TERMS OF PURCHASE AND SERVICE
AMP FIT, INC.
TERMS OF PURCHASE AND SERVICE
Effective Date: October 1, 2024
Welcome to the amp fit Inc. (“amp fit”, “we” or “us”) Terms of Purchase and Service (these “Terms”) for amp fit’s at home fitness device known as Amp One (“Product”), website, https://ampfit.com(the “Website”), and the related mobile application(s) (the “App”). The Website and App, together with any content, tools, features and functionality offered on or through the Website or the App, are collectively referred to as the “Services”.
By purchasing a new or refurbished Product from amp fit or from an amp fit authorized reseller, you, or the recipient of the Product, are agreeing to be bound by these Terms and the terms of the Cancellation, Return Policy and Limited Warranty included with your purchase, which govern your access to and use of the Product and the Services. These Terms do not apply to purchasers who have a separate written contract with amp fit which covers the purchase, service and use of the Product. A “recipient” is an individual who received a new or refurbished Product as a gift from the original purchaser; the recipient is considered the owner of the original membership attached to that Product. Please read these Terms carefully, as they include important information about your legal rights. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Product and Services. If you use the Product or Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
ARBITRATION NOTICE: SECTION 9 CONTAINS AN ARBITRATION AGREEMENT INCLUDING A CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS, YOU AND AMP FIT AGREE TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE THESE TERMS AND AMP FIT’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU AND AMP FIT WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION AGREEMENT AS EXPLAINED IN SECTION 9.
1. PRODUCT AND SERVICE ELIGIBILITY
You must be 18 years of age or older and reside in the United States to purchase the Product and the Services. Minors under the age of majority in their jurisdiction but that are at least 15 years of age are only permitted to use the Product and the Services if the minor’s parent or guardian accepts these Terms on the minor’s behalf prior to use of the Services. If you are the parent or guardian of a person under the age of 18, and you decide to make the Services available to such minor, you may establish an Account (as defined below) in your name for the benefit of such minor. You are responsible for providing and maintaining up-to-date and accurate contact information, including your telephone number and email address, and other information on your Account. Children under the age of 15 are not permitted to use the Product or the Services. By using the Product or the Services, you represent and warrant that you meet these requirements.
2. PRODUCT ORDERS; INSTALLATION
2.1. Product Orders. amp fit accepts orders for the Product through the Website. Unless otherwise specified at the time of purchase, you must pay for the Product when you place the order. All Products ordered will be delivered to the shipping address you provide in accordance with Section 2.4. It is your responsibility to ensure that your shipping addresses is complete and correct. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the Product and receipt of payment in full from you, provided that we will refund any fees that you prepaid for the Product if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Website or to your email address after your payment has been processed. Please see our Cancellation, Return Policy and Limited Warranty for further information. You further acknowledge and agree that your purchase of the Product will automatically be deemed to include a twelve (12)-month subscription to use the App, subject to the terms and conditions set forth herein. Following the twelve (12)-month subscription period, you may cancel your subscription to the App as set out in Section 3.3.
2.2. Installation. By purchasing the Product, you agree to allow and provide amp fit or its authorized designees access to your premises and electrical power for the purpose of installing or relocating the Product (if and to the extent that amp fit agrees to undertake such activities). You are responsible for reviewing and complying with the Installation Guidelines, including by moving and removing furniture or valuables from the work area prior to our arrival, as the work area must be clear of obstacles. Installation, uninstallation, or relocation may not be performed if amp fit (or its designee) arrives to your premises and no adult is present or determines that it does not have appropriate access or cooperation from those on-site. Installation, uninstallation, or relocation may also be denied if dangerous or unhealthy conditions are present, such as possible code violations, and amp fit reserves the right to refuse or reschedule installation, uninstallation, or relocation work due to unsafe conditions which include, without limitation, extreme temperatures, natural disasters or the existence of other hazards. If amp fit’s (or its designee’s) ability to complete installation, uninstallation, or relocation of the Product is impaired by you or circumstances beyond our control, amp fit (or its designee) may elect to not provide the aforementioned installation services at amp fit’s sole discretion. amp fit is not responsible for choice of location of installation or relocation and is not responsible for damage or injury resulting from installation at an improper location, such as one without adequate structural support or adequate or safe power supply. You are solely responsible for determining whether the Product is appropriate for your home, and you accept that inability to install or relocate the Product or improper Product function as the result of your choice of location of installation are not valid claims under the Cancellation, Return Policy and Limited Warranty and do not establish a basis for receiving a refund under such policies. You acknowledge and agree that the Product must be adhered to a wall and that there may be damage to the wall, paint, or structure, and that you are fully responsible for any such damage. amp fit is not responsible for any such damage, nor is amp fit responsible for any damage or injury caused by self-installation or other unauthorized installation or maintenance, repair, or removal. amp fit may, in its sole discretion, offer uninstallation services for an additional uninstallation fee, provided that for any such uninstallation service, amp fit will not be responsible for repairing any changes made to the premises or any resulting damage or injury caused by removal of the Product.
