Exos Works, Inc. and its affiliates (collectively “Exos” or “our”) is a human performance company helping individuals reach higher and achieve more. Our core objective is to help you achieve your personal, professional, fitness, and all-around performance goals.
In addition to Exos’ in-person performance services, our “Services” include both offline components, such as in-person fitness or community center management service, and and online components, such as: e-commerce services, for example for the sale of apparel or equipment; virtual workouts; the Exos’ website and mobile applications which may include on-demand coaching, digital challenges and live streaming online workouts. We refer collectively to our online Services as our “Digital Services.” Your use of or participation in these Services, creation of an account to use the Services (“Account”), or your decision to access our Digital Services, indicates your acceptance of and agreement to all of these Exos Terms of Service (“Terms”).
These Terms are legally binding terms for your use of the Services. By accessing, downloading, or using Exos’ Services, you accept these Terms and you represent that you have the right, authority and capacity to enter into this agreement. If you do not agree with all the provisions of these Terms, do not access and or use the Services.
By using Exos’ Services, you also agree to respect all other persons who use or assist with the Exos Services, such as Exos athletic coaches, wellness professionals and others who facilitate the Services (the “Coaches”) and all other the Services participants (together with the Coaches, the “Participants”).
These Terms contain important information about your legal rights. Specifically, (a) the Section captioned “Disputes, Arbitration and Class Action Waiver” of these Terms contains an arbitration agreement and class action waiver that apply to all claims brought against Exos in the United States and claims brought in other countries where arbitration clauses are permitted and (b) the Sections captioned “Professional Advice Disclaimer and Heath Waiver” and “Waiver and Assumption of Risk” of these Terms contain information about your assumption of risk and corresponding release and waiver of liability. Please read these Terms carefully and only use Exos Services if you agree with these Terms.
Access to the Services
- Account Creation and Registration.
- General: You must create an account or otherwise register to use the Services by providing us with certain information (an “Account”). By doing so, you agree to receive notices from Exos relative to your Account and our Services. You agree to provide Exos with accurate information such as your full name, email address, and other related information (collectively, “Registration Information”) and you agree to keep all Registration Information updated and correct. While using the Services, your full name may be visible to other Participants.
- Account Security: Your Account used to access the Services is personal to you, so do not share it, and keep your login credentials safe. It is your responsibility to ensure you are the only user of your Account and that you use it in a manner consistent with these Terms. If you learn that your account was compromised you agree to notify Exos within 24 hours. Exos will not be liable for any losses or damage arising from the unauthorized use of your Account.
- Accessing Exos Facilities: In order to use certain Services, you may need to check in to the applicable facility where you access them (the “Facility”), and in other situations, there may be additional requirements to access the Services. In instances where you are accessing the Facility, the manner in which you check in will depend upon the Facility’s practices and procedures from time to time.
- Age and Legal Authority. In order to access or use the Services, you must be either (a) at least 18 years of age, or (b) if you are under the age of 18, you must have the consent of your parent or guardian to use the Services under their direct supervision. If you are younger than age 16, you may not use the Digital Services. If you do not meet these requirements, you may not use the Services.
- Equipment. We provide certain Services through the use of various technologies, systems and equipment at our Facilities which may be electromechanical, such as treadmills with a video screen, or which may be static, such as barbells and jump ropes. The use of any such items are on an as-available basis and may require you to provide certain information prior to use.
- The Digital Services. The Digital Services deliver a suite of human performance services that are designed to facilitate your fitness goals and objectives via the Digital Services, which are facilitated through Coaches.
- Costs of Access. You agree that you or the person or legal entity that pays for your access to the Digital Services (the “Paying Party”) will provide, at your or the Paying Party’s own cost, the devices and internet access required to use the Digital Services. You acknowledge and agree that Exos makes no warranty or representation that the Digital Services can be accessed (i) on all personal computers, mobile devices, tablets, smartphones or other devices, or (ii) by means of any specific internet, Wi-Fi or other connection provider.
- Scheduling and Class Participation. Once you have created an Account, you will have the option to review and sign-up for available sessions for specific Services available to you. If you have any difficulty navigating the Services, please contact us at email@example.com.
