By using the Services, you are agreeing to these Terms. If you don’t agree to these Terms, you may not use the Services. Surface Fitness may modify these Terms at any time, and if Surface Fitness does modify the Terms, Surface Fitness will notify you by posting the modified Terms on the Site. It’s important that you review any modified Terms before you continue using the Services. If you continue to use the Services, you are bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services.
SECTION 12 “DISPUTE RESOLUTION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS.
If you breach these Terms, Surface Fitness may take action against you, including but not limited to terminating your account. You acknowledge that Surface Fitness has no obligation to, and will not, reimburse or refund you for Services lost due to involuntary suspension or termination of your account.
- Use of the Services
3.1 Physical Activity Notice
The Services may include features that promote physical activity. Consider the risks involved and consult with your medical professional before engaging in any physical activity. Surface Fitness is not responsible or liable for any injuries or damages you may sustain that result from your use of, or inability to use, the features of the Services.
3.2 Safe and Appropriate Use
While you are using our Services, please be aware of your surroundings, and play and communicate safely. You agree that your use of the Services is at your own risk, and that you will not use the Services to violate any applicable law, regulation, Event policies, or instructions as outlined in these Terms and you will not encourage or enable any other individual to do so.
Further, you agree that in conjunction with your use of the Services you will not make available any unlawful, inappropriate, or commercial Content (defined below). You agree that you will not submit inaccurate, misleading, or inappropriate Content, including data submissions, edits, or removal requests.
Surface Fitness does not intend the App to be medical or health devices, or provide medical or health advice.
3.3 Your Interactions with Other People
You agree that in conjunction with your use of the Services, you will maintain safe and appropriate contact with other participants and other people in the real world. You will not harass, threaten, or otherwise violate the legal rights of others. You will not trespass, or in any manner attempt to gain, or gain access to any property or location where you do not have a right or permission to be, and will not otherwise engage in any activity that may result in injury, death, property damage, nuisance, or liability of any kind. If you have a dispute with any third party relating to your use of the Services, you release Surface Fitness (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from all 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.
3.4 Eligibility and Account Registration
If you want to use certain Services, you will have to create an account with Surface Fitness (an “Account“), and you will also need access to a supported Device. Surface Fitness does not support rooted or jailbroken devices.
You agree that you won’t disclose your Account password to anyone and you will notify Surface Fitness immediately of any unauthorized use of your Account. Surface Fitness takes its account security obligations seriously; however, you are responsible for all activities that occur under your Account, whether or not you know about them.
3.5 Account Suspension or Termination
Surface Fitness may suspend or terminate your access to and use of the Services, at Surface Fitness’s sole discretion, at any time and without notice to you, including if (a) you fail to comply with these Terms; (b) Surface Fitness suspects fraud or misuse by you of Content or Services; or (c) Surface Fitness suspects any other unlawful activity associated with your Account. If your Account is inactive (i.e., not used or logged-into) for a period of time, Surface Fitness will notify you via the Services or in the account prior to termination of your Account.
You may terminate your Account at any time. Upon termination of any Services or your Account, the following provisions of these Terms will survive: Content Ownership, Rights Granted by You, Disclaimer of Warranties, Indemnity, Limitation of Liability, Dispute Resolution, General Terms and this sentence on Termination.
3.6 Who May Use Our Services
As a general rule, children are not allowed to use the Services. A “Child” is a person under 13 years old.
Surface Fitness requires parental consent for those Services that Children may use. Parents or legal guardians (“Parents“) can provide and verify their consent via the account, via email or in person at Surface Fitness. Where Parental consent is required, Surface Fitness recommends that Parent(s) monitor the Child’s online activity and use of the Service.
Upon receipt and review of appropriate Parent verification and consent, Surface Fitness will enable the Parent to create an Account for the Child. CLICK HERE FOR CONSENT
A Parent who wishes to rescind their previously-provided consent to a Child’s access to and use of the Services should contact Surface Fitness who will then permanently delete the account.
Purchases made through the Services are limited to Account holders who either (a) are the age needed to consent to a contract in the United States; or (b) if younger, have the consent of a Parent to use the Service. Parents can consult the iOS or Google Play settings for the App to restrict in-App purchases by a Child, and should also monitor activity in their Child’s Account.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SURFACE FITNESS DECLINES ANY RESPONSIBILITY REGARDING ANY ACTIVITIES CONDUCTED BY A CHILD WITH OR WITHOUT THE PERMISSION OF A PARENT. IF YOU ARE A PARENT AND YOU GIVE YOUR PERMISSION FOR YOUR CHILD TO REGISTER FOR ANY OF THE SERVICES, YOU THEREBY AGREE TO THE TERMS RELATING TO USE OF THE SERVICES BY YOUR CHILD.
