SESH FITNESS APP TERMS OF SERVICE
Date last revised: December 10, 2023
These Terms provide that all disputes between you and us will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court), INCLUDING CLASS ACTION LAWSUITS. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Before utilizing the Service, you should carefully review these Terms. If you do not agree to these Terms, or are not eligible to use the Service, then you may not use the Service. Your use of the Service is consideration for and acceptance of these Terms.
- Services are not Medical Advice
NEITHER WE NOR THE SERVICES PROVIDE MEDICAL ADVICE. THE CONTENT OF THE SERVICES, INCLUDING ANY COACHING, TEXT, GRAPHICS, IMAGES, INFORMATION, OR OTHER SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTION YOU MAY HAVE REGARDING A MEDICAL CONDITION.
PRIOR TO PARTICIPATING IN ANY PROGRAM, WORKOUT, TRAINING, COURSE, ACTIVITY, EXERCISE, OR USE OF ANY PRODUCT, SERVICE, PROGRAM, WORKOUT, OR EXERCISE DISCUSSED ON OR OFFERED AS PART OF THE SERVICE, OR IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION, SEEK THE ADVICE OF YOUR HEALTHCARE PROVIDER. BY USING THE SERVICES, YOU AGREE, REPRESENT, AND WARRANT THAT YOU HAVE RECEIVED CONSENT FROM YOUR PHYSICIAN TO PARTICIPATE IN WELLNESS AND FITNESS PROGRAMS, WORKOUTS, EXERCISES, OR ANY OF THE RELATED ACTIVITIES MADE AVAILABLE TO YOU IN CONNECTION WITH THE SERVICES.
- Physical Activity Disclaimer and Your Assumption of Risk
EVERYONE'S CONDITION AND ABILITIES ARE DIFFERENT. PARTICIPATING IN THE ACTIVITIES PROMOTED BY OUR SERVICES AND THE COACHES IS AT YOUR OWN RISK. IF YOU CHOOSE TO PARTICIPATE IN THESE ACTIVITIES, YOU DO SO OF YOUR OWN FREE WILL AND ACCORD, KNOWINGLY AND VOLUNTARILY ASSUMING ALL RISKS ASSOCIATED WITH SUCH ACTIVITIES. ACTIVITIES PROMOTED BY THE SERVICES MAY POSE RISKS EVEN TO THOSE WHO ARE IN GOOD HEALTH.
YOU UNDERSTAND AND AGREE THAT WE WILL NOT CARRY OUT AND ARE NOT RESPONSIBLE FOR ANY PHYSICAL INSPECTION, SUPERVISION, PREPARATION, EXECUTION, OR CONDUCT OF ANY ACTIVITIES RELATED TO OR ACCESSED OR DISCOVERED USING THE SERVICES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY, OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION, OR NEGLIGENCE OF US OR BY THE ACTION, INACTION, OR NEGLIGENCE OF COACHES OR OTHERS.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. NEVER DISREGARD, AVOID, OR DELAY IN OBTAINING MEDICAL ADVICE FROM YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ OR EXPERIENCED AS PART OF THE SERVICES. WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIAN, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN THE SERVICES. RELIANCE ON ANY INFORMATION PROVIDED BY US, OUR EMPLOYEES, COACHES, OR OTHER USERS OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
- Our Services
Our Services offer Users a platform to access and pay for workouts, training programs, exercise-based content, nutritional programming, Coaching, and other related activities. Our Services also provide a platform to connect clients ("Clients") with independent contractor Coaches (the "Coaches,” collectively with Clients referred to herein as the "Users"), where Coaches can connect with Clients to provide training and instruction ("Coaching Services"). The Coaching Services may include, without limitation, direct interaction between Clients and Coaches, providing training instruction and supporting materials, and sharing information and feedback among Users using the Services.
We are not responsible or liable for the performance of a User or any aspect of the interactions among Users related to the Services, including but not limited to the suitability, reliability, timing, legality, failure to provide, acts or omissions, or any other aspect whatsoever of Users related to the Services or Coaching Services. We make no representations or warranties whatsoever with respect to any aspect, including accreditation, registration or licensing, of any Coach or the Coaching Services requested and provided by Users through the Service.