2.3. Pre-Orders. We may offer certain eligible participants, subject to the terms and conditions set forth herein, the opportunity to place a pre-order for the Product (a “Per-Order”) before the date on which it becomes publicly available for purchase (the “Release Date”). Please note that a limited quantity of Pre-Order inventory will be available. A Pre-Order requires a deposit that will be charged upon placing your Pre-Order, which may be applied, as a redeemable code, toward the full purchase price of the Product after the Release Date. The deposit cannot be combined with other discounts, promotions, or special offers. We will notify you once the Release Date is confirmed. In order to secure your Pre-Order, you’ll need to complete your order through the Website in accordance with the terms set forth above. You may request a full refund of the Pre-Order deposit upon the earlier of: (1) the date on which you used your Pre-Order redeemable code to purchase a Product and (ii) twelve (12) months from the date of your Pre-Order. If you do not cancel your Pre-Order within the specified timeframe, the amount paid by you for the Pre-Order will be non-refundable. Pre-Orders are personal to the purchaser and may not be resold to any third party without our express written consent. We reserve the right to cancel a Pre-Order at any time for any lawful reason prior to our delivery of the Product and receipt of payment in full from you. In such cases, any prepaid amounts will be refunded. Please refer to our Cancellation, Return Policy and Limited Warranty for further details. We will provide estimated delivery timelines after the Release Date. You acknowledge and agree that the delivery date for Pre-Orders is not guaranteed, and the actual shipping date will depend on the courier’s schedule and our then-current inventory levels, and, as such, actual delivery of the Product may occur earlier or later than projected. Please note that delivery delays may also arise due to unforeseen circumstances beyond our control.
2.4. Shipping and Delivery. The Product is not offered or intended for sale outside of the United States. amp fit will not ship any Product outside of the United States, and you will be solely and completely responsible for any purchase or use of the Product outside of the United States. To the extent permitted by applicable law, amp fit will not accept responsibility or liability associated with any loss, damage, or other injury caused by your purchase or use of the Product outside of the United States. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined or in which the Product is used. We are not liable or responsible if you violate any such law(s). Title to the Product and risk of loss will pass to you upon delivery of the Product to a carrier. You acknowledge that all scheduled shipment dates are estimates only. amp fit will make commercially reasonable efforts to meet the scheduled shipment dates, but in no event will amp fit be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. Any estimated arrival or delivery date provided by amp fit is not a guarantee. Although amp fit will make commercially reasonable efforts to meet estimated delivery dates, delivery of the Product may take more or less time than estimated and amp fit disclaims any loss, damage, or injury resulting from a delay in arrival or delivery. Deliveries that are refused may be returned to us, and it may take up to sixty (60) days for returned Products to be processed for any potential refund or replacement (less any applicable restocking fee). Please refer to our Cancellation, Return Policy and Limited Warranty for further details.
3. USER ACCOUNTS; SALE OF PRODUCTS AND SERVICES
3.1. User Accounts. To use certain of the Services, you may need to create an account or link another account, such as your Apple, Facebook or Google account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the Website or the App. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us via email support@ampfit.com or contact us via our Website if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed you, or we previously banned you, from any of our Services, unless we provide written consent otherwise.