- Third Parties: Your use of certain Services may rely on or resources provided by third parties (“Third-Party Resources”), which may be subject to additional terms not included in these Terms and which are available directly from such third parties. By using such Services, you agree to any additional terms that apply. However, as between Exos and you, these Terms shall apply to your use of the Services including any such Third-Party Resources you interact with as part of the Services. In addition, the Services may refer to or link to content or other services that are provided by third parties and that are not integral to the Services. Exos is not responsible for the content, availability, or lack of availability of any such content or services that are not provided by Exos. Additionally, the Services may allow you to engage with other Participants, and we expect that you will exercise caution when interacting with people that you do not know. All interactions between you and any other Participant (other than the Exos Coaches) are solely between you and such person. You agree that Exos is not responsible or liable for any loss, damage, injury or other matters of any sort incurred as a result of such interactions.
- Contacting Participants: Exos may contact you periodically by email to the email address associated with your account, by text/SMS message or autodialed and/or prerecorded calls to the phone number associated with your account, via mobile push notification, or via other methods you authorize, for billing reminders, to collect a debt owed to us, for Exos promotional offers and other account-related communications. Standard message and data rates may apply to text messages. Your use of Services constitutes consent to receiving these communications from Exos where legally permitted. It is not a condition of purchase that you accept any promotional calls or texts. You may opt out of marketing and promotional calls or messages by following the applicable unsubscribe instructions provided to you. Following such an opt-out, you may continue to receive calls or messages for a short period of time while we process your request.
- Local Laws: You warrant and agree that Your access to and use of Services is in compliance with the laws governing such access, use and related conduct in Your geographical region.
- What specific information Exos may collect about you.
- The business objectives and uses of that information.
- The conditions under which Exos shares that information, and who Exos shares such information with.
The Services include our e-commerce platform through which you can purchase apparel and equipment or accessories, e.g., at shop.teamexos.com. The products listed for sale are subject to change and to availability. All depictions, graphics, and advertising are for illustration only and does not imply any warranty. When purchasing items through our e-commerce platform, payment for products must be made when you place the order. Your order will include the address that Exos agrees to ship your order to. Additionally, prior to the delivery of your order, Exos’ reserves the right to cancel any order at any time. If Exos’ cancels your order, you will receive a full refund to the same form of payment used to place your order. All sales are plus applicable tax and are subject to our return policy listed on the applicable e-commerce platform.
Exos grants you a limited, non-exclusive, non-transferable, revocable license (“Limited License”) to access and use our Services for uses that are lawful and permitted under these Terms. You acknowledge and agree that the Limited License will remain in effect unless and until you breach these Terms or your Account is terminated in accordance with these Terms. Exos reserves the right to refuse service, terminate accounts, remove or edit content or cancel orders at its sole discretion.
App Store Terms
When you access the Exos Digital Solutions via any app store or distribution platform (such as the Apple App Store or Google Play Store, which we refer to as an “App Store”) the following additional terms apply:
- You acknowledge and agree that the availability of some of Exos’ Services, specifically the Digital Services, are dependent upon the App Store, and that these Terms are between you and Exos, and not you and the applicable App Store provider. Further, you agree that in order to download and access Exos’ Services and Digital Services, you must agree to the App Store’s terms and conditions. Lastly, you agree that Exos’ Limited License grant is conditioned upon your compliance with any and all terms and conditions of such App Store or any other third party.
The following additional terms and conditions apply to the Exos’ Digital Services on an Apple iOS device, and you and Exos each hereby acknowledge that:
- in the case that any of these Terms usage rules are in conflict with the applicable Apple Inc. (“Apple”) App Store Terms of Service and are less restrictive than the applicable Apple App Store Terms of Services, the more restrictive or conflicting provision in such Apple App Store Terms of Service will govern and apply;
- the Limited License granted to you is a non-transferable license to use the Digital Services on any Apple-branded Products that you control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such Licensed Application may be accessed, acquired, and used by other accounts associated with the purchaser via Family Sharing or volume purchasing;
- if any maintenance and support services for the Digital Services are required under applicable law or expressly contemplated by these Terms, Exos, not Apple, is solely responsible for such services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Digital Services;
- to the extent that any product warranties are provided under these Terms or by applicable law that are not expressly disclaimed, Exos, not Apple, are solely responsible. In the event of any failure of the Digital Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Digital Services to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Digital Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty are Exos’ sole responsibility;
- Exos, not Apple, is responsible for addressing any claim that you or any third party relating to the Digital Services or your use or possession of the Digital Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Digital services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. However, you acknowledge and agree that Exos’ responsibility for the foregoing claims is limited and disclaimed, to the maximum extent permitted by applicable law as set forth in these Terms;
- in the event of any third party claim that the Digital Services or your possession or use of the Digital Services infringes that third party’s intellectual property rights, Exos, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
- you hereby represent and warrant that you are not (i) 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 (ii) listed on any U.S. Government list of prohibited or restricted parties;
- You must comply with applicable third party terms while using the Services; and
- Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
Intellectual Property Matters
- Exos’ Intellectual Property Rights
- Ownership: You acknowledge that the Services contain software and other intellectual property that is protected by copyright, patent, trademark, trade secret or other proprietary rights (the “Intellectual Property Rights”), and that these rights are valid and protected in all forms, media and technologies existing now or to be developed in the future. Except as expressly set forth in these Terms, all rights not granted hereunder to you are expressly reserved by Exos.