Access to the Service, or to certain features of the Service, may require you to pay fees, which are clearly indicated on the App and Site. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and all payments are earned when paid and nonrefundable. We may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going forward basis at any time. If you do not agree with the price change, you have the right to reject the change by unsubscribing to the Service. We will charge the payment method you specify at the time of purchase. You authorize us to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, we may seek preauthorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You further agree that you may choose to make automatic monthly payments. You may cancel the Services at any time. Upon cancellation, your subscription to the Services will stop at the end of the then-current billing cycle.
- Information, Accounts, and Registration
To access the Service, you must register for an account. When you register you will be required to provide us with some information about yourself. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
7. Protecting Rights
We respect other people’s rights and expect you to do the same. You will not post content or take any action that infringes or violates the rights of others or otherwise violates the law. We have the right to remove any content or information you post on the App, Site, or Services if we believe that it violates the Terms or decency standards determined at our sole discretion. If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. If we discover that you infringe other people’s intellectual property rights, we will disable your account when appropriate at our sole discretion. You will not use our copyrights or Trademarks or any confusingly similar marks without our prior written permission. You will not post anyone’s identification documents or sensitive financial information on the Services. You will not tag users or send email invitations to non-users without their consent.
8. Alerts and Notices
From time to time we may issue notices or alerts (“Alerts”) to you, or you may choose to set up voluntary Alerts based on certain criteria, to the extent made available by the Service. Automatic Alerts may be sent to you in certain situations, e.g., changes in your registration information. Any voluntary Alerts may be created or deactivated by you pursuant to customizations and preferences chosen by you. We may add or delete categories of Alerts from time to time.
Alerts may be sent to your mobile device or email address, and, based upon your preferences, communicated by additional means, such as, pop-up notices (“Pushes”) or text messages on your mobile device. Because alerts may include health information or other sensitive data, please be aware of the methods you choose for receipt of Alerts. Please be aware that any Alerts may be delayed or prevented from being delivered to you for a variety of reasons; therefore, we do not guarantee the accuracy or timely arrival of Alerts.
9. Mobile Device Usage
Use of the Service may be made available through a browser on a mobile device or through an App running on a mobile device. You are solely responsible for all costs incurred by you with respect to your usage of the Services on a mobile device, including data usage fees and other telecommunications fees. You understand and agree that if you do not accept certain requirements for our Services (i.e. you do not allow us to send you text messages), that certain portions of the Services may be unavailable to you.
When you sign up to receive text messages from us, you acknowledge and agree you will receive such text messages using an auto-dialer to the number you provide, and that your consent for us to send you text messages is not a condition of purchasing any Service. Not all carriers may be included within our text messaging programs. You are free to opt-out of receiving text messages from us at any time. Please see any additional instructions provided to you at the time you sign up.
10. Prohibited Conduct
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights, particularly the rights of Sesh Fitness App, to its intellectual property, which includes copyrights to its workout and nutrition guidance;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate as determined by us;
- interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; (ii) making unsolicited offers or advertisements to other users of the Service; (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted herein or any Materials or any right or ability to view, access, or use any Materials;
- provide Health Information to us that you do not have the authority to provide; or,
- attempt to do any of the foregoing in this Section or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section.
11. Third-Party Services and Offers; Linked Websites
We may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account with us with an account on a third party service, such as Twitter, Facebook, Instagram, or other applications, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to and from the applicable third-party service. Such third-party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
12. Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, we may terminate your permission to use the Service. Additionally, we, in our sole discretion, may terminate your user account or suspend or terminate your access to the Service at any time without notice. We reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by unsubscribing or contacting customer service at email@example.com. If you terminate your account, you will remain obligated to pay all outstanding fees relating to your use of the Service incurred prior to termination.