- Limited License to Use
Subject to your compliance with these Terms, Surface Fitness grants you a limited, nonexclusive, nontransferable, non-sublicenseable license to download and install a copy of the digital program on a mobile device and to run such copy of the digital program solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms or under applicable law, you may not: (a) copy, modify, or create derivative works based on the digital programs; (b) distribute, transfer, sublicense, lease, lend, or rent the digital program to any third party; (c) reverse engineer, decompile, or disassemble the digital program; or (d) make the functionality of the digital program available to multiple users through any means. Surface Fitness reserves all rights in and to the digital program not expressly granted to you under these Terms.
- Content and Content Rights
Subject to your compliance with these Terms, Surface Fitness grants you a personal, noncommercial, nonexclusive, nontransferable, nonsublicensable, revocable, limited license to download, view, display, and use the Content solely for your permitted use within the Services. “Content” means the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, communications, interactive features, works of authorship of any kind, and information or other materials that are generated, provided, or otherwise made available through the Services, including User Content. “User Content” means any Content a user of the Services provides to be made available through the Services.
5.1 Content Ownership
Surface Fitness does not claim ownership rights in User Content and nothing in these Terms restricts any rights that you may have to use and exploit your User Content. Subject to the foregoing, Surface Fitness exclusively owns all right, title, and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and/or foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or Content.
5.2 Rights Granted by You
By making any User Content available through the Services you grant to Surface Fitness a nonexclusive, transferable, sublicenseable, worldwide, royalty-free, perpetual license (or, if not permitted under applicable law, a license for the whole duration, including for any extension thereof, of all relevant rights under any applicable law), to use, copy, modify, create derivative works based upon, publicly display, publicly perform, market, promote and distribute your User Content in connection with operating and providing the Services and Content to you and to others. By accepting these terms, you allow Surface Fitness to benefit freely from the above rights, including but not limited to:
- The right to reproduce User Content by any means and in any form.
- The right to publicly or privately broadcast or make available the User Content (or any product incorporating the User Content), in return for payment or free of charge in all places by any means or process known or unknown at the present time, and in particular via Internet, streaming, pay per view, pay per play, theatrical or television broadcasting, DVD, and print.
- The right to use the User Content for demonstration, promotion and advertising for all Surface Fitness Services.
- The right to produce or order the production of any new product or service from the User Content or from any product incorporating or exploiting the User Content, either reproduced as it stands or modified by Surface Fitness or by any outside party of its choice.
5.3 Responsibility for Your Content
You alone are responsible for your User Content, and once published, it cannot always be withdrawn. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in your User Content that makes you personally identifiable. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant Surface Fitness the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Surface Fitness on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. To the extent permitted by applicable law, you also agree that you will not exercise your moral rights (or equivalent rights under applicable laws), such as your right to be identified as the author of any of the User Contents, against Surface Fitness or any third party designated by Surface Fitness. You may not imply that your User Content is in any way sponsored or endorsed by Surface Fitness.
You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
You can submit feedback, comments, and suggestions for improvements to the Services (“Feedback“) via the digital program, or by reaching out to Surface Fitness at email@example.com. Feedback is a form of User Content. You acknowledge that Surface Fitness is under no obligation to act upon any feedback, comments, or suggestions provided by you.
5.5 DMCA/Copyright Policy
Surface Fitness respects copyright law and expects its users to do the same. It is Surface Fitness’s policy to, in appropriate circumstances, terminate Account holders who infringe or are believed to be infringing the rights of copyright holders. Please see Surface Fitness’s Copyright policy, which is incorporated herein by reference, for further information.