- Infringement: You further acknowledge and agree that your use of the Services is subject to your willingness to respect the Intellectual Property Rights therein as well as the Intellectual Property Rights of other Participants. As a consequence, you acknowledge and agree these Intellectual Property Rights, whether property of Exos or any third party, are eligible for the full protection of applicable law regardless of which technology platforms are used to sell, share, distribute, and/or provide access to such Intellectual Property Rights.
- Reverse Engineering & Competition: Except as expressly permitted by law, you may not, and you agree not to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Services. In addition, you agree that you will not use any Intellectual Property Rights to develop competing products or services.
- Exos’ Policy Regarding Infringement Claims
- Exos respects the intellectual property of others and expects others to respect Exos’ intellectual property. If you believe that your work has been copied or otherwise appears in the Services in a way that constitutes copyright infringement, please notify us immediately in writing (via certified mail, return receipt requested, or via overnight delivery service) at the following address: General Counsel, Exos Works, Inc., 2629 E Rose Garden Ln, Phoenix, AZ 85050 or by email at firstname.lastname@example.org - Subject: Infringement Claim. Upon receiving appropriate notice that any content or materials infringe your copyright, Exos will take prompt action to remove such content or materials from the Services as required by applicable law, including the U.S. Digital Millennium Copyright Act (the “DMCA”) and similar laws which apply in other jurisdictions. Exos may, in its sole and exclusive discretion, terminate the Accounts of repeat copyright infringers.
Code of Conduct
Exos values each and every one of its Participants. To serve its Participants, Exos also endeavors to provide a safe, respectful and inspiring environment so that its Participants can achieve all of their fitness and wellness goals. Accordingly, Exos respectfully requires, in addition to adhering to the Paying Party’s employee handbook, code of conduct, or other published document that governs your conduct, that you adhere to the following code when using the Services (the “Code”):
- Fundamental Standard. The fundamental standard is that you must treat every Participant with respect and due consideration.
- Sharing Personal Information. While Exos works closely with great companies, it is not possible to verify the integrity of every Participant. With this in mind, we ask all Participants to exercise caution and common sense when sharing any personal information with other Participants using the Digital Services.
- Harassment, Discrimination and Bullying. Exos prohibits harassment, discrimination and bullying in all forms, including any such conduct that may occur by way of (i) verbal or physical abuse or (ii) exposure to offensive images, videos or other media containing offensive content. Exos takes all reports of harassment, discrimination and bullying seriously, and will take appropriate action upon reviewing each such report.
- Unwanted Contact. Exos prohibits all forms of unwanted contact in connection with the use of the Services. Exos takes all reports of unwanted contact seriously, and will investigate and take appropriate actions as warranted.
While we are not obligated to do so, we may monitor the Services, if we learn that you have not abided by this Code, Exos reserves the right, in its sole discretion, to remove any of your User Content or terminate and delete your Account and notify the Paying Party.
Participants can notify Exos of any unethical behavior by reporting such events to email@example.com.
Our Content & Proprietary Rights: The Services are proprietary, and you agree you are only receiving a Limited License to access or use the information, materials, functions and other content contained in our Services. The Services may contain graphics, images, visualizations, document layouts, artwork, text, fonts, music, software tools, and other information (referred to herein as “Content”). The Services and all Content is the copyrighted property of Exos, and/or third parties. All rights not expressly granted to you in the Services and the Content are reserved worldwide. If you do any of the following, Exos may, in its sole and exclusive discretion, terminate and delete your Account:
- Retain, copy, distribute, publish, or use any portion of the Services or the Content except as expressly allowed in these Terms.