3.2. Subscription Payment. If you purchase a Product, buy or subscribe to any of our paid Services, including a subscription to use the App, you agree to pay us the applicable fees and taxes in U.S. Dollars. Failure to pay these fees and taxes will result in the termination of your access to the paid Services. You agree that (a) if you purchase the Product, which includes a twelve (12) month subscription to the App, or a recurring subscription to the App or any of the Services, we may store and continue billing your payment method (e.g. credit card) to avoid interruption of such Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to your subscription plan will take effect following reasonable notice to you. All subscriptions are payable in accordance with payment terms in effect at the time the subscription becomes payable. Payment can be made by credit card, debit card, or other means that we may make available. Subscriptions will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.
3.3. Subscription Renewals and Cancellations. You agree that if you purchase a subscription, your subscription will automatically renew at the subscription period frequency referenced on your subscription page (or if not designated, then monthly) and at the then-current rates, and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. To avoid future subscription charges, you must cancel your subscription at least five (5) days before the subscription period renewal date using the Website. If you cancel your subscription, your content or data associated with your Account will no longer be available to you, and amp fit may delete or remove any such content or data.
3.4. No Subscription Refunds. Except as expressly set forth in these Terms, payments for any subscriptions to the Services are nonrefundable and there are no credits for partially used periods. Following any cancellation by you, however, you will continue to have access to the paid Services through the end of the subscription period for which payment has already been made.
3.5. Payment. You acknowledge and agree that all information you provide with regards to the Product or any of our paid Services, including without limitation, credit card, Debit Card, Affirm, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the availability of the Product or any paid Services, and (b) refuse to allow any user to purchase the Product or any paid Services. When you purchase the Product or any paid Services, you (a) agree to pay the price for such Product or Services, and all installation, shipping and handling charges and all applicable taxes and interest in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, or through Affirm or other means that we may make available. Except for purchases through our buy now pay later feature, orders will not be processed until payment has been received in full, and any holds on your account by Affirm or any other payment processor are solely your responsibility.
4. LOCATION OF OUR PRIVACY POLICY AND OTHER POLICIES
4.1. Privacy Notice. Our Privacy Notice describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Notice located at https://ampfit.com/pages/privacy-policy and our Consumer Health Data Privacy Notice at https://ampfit.com/pages/health-privacy
4.2. Other Policies. Please visit our Cancellation, Return Policy and Limited Warranty for further information located at https://ampfit.com/pages/cancellation-return-warranty
5. RIGHTS TO USE THE SERVICES
5.1. Right to Use Services. We hereby permit you to use the Services for your personal and non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that amp fit, in its sole discretion, may elect to take.
5.2. Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
(b) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
(c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(d) use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(e) exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
(f) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(g) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(h) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(i) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(j) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(k) submit, transmit, display, perform, post or store any content that is unlawful, defamatory, obscene, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, abusive, hateful, or cruel, , or otherwise use the Services in a manner that is obscene, excessively violent, harassing, hateful, cruel, abusive, pornographic, inciting, organizing, promoting or facilitating violence or criminal activities;
(l) violate any applicable law or regulation in connection with your access to or use of the Services; or
(m) access or use the Services in any way not expressly permitted by these Terms.
5.3. Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App will be available in any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from amp fit. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from amp fit.
5.4. Mobile Software from the Apple App Store. The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to your use of the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and amp fit, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store’s applicable terms of use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and amp fit acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and amp fit acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, amp fit, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and amp fit acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the App, 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.
5.5. Updates. From time to time, amp fit may at its discretion provide updates to software which is utilized in connection with the Product or the Services in order to provide bug fixes, enhanced functions, missing plug-ins and/or new versions (collectively, “Updates”). Installing such Updates may be necessary in order for you to use or continue to use the Product or to access, download, or use the App or the Services. By agreeing to these Terms and using the Product and/or the Services, you agree to receive such Updates automatically. You may be able to manage Updates to certain content provided through the App via settings. If it is determined, however, that the Update will fix a critical security vulnerability or critical operability issue related to the App, or will prevent abuse, the Update may be completed irrespective of your Update settings in the App or the Product. If you seek to prevent such Updates from occurring, you may be prevented from using the Product and/or the Services. All Updates will form part of the Product or Services (as applicable) and are subject to these Terms, unless any such Updates are accompanied by separate terms.
