the Payment Method about any billing problems or discrepancies within the period prescribed by the Payment Method supplier. If You do not do so within the prescribed period, You agree that You waive Your right to dispute such problems or discrepancies.
12.1. You agree to provide updated information regarding Your credit card or payment method at any time the information is needed.
12.2. You warrant and represent that You have the right and authority to use the credit card or payment method You have provided.
12.3. You give Us and the Payment Method the pre-authorization to verify if Your credit card or payment method account is valid and has the necessary funds or credit available to cover Your payments.
12.4. You authorize such credit card or payment method to pay any amount described herein.
12.5. You confirm that Your credited card or payment method has sufficient funds, credit facilities and valid expiry date to cover the payment.
12.6. You will receive an electronic invoice for Your payments. This electronic invoice shall serve as Your official receipt.
12.7. In case of payment delay, You will not be able to use any chargeable features of Our Website or Service until the payment in due have been fully paid.
12.8. Upon delay with any payments, You may be required to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. We reserve the right to assess reasonable interest charges on any amounts not paid by the date such payments are due.
12.9. You are solely responsible for any and all fees charged to Your credit card or payment method by the issuer, bank, or financial institution including, but not limited to, subscription, overdraft, insufficient funds, and over the credit limit fees.
12.10. All orders are subject to Our credit approval. We reserve the right to withhold shipment or to require other adequate assurances of performance of Your payment obligations as We, in Our discretion, may require, notwithstanding any order confirmation issued by Us.
12.11. All payments shall be paid in US Dollars. You may have to incur costs for conversion and transfer of money if applied by Your financial service provider.
12.12. All Prices exclude taxes at current legal rate in U.S.A., unless stated otherwise in this Agreement. You are responsible for all other applicable taxes, and We shall charge taxes when required to do so.
12.13. Other payment methods are accepted only if provided on Our Website.
13. ADDITIONAL SHIPPING & DELIVERY COSTS
13.1. The costs on our website assume that the customer has provided us with accurate shipping & warranty details, accurate installation details, and is able to receive the equipment within 5 business days of our shipper attempting to make contact with our customer using the 'primary phone number' and 'alt phone number' on file.
The following situations will cause additional charges to incur:
13.2. Making an appointment for delivery and waiting until the truck is loaded to cancel, or failing to cancel.
13.3. Making a delivery appointment and being late for delivery, causing the shipper to have to wait and accumulate idle time.
13.4. Not being able to receive the equipment within 5 business days of the shipper attempting to make contact - leading to storage fees. These fees can be enormous.
13.5. Providing inaccurate house measurements, or inaccurate information about delivery requirements, or providing insufficient information that leads to a failed delivery, or extra time spent on site.
13.6. Fitness Superstore, Inc. reserves the right to assess additional bills to the customer for any of the reasons above.
14. ADDITIONAL WARRANTY COSTS
14.1. Making an appointment for a service call and waiting until the service provider is in transit to cancel, or not cancelling at all.
14.2. Mislocating parts sent, or any cause on the customers part which causes the service provider to waste time or a trip
14.3. Not being on site or not being able to allow the service provider to work on the equipment when the provider shows up for an appointment, causing the service provider to accumulate idle time
14.4. Providing inaccurate address info, causing the reshipment of parts
14.5. Losing parts, or not sending parts back when asked to do so
14.6. Fitness Superstore, Inc. reserves the right to assess additional bills to the customer for any of the reasons above.
15. DIGITAL MILLENIUM COPYRIGHT ACT ("DMCA") NOTICE
15.1. In operating the Website, We may act as a “Service Provider” (as defined by DMCA) and offer services as online provider of materials and links to third party site. As a result, third party materials that We do not own or control may be transmitted, stored, accessed or otherwise made available using the Website. We have placed certain legally mandated procedures regarding allegations of copyright infringement occurring on the Website. We have adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on Our rights or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of this Agreement.
15.2. Notice. If You believe any material available via the Website infringes a copyright, You should notify Us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content. Our designated agent (i.e., proper party for notice) to whom You should address infringement notices under the DMCA is FITNESS SUPERSTORE, INC, 537 Stone Rd. STE F, Benicia, CA 94510, +1-925-215-2927, firstname.lastname@example.org.