- Share, post, submit, or transmit any content within the Services that violates these Terms, including Content and/or User Content (hereinafter defined), that:
- Infringes the intellectual property right(s) of a third party;
- creates any kind of liability for Exos or for any Participants;
- is fraudulent, false, misleading or deceptive, or that constitutes or contains pornography or other offensive material, as determined by Exos in its sole and exclusive discretion; or
- promotes any conduct that Exos believes to be inconsistent with its values.
- Exploit or abuse the Services in any way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Exos is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
- Use, re-use or re-contextualize any Services or Intellectual Property Rights for any commercial or non-commercial purpose without the prior written consent of Exos.
- Engage in any activity that constitutes or could constitute an attempt to breach Exos information systems or technology (each instance thereof a “Security Breach” or “Attempted Security Breach”), including the modification or deactivation of any technological protection measure Exos has deployed to regulate access to the Services, protect Exos’ Intellectual Property Rights, the integrity of its information systems or technology, or the valuable personal information of its Participants. For the avoidance of doubt, any activity that constitutes or could constitute an attempt to install malware or any other type of unwanted code or unwanted instruction to a computer system is included within the definition of a Security Breach and/or an Attempted Security Breach.
- Violate any applicable law or regulation, whether such law or regulation is domestic or international.
- Except as explicitly permitted by law, attempt to disable, workaround, or render ineffective any technological protection measure, including Intellectual Property Rights and/or domain-based access restrictions, that Exos has implemented at its sole and exclusive discretion.
- Under these Terms, “User Content” refers to any content that our Participants post, share, generate, submit and/or consume in connection with the use of the Services. With respect to such User Content, you acknowledge and agree that you possess the rights necessary in such content and do hereby grant Exos a worldwide, perpetual, irrevocable, non-exclusive, transferable, royalty free, fully paid worldwide license (with the right to sublicense) to use copy, publicly perform, publicly display, reformat, translate, modify and make derivative works, and distribute such User Content (the “User Content License”). Unless otherwise agreed to, or if you notify us at firstname.lastname@example.org of your desire to opt out at any time prior to providing us with User Content, to the extent that such User Content includes your appearance, voice or likeness, then you hereby grant Exos the right to use such attributes as part of the User Content License, and in all cases, you grant Exos the right to use your full or abbreviated name in connection with using your User Content.
- You further acknowledge and agree that pursuant to the User Content License, you irrevocably authorize Exos to use the User Content for any purpose, including any and all commercial purposes, including advertising and general promotion purposes, as well as for the enhancement or promotion of the Exos brand. Lastly, you agree that all User Content shall be created in accordance with Exos’ Code of Conduct. If in doubt, do not post it.
Exos may offer eligible Participants the opportunity to engage in beta programs (“Beta Program”) where Exos shall test new features within the Services to review the features prior to implementation into the Services. The Beta Program will be offered at Exos sole discretion and any Participants involvement in such Beta Programs is voluntary. Any additional terms and conditions of Participation involvement in any Beta Program will be provided to you at the time of your agreement to participate in the Beta Program. These Terms along with any such additional terms provided to you shall govern any Beta Program. In the event of conflict or inconsistency between these Terms and any
Beta Program terms, these Terms shall prevail. Exos reserves the right to change or modify the terms of any Beta Program at any time with or without notice to you.
Professional Advice Disclaimer and Heath Waiver
In order to provide the Services at one of our Facilities, Exos requires that you agree to a Professional Advice Disclaimer and Health Waiver to be provided to you at the Facility. You acknowledge and agree that the terms and conditions set forth in such waiver apply to every instance in which you use the Services, whether or not at the Facility. In addition, the Waiver and Assumption of Risk set forth below applies to the Services, and in case of any conflict between the Waiver and Assumption of Risk and any Professional Advice Disclaimer and Health Waiver that you have executed, the provision that limits liability in connection with access to the Services and/or the Facility to the greater extent will control.
Waiver and Assumption of Risk
- General Release. Physical activity carries with it certain inherent risks that cannot be eliminated regardless of the care taken to avoid or reduce injury. Some activities may involve strenuous exertion, quick movements that place stress on the cardiovascular system. The level of risk varies by person, physical health and the Services selected. By accepting these Terms, you hereby assume all risks involved in utilizing the Services. You further agree that you are in good physical health and medically able to participate in the Services you select. If in doubt, you should consult with your physician prior to using any of our Services. You hereby release, waive, discharge and agree not to take any legal action against or sue Exos, its directors, officers, employees, contractors, volunteers, clients and agents for any and all claims, incidents or losses arising from the Services. This applies to any and all injuries, illnesses (including COVID) and incidents, foreseeable or unforeseeable.