5.6. Beta Offerings. From time to time, we may, in our sole discretion, include certain test or beta features or products in the Services (“Beta Offerings”) as we may designate from time to time. Your use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Offering is at your sole risk. You agree that once you use a Beta Offering, your content or data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Offering back to the prior non-beta version. If we provide you any Beta Offerings on a closed beta or confidential basis, we will notify you of such as part of your use of the Beta Offerings. For any such confidential Beta Offerings, you agree to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without our prior written consent.
6. Ownership and Content
6.1. Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that amp fit and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.
6.2. Ownership of Trademarks. amp fit’s name and trademarks, and all related names, logos, product and service names, designs and slogans are trademarks of amp fit or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
6.3. Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of amp fit, and amp fit may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to amp fit any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
6.4. Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, submit or permit access to information regarding your activities or other content (e.g., activity leaderboards, badges, etc.) to be made available through the Services (“Your Content”). In order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content but solely as required to be able to operate, provide and improve the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. As part of the foregoing license grant you agree that the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services. In addition, if you choose to upload, share, post or publish Your Content (other than content posted privately for non-public display), Your Content may be used by us for our marketing efforts, posted to our site, or otherwise made publicly available. Subject to these Terms, by uploading, sharing, posing or publishing Your Content, you hereby grant us a royalty free, transferable, sub-licensable, worldwide and irrevocable license to use, reproduce, distribute, prepare derivative works of, display, make publicly available and perform Your Content and derivative works thereof on our sites and social network accounts and use such content including in connection with our marketing efforts. To the fullest extent permitted by applicable law, amp fit reserves the right, and has absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
7. Third Party Services and Materials
Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that amp fit is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
8. Disclaimers, Limitations of Liability and Indemnification
8.1. Disclaimers.
(a) Your access to and use of the Product and the Services are at your own risk. Except as provided in the Limited Warranty, you understand and agree that the Product and Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, amp fit, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “amp fit Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. The amp fit Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Product or the Services; (b) any harm to your physical premises, computer system, loss of data, or other harm that results from your installation of, access to or use of the Product or the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Product or the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Product or the Services; and (f) any non-conformance or defect in the Product, including incurred during, or as a result of, any installation of the Product by anyone other than amp fit or its authorized designees. No advice or information, whether oral or written, obtained from the amp fit Entities or through the Product or the Services, will create any warranty or representation not expressly made herein.
(b) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 8.2 BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(c) THE AMP ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR PRODUCT OR SERVICES.
(d) YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE AMP ENTITIES WILL BE RESPONSIBLE FOR.
8.2. Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE AMP ENTITIES BE LIABLE (A) FOR INDIRECT DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT OR SERVICES) OR RELATED TO UPDATES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCT, SERVICES, UPDATES, OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE AMP ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER INDIRECT CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, INSTALLATION, USE, PERFORMANCE, REPAIR OR MAINTENANCE OF THE PRODUCT OR SERVICES, INCLUDING ANY UPDATES. THE AMP ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY INDIRECT DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE LESSER OF ACTUAL DAMAGES OR THE PURCHASE PRICE PAID TO THE AMP ENTITIES BY YOU FOR THE PRODUCT, SERVICES, OR UPDATES THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.3. Indemnification. By entering into these Terms and accessing or using the Product or Services, you agree that you shall defend, indemnify and hold the amp fit Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the amp fit Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Product or Services; (d) Your Content, or (e) your negligence or wilful misconduct. If you are obligated to indemnify any amp fit Entity hereunder, then you agree that amp fit (or, at its discretion, the applicable amp fit Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether amp fit wishes to settle, and if so, on what terms, and you agree to fully cooperate with amp fit in the defense or settlement of such claim.
9. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
9.1. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. AS SET FORTH BELOW, YOU AND AMP FIT AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH IN THIS SECTION 9 (“ARBITRATION AGREEMENT”).
9.2. Claims subject to arbitration. Except as provided below, you and amp fit agree that any cause of action, legal claim, dispute, controversy, or claim relating in any way to these Terms or amp fit’s services and/or products, including the Services, and any use or access or lack of access thereto (collectively, “claim(s)”), including claims by or against your and our respective past, present, and future affiliates or agents or other users or beneficiaries of your account, will be resolved by binding, individual arbitration according to Sections 9.7, 9.8, and 9.9. By agreeing to arbitrate, you and amp fit waive the rights to sue in court and trial by jury.