15.3. Please provide the following notice:
15.3.1. Identify the copyrighted work or other intellectual property that You claim has been infringed;
15.3.2. Identify the material on the Website that You claim is infringing, with enough detail so that We may locate it on the Website;
15.3.3. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
15.3.4. A statement by You declaring under penalty of perjury that (a) the above information in Your notice is accurate, and (b) that You are the owner of the copyright interest involved or that You are authorized to act on behalf of that owner;
15.3.5. Your address, telephone number, and email address; and
15.3.6. Your physical or electronic signature.
15.4. Counter-Notice. We may give notice to Our users of any infringement notice by means of a general notice on Our Website, electronic mail to a user's e-mail address in Our records, or by written communication sent by first-class mail to a user's physical address in Our records. If You receive such an infringement notice, You may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
15.4.1. Your physical or electronic signature;
15.4.2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
15.4.3. A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
15.4.4. Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a Federal District Court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be found, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
16. WEBSITE INFORMATION
16.1. We attempt to ensure that information on the Website is complete, accurate and current. Despite Our efforts, the information on the Website may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currency of any information on the Website.
16.2. Through Your use of the Website, You may be exposed to content that You may find offensive, objectionable, harmful, inaccurate or deceptive. By using Our Website, You assume all associated risks.
17.1. The information that You provide to Us is stored on a secured private server. While We take reasonable precautions to protect Your personal information, no security system is impenetrable and We cannot guarantee the security of information that Your provide to Us via the Internet, through Our Website, through online ordering, or in databases stored on Our servers.
18. LINKS TO THIS WEBSITE
18.1. Running or displaying the Website or any information or material displayed on the Website in frames or through similar means on another site without Our prior written permission is prohibited.
18.2. We grant You a nonexclusive right to display at Your site any link that would permit any user to go from Your site to Our Website. You obtain no rights other than the right to link to Our Website. Further, We do not guarantee, approve, or endorse the information or Products available on Your site.
18.3. You agree to not use and display the links in such a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to Us. You agree to not use the links in any manner that is likely to reduce, diminish or damage the goodwill, value or reputation associated with Us. You warrant that Your site does not include any material, and does not contain links to sites displaying any material, which is harmful, pornographic, abusive, hateful, obscene threatening, defamatory, or which encourages illegal activity. Upon notice from Us, You shall promptly remove the links.
18.4. If Your wish to obtain written consent from Us, please Contact Us.
19. THIRD PARTY LINKS
19.1. From time to time, the Website may contain links to sites that We and Our affiliates do not own, operate nor control. All such links are provided solely for Your convenience. If You use these links, You will leave the Website. Neither We nor any of Our respective affiliates are responsible for any content, material or other information located on or accessible from any other site. Neither We nor any of Our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other site, or any content, materials or other information located or accessible from any other site, or the results that You may obtain from using any other site.
19.2. If You decide to access any other site linked to or from this Website, You do so entirely at Your own risk. You agree to be aware when You leave the Website and to read the privacy statements of these sites. You will evaluate the security and trustworthiness of any site connected to or accessed through the Website before disclosing any personal information to them. We do not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from Your disclosure of personal information to those third-party sites.
20. INTELLECTUAL PROPERTY RIGHTS
20.1. We claim copyright and all other intellectual property rights to all materials on the Website, including, but not limited to the words, information, graphics, designs, logos, trademarks, photographs, icons, drawings and text.
20.2. Our intellectual property is protected under copyright, trademark and other intellectual property laws.
20.3. As part of this Agreement, You agree to not reproduce, distribute, sell, publish or broadcast any of the material found on this Website without Our prior written consent.