- Part A. You acknowledge and expressly agree that your use of the Services or engaging in any activities incidental thereto, naturally involves the risk of injury. You further acknowledge and agree that such risk of injury to you is inherent in physical activity and the use of the Services or engaging in any activities incidental thereto, and such risk of injury can range from minor injuries to major injuries, including death. You further acknowledge and agree that in consideration of your use of the Services or in any activities incidental thereto, you voluntarily accept unqualified responsibility and liability for any and all risk of injury, illness, including the contraction of COVID-19 and other infectious diseases, death, loss or damage arising out of or related to the use of the Services or engaging in any activities incidental thereto. Finally, you acknowledge and agree to hold Exos, its affiliated companies, subsidiaries, parents, clients as well as the officers, directors, shareholders, employees, managers, members, agents and independent contractors, content providers, sponsors, successors and assigns of such entities (the “Released Parties”) harmless for any injury or loss caused by any present or future medical condition or disorder, whether known or unknown, personal, bodily, or mental illness, disability, death, economic loss, or any damage to you, including the contraction of COVID-19 and other infectious diseases, resulting from the negligent conduct or omission(s) of Exos, or anyone acting on its behalf, whether related to the Services or not. By participating in any Services or engaging in any activities incidental thereto, you are representing and warranting that (1) you have a safe physical space in which to exercise; and (2) you have a phone or companion nearby that can be used to summon medical assistance in case of a medical emergency.
- Part B. Accordingly and further to your representations and attestations in Part A, you acknowledge and agree that to the fullest extent permitted by law, you hereby fully and forever RELEASE, WAIVE AND DISCHARGE FROM LIABILITY THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, INJURIES, DAMAGES, ACTIONS, OR CAUSES OF ACTION (“CLAIMS”) RELATED TO THE USE OF THE SERVICES AND/OR OR ENGAGING IN ANY ACTIVITIES INCIDENTAL THERETO AGAINST RELEASED PARTIES, AND HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES AGAINST ANY SUCH CLAIMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE RELEASED PARTIES DO NOT MANUFACTURE THE EQUIPMENT OR OTHER PRODUCTS MADE AVAILABLE IN CONNECTION WITH THE PRODUCTS AND THEREFORE THE RELEASED PARTIES WILL NOT BE HELD LIABLE FOR DEFECTIVE EQUIPMENT AND/OR PRODUCTS.
- Medical Disclaimer.
- Exos is not a medical organization and we do not and cannot give you any medical advice or medical assistance in any form. Nothing in the Services should be construed as medical advice or assistance. You are solely responsible for evaluating and assessing your own health and following medical limitations/suggestions provided to you by your healthcare professional. The Services are not a replacement or substitute for professional care. If you have or suspect you may have any type of a medical or psychological problem, or a nutritional deficiency or dietetic condition, you should consult your medical doctor, as appropriate before using the Services.
By using the Services, you agree that you will indemnify, defend and hold harmless the Released Parties from any and all Claims that arise out of (i) your use of, participation in, or consumption of the Services, (ii) User Content submitted by you or submitted by a third party (a) acting on your behalf or (b) using your Account in relation to such User Content or (iii) your violation of any terms, conditions, or guidelines set out or referred to in these Terms.
Disputes, Arbitration and Class Action Waiver
- Application. This arbitration provision only applies to you if your country of residence or establishment is the United States or another place where this mandatory arbitration provision is lawful. If your country of residence or establishment is in any other place, and you nevertheless attempt to bring any legal claim against Exos in the United States, this arbitration provision will apply for determination of the threshold issue of whether this Section captioned “Disputes, Arbitration and Class Action Waiver” applies to you, and all other threshold determinations, including residency, arbitrability, venue, and applicable law, and all non-threshold determinations such as the merits of your legal claim wherever applicable.