- Conduct, General Prohibitions, and Surface Fitness’s Enforcement Rights
You agree that you are responsible for your own conduct and User Content while using the Services, and for any consequences thereof. In addition, you agree not to do any of the following, unless applicable law mandates that you be given the right to do so:
- collect, store or share any personally identifiable information of other users from the Services without their express permission;
- extract, scrape, or index the Services or Content (including information about users or gameplay);
- use the Services or Content, or any portion thereof, for any commercial purpose or in a manner not permitted by these Terms, including but not limited to (a) gathering digital items or resources for sale outside the digital programs, (b) performing services in the digital programs in exchange for payment outside the digital programs, or (c) selling, reselling, or renting the digital programs or your Account;
- attempt to access or search the Services or Content or download Content from the Services through the use of any technology or means other than those provided by Surface Fitness or other generally available third party web browsers (including without limitation automation software, bots, spiders, crawlers, data mining tools, or hacks, tools, agents, engines, or devices of any kind);
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services or Content;
- bypass, remove, deactivate, descramble, or otherwise circumvent any technological measure implemented by Surface Fitness or any of Surface Fitness’s providers or any other third party (including another user) to protect the Services or Content;
- use, display, mirror, or frame the Services or any individual element within the Services, Surface Fitness’s name, any Surface Fitness trademark, logo, or other proprietary information, or the layout and design of any page, App or digital programs without Surface Fitness’s express written consent;
- post, publish, submit or transmit any Content that infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy;
- access, tamper with, or use nonpublic areas of the Services, Surface Fitness’s computer systems, or the technical delivery systems of Surface Fitness’s providers;
- attempt to probe, scan, or test the vulnerability of any Surface Fitness system or network or Service, or breach any security or authentication measures;
- use any meta tags or other hidden text or metadata utilizing a Surface Fitness trademark, logo, URL, or product name without Surface Fitness’s express written consent;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive, or false source identifying information;
- 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 mailbombing the Services;
- delete, obscure, or in any manner alter any attribution, warning, or link that appears in the Services or the Content;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing.
Although Surface Fitness is not obligated to monitor access to or use of the Services or Content or to review or edit any Content, Surface Fitness has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. Surface Fitness reserves the right to remove or disable access to any Content, at any time and without notice. Surface Fitness may remove any Content Surface Fitness considers to be objectionable or in violation of these Terms. Surface Fitness has the right to investigate violations of these Terms or conduct that affects the Services. Surface Fitness may also consult and cooperate with law enforcement authorities to prosecute users and others who violate the law.
ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICES, INCLUDING WITHOUT LIMITATION UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY SITE OR APP, IS A BREACH OF SURFACE FITNESS’S TERMS AND MAY BE A BREACH OR VIOLATION OF CRIMINAL AND CIVIL LAWS.
- Participation in Events
7.1 Event Registration and Tickets
The term “Event(s)” means any in-person event, gathering, activity or the like which is directly organized, hosted, or managed by Surface Fitness, and any Promotion (as defined below). By registering or, where required, purchasing tickets for an Event, you represent and warrant that the information you provide is true and accurate. If you are registering or purchasing tickets on behalf of others, you represent and warrant you have all necessary rights and consents to register and provide this information for others.
Subject to applicable law and the exceptions set forth in these Terms, no refunds or exchanges of Event tickets are permitted and tickets are non-transferable. Reasonably acceptable proof of identity, for example a driver’s license or passport, showing the same first and last name as those provided at time of prior registration, may be required to access an Event. Actual or attempted resale of tickets subjects them to revocation without refund. Tickets obtained from unauthorized sources may be invalid, lost, stolen, or counterfeit and may not be honored. Tickets cannot be replaced if lost, stolen or destroyed. Commercial use of tickets is prohibited without written approval from Surface Fitness. Tickets are not redeemable for cash or credit. You agree to abide by any published ticket limits or restrictions, and orders exceeding or violating these restrictions are subject to cancellation without notice or refund. Events may have limited space and/or availability and Surface Fitness does not guarantee your ability to purchase a ticket or attend an Event.
7.2 Event Conduct and Policies
You shall at all times comply with all applicable laws and any rules and policies provided by Surface Fitness or any other authorized party involved in creating or delivering the Event, including all health and safety policies and procedures and all reasonable instructions of the venue staff and Surface Fitness representatives at the Event. As a condition of participation, you agree to comply with all policies on the Sites, including, without limitation, any applicable Event website.
Illicit drugs, controlled substances, contraband, weapons and illegal items are prohibited at Events. You agree and consent to reasonable security precautions and search on entry. To the fullest extent permitted by applicable law, you waive and release Surface Fitness and any other party involved in creating or delivering the Event from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to such security precautions and/or searches. If you elect not to consent to such security precautions and searches, you may be denied entry, or removed from, an Event without refund or other compensation.