21.1. YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER WE NOR ANY OF OUR AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE WEBSITE. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE MAY BE OUT OF DATE, AND NEITHER US, NOR ANY OF OUR AFFILIATES MAKE ANY COMMITMENT OR ASSUME ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
21.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE WEBSITE OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
22. LIMITATIONS OF LIABILITY
22.1. We do not assume any responsibility, or will be liable, for any damages to, or any viruses that may infect Your computer, telecommunication equipment, or other property caused by or arising from Your access to, use of, or browsing the Website, or Your downloading of any information or materials from this Website. IN NO EVENT WILL WE, OR ANY OF OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE WEBSITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WEBSITE, ANY SITE LINKED TO THE WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
22.2. IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE WEBSITE. IN THE EVENT OF ANY PROBLEM WITH THE GOODS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THE WEBSITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH GOODS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR SUPPLIER'S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH GOOD OR SERVICS IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE WEBSITE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100) OR (B) THE VALUE OF YOUR PURCHASE MADE ON THE WEBSITE OF THE PRODUCT OR SERVICE THAT CAUSED SUCH DAMAGE OR LOSS.
23.1. You agree to defend, indemnify and hold Us and any of Our affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (a) the use of the Website or the internet or Your placement or transmission of any message or information on this Website by You or Your authorized users; (b) Your violation of any term of this Agreement, including without limitation, Your breach of any of Your representations and warranties within this Agreement; (c) Your violation of any third party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) Your violation of any law, rule or regulation of USA or any other country; (e) any claim or damages that arise as a result of any User Content that You provide to Us; or (f) any other party’s access and use of the Website with Your unique username, password or other appropriate security code.
24.1. In the event that You have a dispute with one or more other visitors, users, customers, or clients of the Website, You release Us (and Our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
25.1. We reserve the right to send You an electronic mail for the purpose of informing You of changes or additions to the Website or this Agreement.
26. DISPUTE RESOLUTION AND ARBITRATION
26.1. You and We agree to the following dispute resolution process for any legal controversy or legal claim arising out of or relating to this Agreement, the Website, any purchase from or subscription to the Website or any other aspect of Our relationship (“Dispute”).
26.2. To help resolve any issues between Us promptly and directly, You and We agree to begin any arbitration within 30 days after a Dispute arises; otherwise, the Dispute is waived.
26.3. In an attempt to find the quickest and most efficient resolution of Our issues, You and We agree to first discuss any issue informally for at least 30 days. To do that, please send Your full name and contact information, Your concern and Your proposed solution by email to Us at email@example.com. If We should need to discuss an issue with You, We will contact You using the email or mailing address on Your Account.
26.4. If We do not reach an agreed upon solution after Our discussions for at least 30 days, You and We agree that any Dispute that either of us may have must be resolved through binding individual arbitration in Benicia, California in accordance with USA: American Arbitration Association.
26.5. There are two limited exceptions to this Dispute Resolution and Arbitration provision: (a) either Party may pursue in small claims court any action that is within that jurisdiction, as long as the case proceeds on an individual basis only; (b) either Party may seek to enforce its patents, trademarks, copyrights or trade secrets in an appropriate state or federal court.
26.6. You and Us also agree to arbitrate in each of Our individual capacities only, not as a representative or member of a class, and each of Us expressly waives any right to file a class action or seek relief on a class basis.
26.7. For US: You may download a form Notice to initiate arbitration at www.adr.org. If You initiate the arbitration, Your arbitration fees will be limited to the filing fee set forth in the AAA's Consumer Rules. It is important that You understand that the arbitrator's decision will be binding and may be entered as a judgment in any court of competent jurisdiction. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees.
27.1. We may terminate this Agreement:
27.1.1. for any or no reason during any free use of the Website;
27.1.2. if You breach any of the terms of this Agreement, and that breach is not remediable;
27.1.3. if You breach any of the terms of this Agreement and that breach is not remedied within 15 days of Your receiving written notice of the breach.
27.2. We may also block Your access to Our Website in the event that:
27.2.1. You breach this Agreement;
27.2.2. We are unable to verify or authenticate any information You provide to Us; or
27.2.3. We believe that Your actions may cause financial loss or legal liability for You, Our users or Us.
27.3. You may terminate Your use of the Website at any time.
27.4. If You terminate Your Account, You shall be liable to pay all fees and charges that have accrued up until the termination takes place. You are personally liable for any orders placed or charges incurred through Your Account prior to termination.