- Overview of Dispute Resolution Process. Exos is committed to participating in a consumer-friendly dispute resolution process. To the extent provided by law, this Section captioned “Disputes, Arbitration and Class Action Waiver” provides for a two-part claim adjudication process for individuals to whom this Section applies: (i) an informal negotiation directly with Exos (described in paragraph iii, below), and if necessary (ii) a binding arbitration administered by the American Arbitration Association (“AAA”). You and Exos each retain the right to seek relief in small claims court (tribunals where $5,000 or less can be awarded to the prevailing party) as an alternative to arbitration.
- Mandatory Pre-Arbitration Dispute Resolution and Notification. At least 30 days prior to initiating an arbitration, you and Exos each agree to notify the other party of the dispute in writing and attempt in good faith to negotiate an informal resolution. You must send your notice of dispute to Exos by mailing it to Exos’ agent for service: Corporation Service Company, Princeton South Corporate Ct, Suite 160, 100 Charles Ewing Blvd, Ewing, NJ 08628, with a copy that will not constitute notice to email@example.com. Exos will send its notice of dispute to the email address associated with your Exos account and/or any mailing address you most recently provided to Exos in order to contact you. A notice of dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 30-day period, only then may either party commence arbitration by filing a written Demand for Arbitration (available at www.adr.org) with the AAA and providing a copy to the other party as specified in the AAA Rules (available at adr.org).
- Agreement to Arbitrate. You and Exos mutually agree that any dispute, claim or controversy between you and Exos, including, without limitation, if arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Exos Platform, Host Services, or any Content (collectively, “Disputes”) will be settled by binding individual arbitration. If there is a dispute about whether this arbitration provision can be enforced or applies to our Dispute, you and Exos agree that the arbitrator will decide that issue.
- Exceptions to Arbitration Agreement. You and Exos each agree that the following causes of action and/or claims for relief are exceptions to the arbitration provision and will be brought in a judicial proceeding in a court of competent jurisdiction (as defined below in the Section captioned, “Governing Law and Jurisdiction”): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief. You and Exos agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to Section 3 of the Federal Arbitration Act.
- Arbitration Rules and Governing Law. This arbitration provision evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org. In order to initiate arbitration, a completed written demand (available at www.adr.org) must be filed with the AAA and provided to the other party, as specified in the AAA rules.
- Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Exos agrees that any required arbitration hearing may be conducted, at your option: (a) in the U.S. county where you reside; (b) in New York County; (c) via phone or video conference; or (d) if all parties agree, by solely the submission of documents to the arbitrator.
- Modification of AAA Rules - Attorney’s Fees and Costs. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Exos will pay all arbitration fees and expenses. Either party may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the AAA Rules.
- Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- Class Action Waiver.
- You and Exos acknowledge and agree that, to the fullest extent permitted by law, each of us waives the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless both of us agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and Exos agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
- By using the Services, you agree that there is no guarantee that the Services will be available (i) for any specific length of time, (ii) in any specific jurisdiction, and/or (iii) otherwise to you. The Services are provided on an “AS IS” and “AS AVAILABLE” basis Exos, in its sole and exclusive discretion, reserves the right to update, change or remove any aspect of its Services without notice to you.
- You acknowledge and agree that Exos disclaims any and all warranties of any kind. For the avoidance of doubt, you further acknowledge that Exos makes no representations or warranties regarding (i) the nature of any and all content, user-generated or otherwise, available through the Services or (ii) your ability to achieve or obtain any medical, health or psychological goal through the use of the Services.
- To the extent that any disclaimer or limitation of liability does not is not lawful in your jurisdiction, to the fullest extent permitted by law, any applicable express, implied, and/or statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first created your Account, and no warranties shall apply after such period has elapsed.
Limitation of Liability
- You hereby acknowledge that Services are offered at your sole risk. Exos shall not in any case be liable for any indirect, incidental, special, consequential, punitive or exemplary damages, including but not limited to damages for loss of profits, economic losses, service interruption, damage to electronic devices (including but not limited to personal computers, mobile devices and smartphones or any electronic devices issued to you by your employer), inability to enjoy the use of the Services.
- You further acknowledge and agree that Exos’ total liability to you for all claims aggregated together shall not exceed the lesser of (i) $100 or (ii) the aggregate amount paid by you, or the Paying Party, to Exos for the Services Exos provided to you, calculated in either case over the 1-year period prior to the date your claim or claims initially arose. This limitation applies to all causes of action in the aggregate including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, non-infringement and other causes of action or allegations.