You represent and warrant that any content you provide (“User Content”), submit or post through the Services will be non-confidential and you hereby grant us a lifetime, non revocable, worldwide right to use and distribute the User Content for its business purposes and without payment to you. We are not liable for any use or disclosure, whether by us, Coaches, or any other User or User Content.
15. Changes to the Terms
We reserve the right, at our discretion, to change these Terms at any time. Please check these Terms periodically for changes. We will notify you of changes via email or banner ad on the App or Site, or through other mechanisms that we determine, at our sole discretion. If you do not accept the changed Terms, you may unsubscribe from the Services or we may terminate your access to and use of the Services. All changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.
16. Ownership; Proprietary Rights; Feedback; Photos
The Service and all associated intellectual property are owned by us. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by us are protected by all relevant intellectual property, proprietary rights, and other applicable laws. All Materials contained in the Service are the property of us or our third-party licensors. Except as expressly authorized by us, you may not make use of the Materials. We reserve all rights to the Materials not granted expressly in these Terms. For any Service that enables you to use any software, Materials, App, content, or other feature owned by us, and ONLY AFTER YOU BECOME A VALIDLY AUTHORIZED USER, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the specific Service, and any related software, content, or other Materials for YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
You may provide us with, or we may solicit, your feedback, ideas, or suggestions with respect to the Services, and you hereby grant to us a perpetual, worldwide, fully transferable, sub-licensable, full-paid up, irrevocable, royalty free license to use such feedback in future modifications of the Service, other products or services, or marketing or materials. We will not, however, disclose such feedback in a way that would identify you without obtaining your permission.
You may also provide us with photographs and testimonials related to the Services or Coaching. Please understand our coaches should never ask you to send personal photographs of any nature. All photographs should be submitted through the App or via an official email address. You agree that photographs and testimonials that you upload to the Site, App, or provide to us by email, or in any other manner, may be used by us on our websites, the App, and affiliated websites, social media pages, marketing, and promotions in perpetuity and without compensation. You represent and warrant that you have all rights to the photograph and testimonial, and you grant us and you grant us a perpetual, non-exclusive, worldwide, fully transferable, sub-licensable, full-paid up, irrevocable, royalty free license to use such photograph and testimonial. You agree to hold us harmless, defend, and indemnify us from any and all liabilities, loss, claims, or causes of action, including reasonable attorney fees and expenses, which may be incurred by us relating to your photographs or testimonials or any violation of the Terms.
17. Challenges and Prizes
17.1 Challenges and Eligibility. We may conduct periodic challenges (“Challenges”). Challenges are open to Users who are eighteen (18) years of age and older that have enrolled in a Challenge (“Contestants”). Contestants must adhere to these Terms and any official rules for the Challenge. Our employees and members of employees’ immediate families and persons in the same household are ineligible. Only one (1) entry per person is accepted. The Challenges are void where prohibited or restricted by law. Winners will be selected and judged by representatives of Sesh Fitness App who will choose the winner based upon multiple factors, including but not limited to body fat reduction, weight reduction, change in appearance, physical transformation, dedication to the Challenge, and other reasonable factors.
17.2 Winners. Winners may be chosen and announced on our social media pages at the conclusion of each Challenge. Each potential winner will be notified by email. The potential winner will be required to sign and return within ten (10) days of notification by Sponsor an Affidavit of Eligibility, Liability and Publicity Release (“Affidavit and Release”), including the potential winner’s full name and street address (no PO Boxes) or the prize will be forfeited and an alternate potential winner may be selected. Until the potential winner has returned the Affidavit of Eligibility and Liability and Publicity Release, the Prize will be considered unclaimed.