9.3. WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND AMP FIT EACH AGREE THAT YOU AND WE MAY BRING A CLAIM ONLY IN AN INDIVIDUAL CAPACITY ON YOUR OR OWN BEHALF AND YOU AND WE MAY NOT SEEK RELIEF THAT WOULD AFFECT OTHER USERS OF AMP FIT’S SERVICES AND/OR PRODUCTS, INCLUDING THE SERVICES. YOU AND WE HEREBY WAIVE THE RIGHT TO BRING CLAIMS AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). IF THE DISPUTE IS SUBJECT TO ARBITRATION, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO CONSOLIDATE INDIVIDUAL ARBITRATIONS INTO CLASS PROCEEDINGS UNLESS ALL PARTIES AGREE. For the avoidance of doubt, however, nothing in this Section shall limit or affect the provisions of Section 9.8 authorizing the use of “Batch Arbitration.” If there is a final judicial determination (meaning one that is not subject to any further appeal or recourse) that any claim or request for particular relief cannot be arbitrated in accordance with the limitations of this Section 9.3, then only that claim or request for relief may be brought in court as specified in Section 9.11. All other claims and requests for relief remain subject to this Section 9.3.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS YOU AND AMP FIT MUTUALLY AGREE OTHERWISE, OUR AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this Section are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
THIS CLASS WAIVER APPLIES IRRESPECTIVE OF WHETHER A CLAIM IS BROUGHT IN ARBITRATION, SMALL CLAIMS COURT, OR IN ANY OTHER FORUM.
9.4. Notice of dispute and informal dispute resolution process first. You and amp fit agree to first engage in an informal dispute resolution process to try to resolve any claim before you or we may bring the claim in arbitration or small claims court, as applicable. Specifically, before commencing arbitration or bringing a claim in small claims court, the claimant must provide the other party with a written Notice of Dispute that includes your username, a detailed description of the dispute, any relevant documents, and the specific relief sought. If you are the claimant, the Notice of Dispute must also include your residence address (and mailing address if different), the email and phone number associated with your account, and your signature. Any Notice of Dispute you send to us should be mailed to amp fit Inc., ,110 Greene St #503 New York, NY 10012 (“Notice Address”). Any Notice of Dispute we send to you will be sent to the email address associated with your account. You and we agree to attempt to resolve the claim within 60 days from the date a complete Notice of Dispute is sent. If you and amp fit are unable to resolve the claim within the 60-day period, you or we may commence arbitration or small claims court proceedings, but no arbitration or small claims court proceedings may be commenced during this 60-day period. Both you and amp fit agree that this Notice of Dispute and informal dispute resolution procedure is a condition precedent which must be satisfied before either you or we initiate any arbitration or small claims court proceeding against the other party. If any aspect of the requirements of the Notice of Dispute and informal dispute resolution process have not been met, a court can enjoin the filing or prosecution of an arbitration or the assessment of any arbitration fees. In addition, unless prohibited by law, the arbitration provider cannot accept or administer the arbitration, nor assess any fees for such an arbitration. If the arbitration is already pending, it must be dismissed. Unless all parties otherwise agree, the Notice of Dispute process shall be individualized such that a separate Notice of Dispute must be sent for each individual claimant each time either party initiates a dispute, even if the same law firm or group of law firms represents multiple claimants in similar cases.
9.5. Small claims court election. If you and we are unable to resolve a claim within the 60-day informal dispute resolution period, instead of filing arbitration, and notwithstanding the forum selection clause in Section 9.11, you or we can bring the claim in any “small claims court” consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding. Additionally, if you or we elect to file a claim in arbitration and the claims asserted could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. For avoidance of doubt, if a claimant elects to bring a claim in arbitration that may have originally been filed in small claims court, then either the claimant or the respondent may elect to have the case refiled in small claims court. When a party provides written notice of a small claims court election, the arbitration proceeding will be administratively closed. Any dispute about whether a claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the claim does not qualify for small claims court. If you don’t bring your claim in small claims court, (or if you or we appeal a small claims court judgment to a court of general jurisdiction), then the claims must be resolved by binding, individual arbitration.