28. CONSENQUENCES OF TERMINATION OR EXPIRATION
28.1. Upon the Effective Date of the termination or expiration of this Agreement:
28.1.1. All rights and licenses granted to You shall be terminated immediately.
28.1.2. You will immediately cease use of and/or access to Your Account and the Website.
28.1.3. We will suspend or terminate Your access to the Website.
28.1.4. We will suspend or terminate access to any or all of the data to the extent permitted by law.
28.2. The termination or expiry of this Agreement shall not affect any of Our accrued rights and liabilities at any time up until the date of termination.
29.1. This Agreement is subject to Our revisions and changes from time to time. Your continued use of the Website after the revision and changes will mean that You agree, without qualification, to the revised Agreement.
29.2. Material revisions to this Agreement will be indicated by an updated Effective Date at the top of this page and by a notice posted on the homepage of the Website.
29.3. It is Your responsibility to remain apprised of any revisions to this Agreement and to remain in compliance therewith.
29.4. Should You object to any such revisions to this Agreement or become dissatisfied with the Website in any way, Your only recourse is to immediately terminate Your membership or discontinue use of the Website. Otherwise, continuing to use, visit, access or use the Website after the Effective Date means that You agree to be bound by any and all revisions.
30. FORCE MAJEURE
30.1. We shall not be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond Our reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; epidemics, pandemics; any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
31. MINIMUM AGE REQUIREMENTS
31.1. Our Website is not directed to children. Access to and use of Our Website is only for those who are at least at the age of
18 years of age or otherwise capable of entering into and performing legal agreements. If You are younger than this, You may not register for or use Our Website.
31.2. Any person who registers as a user or provides their personal information to Our Website represents that they are at least at the age of 18 or otherwise capable of entering into and performing legal agreements. In agreeing with this Agreement, You represent and warrant that You are at least at the age of 18 or otherwise capable of entering into and performing legal agreements.
32.1. Jurisdiction and Choice of Law. Any claim relating to, and the use of, this Website and the materials contained herein is governed by the laws of the state of California, USA. You consent to the exclusive jurisdiction of the state and federal courts located in Benicia, California, USA.
32.2. Entire Agreement. This Agreement and the other agreements stipulated to be incorporated herein are the entire agreement between You and Us and supersede any prior understandings or agreements (written or oral).
32.3. Counterparts. A printed version of this Agreement will be admissible in judicial and administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
32.4. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
32.5. Assignment. You agree that this Agreement and all incorporated agreements may be automatically assigned by Us in Our sole discretion. You cannot assign this Agreement without Our written consent.
32.6. Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
32.7. No Waiver. Our failure to act with respect to Your or others’ breach does not waive Our right to act with respect to subsequent or similar breaches.
32.8. Survival. Sections 4 (Trademarks/No Endorsement), 7 (Advertising Rights), 18 (Intellectual Property Rights), 19 (DISCLAIMERS), 20 (LIMITATIONS OF LIABILITY), 21 (Indemnity), 22 (Release), 23 (Communications), and 24 (Dispute Resolution and Arbitration) shall survive any termination or expiration of this Agreement.
33. USER FEEDBACK
33.1. We welcome and encourage You to provide feedback, comments, and suggestions for improvements of the Website (“Feedback”). You may submit Feedback by emailing Us at firstname.lastname@example.org. You acknowledge and agree that if You submit any Feedback to Us, You hereby grant to Us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable (through several tiers) and transferable license under any and all intellectual property rights that You own or control in relation to the Feedback to use, reproduce, view, communicate to the public by any means, print, copy (whether onto hard disk or other media), edit, translate, perform and display (publicly or otherwise), distribute, redistribute, modify, adapt, make, sell, offer to sell, transmit, license, transfer, stream, broadcast, create derivative works from, and otherwise use and exploit the Feedback for any purpose.
34. COPYRIGHT NOTICE
34.1. All Website design, graphics, text selections, arrangements, and all software are of Copyright © 2020, Fitness Superstore, Inc. or its licensors. ALL RIGHTS RESERVED.
35. NOTICE FOR CALIFORNIA USERS
35.1. If You are a California resident, in accordance with Cal. Civ. Code § 1789.3, 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
36. CONTACT US
36.1. If You do not understand any of the foregoing terms and conditions or if You have any questions or comments, please contact Us through FITNESS SUPERSTORE, INC., 537 Stone Rd. STE F, Benicia, CA 94510, +1-925-215-2927, email@example.com