- The above exclusions or limitation of liability for consequential or incidental damages may not apply to you if you live in a jurisdiction which does not recognize such exclusions or limitations. If you live in such a jurisdiction, all limitations, exclusions, and disclaimers in these Terms apply to the maximum extent permitted by law. In the event that one of these exclusions or limitations does not apply to you, all remaining exclusions or limitations remain applicable to you.
Term, Termination and Account Deletion
- Term. These Terms apply to your use of the Services from the date you first register for an Account or use such Services and continue until you no longer have an Account and stop using the Services. Upon the termination of your Account or use of the Services pursuant to these Terms, all rights and licenses granted under these Terms and all access to the Services provided herein shall terminate immediately.
- Account Termination and Deletion. Exos may, in its sole and exclusive discretion (e.g., if you breach the letter or spirit of these Terms or if you otherwise create potential legal risk for Exos), suspend, disable or delete your Account or remove or block access to any and all User Content in order to (i) enforce these Terms, (ii) comply with applicable law, and/or (iii) protect the reputation and brand equity of Exos. Any such action by Exos shall not limit or restrict Exos’ other available remedies at law. If your Account is terminated by Exos for violating these Terms, you will not be eligible to re-register for or use of the Services in the future and shall have no right to access, retrieve or receive a copy of the contents of your Account, including any and all User Content contained therein.
- Survival of Terms and Conditions. Upon termination of your Account, or upon your cessation or abandonment of the use of your Account for any reason, all the terms which by their nature that are intended to survive termination shall including, without limitation: “Privacy,” “User Content,” “Indemnification,” “No Warranties,” ”Professional Advice Disclaimer and Heath Waiver,” “Waiver and Assumption of Risk,” “Disputes, Arbitration and Class Action Waiver,” “Governing Law and Jurisdiction,” and all general provisions herein.
Governing Law and Jurisdiction
- These Terms shall be governed by the laws of the State of New York, and all contracts relating to our Services shall be deemed to have been formed in New York.
- To the extent allowed by law, the State and Federal courts located in New York County, New York, shall have sole jurisdiction over any dispute arising between the parties, and the parties hereby consent to the exclusive personal jurisdiction of such courts and waive any argument that they constitute an inconvenient forum.
- THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OTHERWISE INSTITUTED BETWEEN THE PARTIES.
If you have any questions or comments about these Terms, you may contact the Exos Legal Department at firstname.lastname@example.org. Alternatively, you can send your questions to us at 2629 E Rose Garden Ln, Phoenix, AZ 85050 Attn: Legal Affairs.
- Assignment. Neither these Terms, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior written permission of Exos. Any purported assignment without such permission shall be void. These Terms and access to your Account, Registration Information and User Content may be assigned by Exos in whole or in part without notice.
- Successors; No Third Party Beneficiaries. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. These terms shall not confer any rights or remedies upon any person or entity, except as otherwise set forth in these Terms.
- Notices. Any notice required to be given under these terms must be in writing. Notices by either party must be delivered by electronic mail. Exos may also provide notice to you from within the Digital Services, for example through the use of a banner, dialogue box or push notification. Any notice from you must be sent to email@example.com. Any email notice by Exos to you will be delivered to the email address you most recently provided to Exos. It is your sole responsibility to notify Exos of any changes to your email address by contacting firstname.lastname@example.org. Notices sent by either party shall be effective on the day the notice is sent.
- Waiver. Any waiver of any rights of Exos under these Terms must be in a writing manually signed by an officer of Exos, and any such waiver shall not operate as a waiver of any future breach of these Terms. The failure of a party at any time to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same.
- Changes to Terms and Conditions. Exos may change these Terms by electronic means from time to time at its sole and exclusive discretion, by posting an updated copy to its website and/or elsewhere in the Services. By continuing to use the Services following such changes, you agree that you are bound by any such changed terms.
- Statute of Limitations. To the maximum extent allowed by law, no action or proceeding shall be commenced by you arising out of or based upon these Terms or your use of the Services, unless such action or proceeding is commenced within 1-year following the date the applicable claim first arose.
- Entire Agreement. These Terms represent the entire relationship between Exos and you regarding your access and use of the Services, your Account and the creation of User Content, and they supersede all prior agreements and understandings regarding the same. If any provision of these Terms are determined to be invalid by a court of competent jurisdiction or an arbitrator that provision will be enforced to the maximum extent permitted and the remaining provisions of these Terms will remain in full force and effect.