9.6. Issues for courts and arbitrators. Only a court can decide claims involving intellectual property rights, determine whether a claim or particular request for relief involves public injunctive relief and must be severed from arbitration consistent with Section 9.3, resolve certain issues relating to the scope and enforceability of this Arbitration Agreement (including any specific provision herein, including but not limited to Section 9.8 (mass arbitration filings, bellwethers, and batch arbitration), or whether Section 9.3 (requiring individual arbitration) or Section 9.4 (requiring pre-arbitration Notice of Disputes) have been violated). You and amp fit agree that any other question not otherwise specifically delegated to the court in this section shall be resolved by an arbitrator. Both courts and arbitrators shall be empowered to enforce the applicable statutes of limitations for any demands filed in arbitration or claims filed in small claims court. For avoidance of doubt, any demand for arbitration under this Arbitration Agreement shall be made before the applicable statute of limitations to a claim has run.
9.7. How arbitration works. You and amp fit agree that any claim will be settled by final and binding arbitration, using the English language, administered by the National Arbitration and Mediation (“NAM”) Comprehensive Rules and Procedures and, when applicable, the NAM Supplemental Rules for Mass Arbitration Filings (together the “NAM Rules”) in effect at the time the claim is filed (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with amp fit, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. The NAM Rules, as well as instructions on how to file a demand for arbitration, are available at https://www.namadr.com/resources/rules-fees-forms/ or by writing to the Notice Address. You may serve amp fit with any arbitration demand by mail to the Notice Address. If amp fit has a dispute with you, we will send an arbitration demand to the email address associated with your account. If NAM cannot or will not administer the arbitration in accordance with this arbitration provision, another arbitration provider will be selected by you and us or, if there is no agreement, by the court. The arbitrator will conduct hearings, if any, by telephone or videoconference, unless the arbitrator determines that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a final reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based (“Arbitral Decision”). Except as provided in Section 9.3, the arbitrator can award the same relief that a court can award under applicable law, including sanctions against any represented party or counsel permitted under NAM Rules, Federal Rule of Civil Procedure 11(c), or other applicable federal or state law. The existence and content of the arbitration proceedings, including documents and briefs submitted by the parties; any correspondence from NAM; and correspondence, orders, and awards issued by the arbitrator (together, the “Confidential Information”) shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party, unless disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings or related court proceedings, is compelled by court order, or is otherwise specifically permitted by this Arbitration Agreement. Arbitration will be handled by a sole arbitrator in accordance with the NAM Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction.
9.8. Mass arbitration filings, bellwether protocol, and batch arbitration. The following rules shall apply to a Mass Filing. A Mass Filing shall mean the filing of twenty-five (25) or more similar demands for arbitration against the same party or related parties and representation for the parties is consistent or coordinated across all cases. The twenty-five (25) or more demands need not be filed simultaneously.
i. NAM’s Supplemental Rules for Mass Arbitration Filings shall apply if the parties’ dispute is deemed by NAM, in its sole discretion pursuant to the NAM Rules and this Arbitration Agreement, to be part of a Mass Filing.
ii. Within five (5) business days of being notified by NAM that arbitration demand(s) have been filed, any party may file a request for appointment of a procedural arbitrator with NAM to determine whether a particular demand(s) is/are part of the Mass Filing as defined by the NAM Rules, procedures or requirements based on that determination.
iii. Any Mass Filing shall be subject to a bellwether protocol intended to reach a fair and speedy resolution of all claims included in the Mass Filing. In any Mass Filing, NAM shall randomly select six (6) demands for arbitration to proceed, and then claimants and respondents shall each select two (2) demands for arbitration to proceed, for a total of ten (10) arbitrations (the “Bellwether Arbitrations”). Each Bellwether Arbitration shall be assigned to a separate and different arbitrator. In the meantime, no other arbitration demands may be filed or deemed filed in arbitration, and NAM shall not accept or administer arbitrations in violation of these procedures. While the Bellwether Arbitrations are adjudicated, all other demands for arbitration that are part of the Mass Filing shall be stayed, and no party shall be responsible for paying any administrative or arbitrator fees (other than NAM’s initial filing/administrative fees, and Procedural Arbitrator fees, if applicable) while the Bellwether Arbitrations are adjudicated. To the extent permitted by applicable law, any statutes of limitations and any filing fee or other arbitral fee deadlines regarding those demands shall be tolled beginning when the Mass Filing claimant first provided the other party with its Notice of Dispute, as defined above, and shall remain tolled until your claim is selected for a Bellwether Arbitration, Batch Arbitration, withdrawn, or otherwise resolved.