17.3 Photographs. To enter and be eligible for a Challenge, Contestant must submit three (3) “before” photographs in “JPG” or similar format using the instructions provided on the App or via email. We may require you to resubmit such photographs. Entries submitted that are not the same person, by modeling agencies, or those that have been e_nhanced o_r altered are void ab initio and will be rejected. Your submission of the photographs is your consent to use the photographs on the Site, App, and affiliated websites, marketing, and promotion in perpetuity without compensation. Contestant represents and warrants that he or she has all rights to the images and all materials submitted by Contestant related to any Service. Contestant grants us a perpetual, royalty-free, non-exclusive license to the photographs and any other material submitted to us by Contestant. We will decide, in our sole discretion, whether to accept Contestant’s photographs or other materials. We will not be responsible for any financial reimbursement to the original copyright holder for the right to publish the photographs as provided herein. We will not be held under any obligation to publish a photo credit to the original copyright holder for the publication of a photograph. Contestant agrees to hold us harmless, defend, and indemnify us from any and all liabilities, loss, claims, or causes of action, including reasonable attorneys’ fees and expenses, which may be incurred by us, arising out of or relating to Contestant’s photographs or any violation of the Terms.
17.4 Prizes. The prize winner will be eligible to receive the applicable prize (the “Prize”) upon the signing of an Affidavit and Release. No portion of the Prize may be transferred except at our sole discretion. We reserve the right to substitute the Prize with a Prize of equal or greater value for any reason. All expenses not specifically identified in the prize are the sole responsibility of the Prize winner. The Prize is subject to availability and is awarded “AS IS” and “WITHOUT ANY WARRANTY OF ANY KIND, express or implied (including without limitation any implied warranty of merchantability or fitness for a particular purpose)”. Acceptance of, participation in, or use of the Prize is at the winner’s sole risk. We are not responsible for any damages whatsoever, and the parties specifically agree that we are not responsible for any damages, whatsoever, including special, indirect, or consequential damages arising out of or in connection with the use of the Prize.
17.5 Taxes. Prize winner is solely responsible for all federal, state, and local taxes, fees, and other expenses associated with the Prize. We may issue the Prize winner a 1099 tax form for the approximate retail value of the Prize. Failure to take or complete any portion of the Prize does not relieve the Prize winner of tax obligations associated with winning the Prize.
17.6 General Conditions. The Challenge and Prizes are subject to all applicable federal, state, and local laws. By participating, the Contestant agrees to be bound by these Terms.
17.7 Waiver of Liability. Each Contestant hereby releases, discharges, holds harmless, and indemnifies us against any and all liability, damages or causes of action (however named or described), with respect to or arising out of any injuries, damages or losses to any person (including death) or property of any kind resulting in whole or in part, directly or indirectly, from acceptance, possession, misuse or use of any prize or participation in any promotional-related activity or participation in this Challenge.
17.8 Challenge Modification. We reserve the right to modify the scheduling of the Challenge without prior notification for any reason and at any time. Any submitted photographs or video posted exhibiting nipples or genitals will be rejected and result in disqualification from the Challenge at our sole discretion.
17.9 Chances of Winning. Odds of winning depend on the number of eligible entries received for a Challenge and physical results of each contestant.
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Sesh Fitness App and its officers, directors, employees, consultants, Coaches, affiliates, subsidiaries and agents (collectively, the “Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to, use of, or alleged use of the Site, App, or Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
19. Disclaimers; No Warranties
THE SITE, APP, SERVICE, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE, APP, SERVICE, COACHING, AND ALL MATERIALS AND CONTENT SUPPLIED BY US, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT WARRANT THAT THE SITE, APP, OR SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, ACCURATE OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE DO NOT ENDORSE, WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES OF ANY OFFERS WHICH MAY BE MADE AVAILABLE TO YOU THROUGH THE SERVICES, AND WE ARE NOT AN AGENT OR BROKER OF SUCH OFFER PROVIDERS. ANY AND ALL FINANCIAL INFORMATION THAT WE RECEIVE FROM THIRD PARTIES OR YOU IS NOT VERIFIED BY US FOR ACCURACY OR ANY OTHER REASON. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
If you access any Service using an Apple iOS or other third party device, you acknowledge that each of those third party companies, such as Apple Inc. (each, “App Provider”), will not be responsible for any damages arising out of the failure of a Service to operate as intended. When accessing any Services by or through an App Provider, you acknowledge and agree that: (i) these Terms are concluded between you and us, and not with the App Provider, and that we are solely responsible for any of our Services (such as mobile applications), and not the App Provider; (ii) the App Provider has no obligation to furnish any maintenance and support services with respect to any of our Services; (iii) in the event of any failure of the Services to conform to any applicable warranty: (a) you may notify the App Provider and the App Provider will refund the purchase price for the Services to you (if applicable); (b) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Services; and (c) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility; (iv) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to our Services or your possession and use of our Services, including without limitation: (x) product liability claims; (y) any claim that our Service fails to conform to any applicable legal or regulatory requirement; and (z) claims arising under consumer protection or similar legislation; (v) in the event of any third party claim that the Service infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms; (vi) the App Provider and its subsidiaries, are third party beneficiaries of these Terms as it relates to your license of the Services, and that, upon your acceptance of these Terms, the App Provider 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; and (vii) you must also comply with all applicable third party terms of service when using the Services. As also mentioned in these Terms, you represent and warrant that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties.
20. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE, APP, SERVICE, COACHING OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAD BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SITE, APP, COACHING, AND SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $500. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS CONTAINED IN THE TERMS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Governing Law
These Terms shall be governed by the laws of the State of Kentucky without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and we agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Jefferson County, Kentucky for the purpose of arbitration, litigation, and all other dispute resolution.
22. Dispute Resolution and Arbitration
YOU AGREE THAT THIS DISPUTE RESOLUTION AND ARBITRATION PROVISION IS IMPORTANT. You and we agree that these Dispute Resolution and Arbitration provisions replace and substantially limit, or eliminate, your right to litigate these cases in federal or state courts, except limited grounds for enforcing the arbitration award. YOU AND WE AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR US FOR (i) TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii) COPYRIGHT INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
22.1 Generally. In the interest of resolving disputes expeditiously and cost effectively, you and we agree that any and all disputes arising in connection with the Site, App, Service, Materials, or otherwise related shall be resolved by binding arbitration. Arbitration shall occur in Louisville, KY and be conducted by one neutral arbitrator. Arbitration may allow for more limited discovery than court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award, and any court of competent jurisdiction may enforce a ruling by the Arbitrator. Our agreement to arbitrate disputes includes disputes based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT BY USING THE SERVICES, SITE, OR APP YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ADDITION TO OTHER RESTRICTIONS AND LIMITS OF LIABILITY CONTAINED WITHIN THESE TERMS.
22.2 Exceptions. Notwithstanding subsection 22.1, we and you both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions related to Trade Secret Misappropriation, Patent Infringement, Copyright Infringement or Misuse, and Trademark Infringement or Dilution through applicable federal, state, or local agencies where such actions are available (“Intellectual Property Infringement Claims”), (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address Intellectual Property Infringement Claims.
22.3 Arbitrator. Any arbitration between you and us will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us.
22.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for Notice is Katy.Ai LLC dba Sesh Fitness, 1862 Production Court, Louisville, KY 40299. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or we, may commence an arbitration proceeding. Any action filed in any court shall be required to be dismissed in lieu of binding arbitration in accordance with these Terms.
22.5 Hearing. Any in person arbitration hearings will take place at a location to be agreed upon in Jefferson County, Kentucky. If the claim is for $10,000 or less, the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules. The payment of all fees will be governed by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. 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 arbitrator’s ruling on the merits.
22.6 No Class Actions. YOU AGREE THAT YOU SHALL NOT BRING CLAIMS AGAINST US AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Except by agreement of the parties, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
22.7 Modifications. In the event that we make any future change to this arbitration provision (other than a change to our address for Notice), you may reject any such change by unsubscribing from the Service.
22.8 International Users. Our websites are controlled, operated, and administered by us from our offices within the United States of America. We make no representation or warranty that the materials contained within our Services are appropriate or available for use at other locations outside of the United States, and access to them from territories where the contents or products available through the Services are illegal is prohibited. You may not use the websites or export the content or products in violation of U.S. export laws and regulations. If you access our websites from a location outside of the United States, you are responsible for compliance with any and all local laws, rules, regulations and ordinances.