Surface Fitness and its authorized third parties reserve the right to refuse admission to, or to remove from an Event without refund or compensation of any kind, any person that (a) does not comply with these Terms, (b) engages in disorderly conduct or willful misconduct, or (c) Surface Fitness or its authorized third parties believe will cause a negative effect on the Event, participants, spectators, and/or personnel.
Any minor attending an Event must be accompanied by a Parent.
7.3 Assumption of Risks
Unless prohibited by applicable law, you agree that by purchasing tickets to, participating in or attending an Event, you willingly, knowingly and voluntarily assume any and all risks occurring before, during or after the Event, including injury by any cause and damage, loss, or theft of property. You acknowledge that Events, and certain activities at Events, have inherent and unforeseen risks, including but not limited to (a) contact or collision with persons or objects, (b) obstacles (e.g., natural and man-made water, road and surface hazards), (c) equipment related hazards (e.g., broken, defective or inadequate equipment, unexpected equipment failure), (d) weather related hazards, (e) inadequate first aid and/or emergency measures, (f) judgment and/or behavior related problems (e.g., erratic or inappropriate participant, co-participant, or spectator behavior or errors in judgment by personnel at the Event), and (g) natural hazards (e.g., uneven or difficult terrain, wildlife and insects, contact with plants). You agree to take reasonable precautions before attending or participating in an Event and its activities, for example consulting with a personal physician and ensuring you are in good physical health, wearing appropriate attire, and bringing necessary or recommended supplies. You further understand and acknowledge it is your responsibility to inspect the Event grounds, facilities, equipment and areas to be used, and that by participating in the Event, you acknowledge the Event grounds, facilities, equipment, and areas to be used are safe, adequate, and acceptable for participation. If you believe or become aware of any unsafe conditions or unreasonable risks, you agree to immediately notify appropriate personnel and cease participation in the Event.
To the extent permitted under applicable law, you hereby waive and release Surface Fitness and any other party involved in creating or delivering the Event from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to your attendance or participation in an Event, including for negligence, inherent and unforeseen risks, injury or damage to persons or property and the actions of third parties or Event participants and spectators.
7.4 Event Features and Cancellation
Subject to applicable law, all schedules and any live or in-App experiences, activities, goods, services, perks, items, rewards and/or Content (collectively “Event Features“) advertised in connection with an Event are not guaranteed and are subject to change and/or cancellation at any time prior to or during an Event without notice or compensation of any kind. Admittance to an Event does not guarantee any specific Event Features while at the Event.
Event date, time and/or location are subject to change at any time, and Surface Fitness will make a commercially reasonable effort to notify you in advance of any material changes. If an Event is canceled, suspended, or rescheduled and you are not able to attend, you will not be entitled to any compensation other than a refund of the ticket price at its face value with no further liability or compensation from Surface Fitness or any other party. Any travel or accommodation costs incurred are entirely your responsibility.
7.5 Recordings and Use of Likeness
You consent to and approve of Surface Fitness’s recording of your image, likeness, name, dialogue, biographic information, personal characteristics, and voice at Events and the royalty free use of this information subject to the same “Rights Granted by You” above. Surface Fitness may publish the results of any competitions (including rankings and any winners), statistics, and pictures of participants in promotional and marketing materials and on social media in accordance with these Terms.
- Sweepstakes, Contests, Raffles, Surveys And Similar Promotions
- Third Party Websites or Resources
Services may contain links to third party websites or resources. Surface Fitness provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. To the extent permitted under applicable law, you acknowledge sole responsibility for and assume all risk arising from, your use of any third party websites or resources.
Surface Fitness is not responsible for the availability or quality of third party services, including cell phone networks, hotspots, wireless internet and other services. Such third party services may affect your ability to utilize the Services or participate in an Event and you hereby waive and release Surface Fitness and any other party involved in creating or delivering the Services from all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to such third party services.
- Disclaimer of Warranties
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SURFACE FITNESS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SURFACE FITNESS MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SURFACE FITNESS MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.
YOU ASSUME ALL RISKS RELATING TO YOUR ONLINE OR OFFLINE COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT SURFACE FITNESS DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICES. SURFACE FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
- Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SURFACE FITNESS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICES OR PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SURFACE FITNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SURFACE FITNESS’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, AN EVENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE THOUSAND DOLLARS ($1000). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SURFACE FITNESS AND YOU.