iv. Arbitrators will complete each Bellwether Arbitration, including rendering the Arbitral Decision, within 120 days of its initial pre-hearing conference. You and amp fit agree that an arbitrator for one Bellwether Arbitration may consider the Arbitral Decision rendered in another Bellwether Arbitration, but an arbitrator’s rulings will not be binding in proceedings involving different users. You and amp fit agree to work in good faith to ensure that this deadline is met. Any extension of time that would result in an Arbitral Decision being rendered more than 120 days after the initial pre-hearing conference must be approved by NAM.
v. Within 90 days following the resolution of all ten (10) of the Bellwether Arbitrations, you and amp fit agree that the parties shall engage in a global mediation of all remaining demands for arbitration comprising the Mass Filing. The mediation shall be administered by NAM, with mediator fees paid by amp fit. Notwithstanding the confidentiality provisions in Section 9.7, Confidential Information may be shared with the mediator, subject to any applicable protective orders or federal, state, or common law right to privacy.
vi. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within thirty (30) days following the mediation, you and amp fit agree that NAM shall administer any remaining unresolved demands for arbitrations in the Mass Filing pursuant to the following terms: (1) NAM shall group remaining arbitration demands into batches of 100 demands per batch (and to the extent that there are fewer than 100 demands left, a final batch consisting of the remaining demands); (2) appoint one arbitrator for each batch; (3) administer the batches concurrently; (4) provide for the resolution of each batch a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) by video conference or in a place to be determined by the arbitrator giving due consideration to the convenience of the parties, and one final award (“Batch Arbitration”). Arbitrators may consider the Arbitral Decisions rendered in other batches, but Arbitral Decisions in one batch of arbitration demands shall have no precedential effect on other batches. If this Section 9.8(vi) is deemed unenforceable as to a particular claimant or batch, then it shall be severed as to that claimant or batch, and those parties shall arbitrate in individual proceedings.
vii. You and amp fit agree that the procedures set forth in Section 9.8 are designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings, including the claims of users who are not selected for a Bellwether Arbitration.
viii. Notwithstanding anything else in this Arbitration Agreement, you and amp fit agree that a court of competent jurisdiction will have the authority to enforce Section 9.8 and, if necessary, to enjoin the filing or prosecution of arbitrations or the assessment or collection of any fees or costs related to a Mass Filing that do not comply with Section 9.8. For the avoidance of doubt, the court, and not the arbitrator, shall decide whether Section 9.8 (or any provision thereof) is enforceable. If a court decides that the Bellwether Arbitration or Batch Arbitration procedures set forth in Section 9.8 are not enforceable (and after exhaustion of all appeals), then all cases may be filed in individual arbitration. If any part of Section 9.8 is found to be unenforceable, then the parties agree that that part shall be severed, and the remaining parts shall be enforced.
9.9. Costs of Arbitration. Except as otherwise provided for herein, payment of all filing, administrative, and arbitrator fees, costs, and expenses will be governed by the NAM Rules, unless a different allocation is required by court order or for this Arbitration Agreement to be enforced. If you demonstrate that you are experiencing extreme economic hardship, are entitled to a fee reduction or waiver under applicable law, or any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, amp fit will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding.
Fees and costs may be awarded as provided pursuant to applicable law. An arbitrator may allocate fees and costs should it determine that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the Arbitral Decision.
9.10. Opt-Out. YOU HAVE THE RIGHT TO OPT-OUT AND NOT BE BOUND BY THIS ARBITRATION AGREEMENT BY SENDING WRITTEN NOTICE OF YOUR DECISION TO OPT-OUT TO THE NOTICE ADDRESS. TO OPT OUT, YOU MUST SEND US YOUR NAME, USERNAME, RESIDENCE ADDRESS, EMAIL ADDRESS, AND PHONE NUMBER YOU USE FOR YOUR ACCOUNT, AND A STATEMENT PERSONALLY SIGNED BY YOU THAT YOU WANT TO OPT OUT OF REVISIONS TO THE ARBITRATION PROVISION. IN THIS OPT OUT NOTICE, YOU MUST ALSO SPECIFY THE “EFFECTIVE DATE” AT THE BEGINNING OF THE TERMS WHOSE ARBITRATION PROVISION YOU ARE OPTING OUT OF. THE NOTICE MUST BE SENT TO AMP FIT WITHIN THIRTY (30) DAYS OF YOUR FIRST REGISTERING TO USE THE SERVICES OR AGREEING TO THESE TERMS; OTHERWISE YOU SHALL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THESE TERMS. IF YOU HAVE PREVIOUSLY AGREED TO ARBITRATION AS PART OF AN EARLIER VERSION OF THE TERMS, THEN YOU MAY OPT OUT OF LATER REVISIONS TO THE ARBITRATION PROVISION WITHIN THIRTY (30) DAYS OF FIRST RECEIVING NOTICE OF THOSE REVISIONS, IN WHICH CASE THE PRIOR VERSION OF THE ARBITRATION PROVISION WILL CONTINUE TO APPLY TO YOU. IF YOU OPT-OUT OF THESE ARBITRATION PROVISIONS AND HAVE NOT PREVIOUSLY AGREED TO A VERSION OF THE TERMS THAT INCLUDED AN ARBITRATION PROVISION, AMP FIT ALSO WILL NOT BE BOUND BY THE ARBITRATION AGREEMENT.
9.11. What law applies and what court will hear non-arbitrable claims. For any claim that is not arbitrated or resolved in small claims court, you and amp fit agree that it will be resolved exclusively in the U.S. District Court for the Southern District of New York or a state court located in the State of New York, U.S.A.. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim. All claims, whether in court or arbitration, are governed by the laws of the State of New York without regard to conflict of law principles. You and amp fit agree that the Federal Arbitration Act (“FAA”) applies to and governs the interpretation and enforcement of this Arbitration Agreement, and pre-empts any conflicting state law.
9.12. Severability. Except for the class waiver in Section 9.3, if any provision of this Arbitration Agreement is found unenforceable, that provision will be severed and the balance of the Arbitration Agreement’s provisions will remain in full force and effect. Consistent with Section 9.3, if applicable law precludes enforcement of this Arbitration Agreement as to any particular claim for relief or remedy (such as public injunctive relief), then that claim or remedy (and only that claim or remedy) may be brought in court consistent with Section 9.11, while the remaining claims for relief (such as individual damages) will still be resolved through binding arbitration.
10. Additional Provisions
10.1. SMS or MMS Messaging. Certain portions of the Services may allow us to contact you via text and/or multi-media messages. You agree that amp fit may contact you via text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with your use of the Services, including for marketing purposes. You understand that you may opt out of receiving text messages from us at any time, either byreplying to our text with the word “STOP” using the mobile device that is receiving the messages. If you do not choose to opt out, we may contact you as outlined in our Privacy Notice.
10.2. Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms
10.3. Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by amp fit will terminate automatically. Additionally, amp fit may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If amp fit deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, amp fit may, but is not obligated to, delete any of Your Content. amp fit shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by amp fit or you. Termination will not limit any of amp fit’s other rights or remedies at law or in equity.
10.4. Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to amp fit for which monetary damages would not be an adequate remedy and amp fit shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
10.5. California Residents. 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.
10.6. U.S. Government Restricted Rights. The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
10.7. Export Laws. You agree that you will not export or re-export, directly or indirectly, the Product, Services and/or other information or materials provided by amp fit hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Product and the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product or the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
10.8. Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by amp fit but may not be assigned by you without the prior express written consent of amp fit. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in New York, New York. You and amp fit agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
10.9. How to Contact Us. You may contact us regarding the Services or these Terms via email support@ampfit.com or contact us via our Website.