- Dispute Resolution
YOU AGREE THAT DISPUTES BETWEEN YOU AND SURFACE FITNESS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
THIS NOTICE DOES NOT APPLY: (1) IF YOU OPT OUT OF ARBITRATION AS DESCRIBED IN THE “ARBITRATION” SECTION BELOW, OR (2) EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12.1, “ARBITRATION,” BELOW.
You and Surface Fitness agree that any disputes will be settled by binding arbitration, except that each party retains the right: (a) to bring an individual action in small claims court and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in this clause (b), an “IP Protection Action“). Notwithstanding this arbitration agreement, Surface Fitness reserves the right to bring an action in any court of competent jurisdiction against you to stop and/or seek compensation for the intentional or willful misuse or abuse (e.g. hacking or falsifying location) of its IP, products, and Services.
Without limiting the preceding paragraph, you will also have the right to litigate any other dispute if you provide Surface Fitness with written notice of your desire to do so by email to firstname.lastname@example.org within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice“). If you do not provide Surface Fitness with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except as expressly set forth in clauses (a) and (b) above. Further, unless both you and Surface Fitness otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this class action waiver is held unenforceable, then the parties’ agreement to arbitrate will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. If the terms of this Section 13.1 “Arbitration” are found unenforceable as to any claim for relief, that claim must be severed from the arbitration and brought pursuant to Section 13.6, “Governing Law and Exclusive Venue.” All other claims will be arbitrated. The arbitrator, and not any court or agency, shall have exclusive authority to (a) determine the scope and enforceability of this arbitration agreement and (b) resolve any dispute related to its interpretation, applicability, enforceability, or formation including any claim that all or any part of it is void or voidable.
12.2 Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
12.3 Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration) The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
12.4 Arbitration Location and Procedure
Unless you and Surface Fitness otherwise agree, the arbitration will be conducted in a confidential manner, in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Surface Fitness submit to the arbitrator, and there will be no other discovery conducted (such as depositions), unless the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Notwithstanding the arbitrator’s discretion, absent a showing of good cause, in no event shall the parties be allowed more than three (3) depositions per side, and there will be no corporate deposition of the type contemplated by Federal Rule of Civil Procedure 30(b)(6) and California Code of Civil Procedure 2025.230.
12.5 Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will be treated as confidential, and will include the essential findings and conclusions upon which the arbitrator based the award. Confirmation and enforcement of the arbitration award may be done in any court of competent jurisdiction. The arbitrator’s award of damages must be consistent with the terms of Section 12 “Limitation of Liability” as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
12.6 Governing Law and Exclusive Venue
To the extent that these Terms allow you or Surface Fitness to initiate litigation in a court, other than for small claims court actions, both you and Surface Fitness agree to the exclusive jurisdiction of and venue in the state and federal courts located in the Central District of California. Each of the parties hereto waives any objection to jurisdiction and venue in such courts. These Terms and your use of the Services are governed by the laws of the State of California, excluding its conflicts-of-law rules.
Our responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Surface Fitness will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rules of Civil Procedure 11(b)).
12.8 Changes to Dispute Resolution
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Surface Fitness changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending Surface Fitness written notice (by email to email@example.com) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Surface Fitness’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Surface Fitness in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
13.1 Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Surface Fitness and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Surface Fitness and you regarding the Services and Content.
If any provision of these Terms is held invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Surface Fitness’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Surface Fitness may freely assign or transfer these Terms without restriction, and the transferor or assignor shall not remain jointly and severally liable. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
13.3 Force Majeure
Neither Surface Fitness, any user, nor any other party involved in creating, producing, or delivering the Services or Content shall be liable with respect to any damages, injuries, nonperformance or delay in performance by reason of any act of God, weather, fire, flood, acts of terror or foreign enemy, satellite or network failure, governmental order or regulation, trade dispute, or any other cause beyond its respective control.
Any notices or other communications provided by Surface Fitness under these Terms, including those regarding modifications to these Terms, will be given: (a) via email; or (b) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted to any email address Your provided.
Surface Fitness’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Surface Fitness. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
13.6 Contact Information
If you have any questions about these Terms or the Services, please contact Surface Fitness firstname.lastname@example.org 3470 Ocean View Blvd, Glendale, CA 91208.