LAST UPDATED: APRIL 25, 2021
1.1 Account Creation. In order to use certain features of the Site, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may not create an account if you are younger than 16 years of age. By creating an account, you represent that you are at least 16 years of age, and, to the extent required by law, you have the permission of a parent or guardian to create an account and use the Services. You may terminate or delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account in accordance with Section 8.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information. YOU ARE FULLY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT OCCUR OR ARE CONDUCTED UNDER YOUR ACCOUNT. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may be held liable for any losses incurred by Company or another party due to someone else using your account or password. If you are using a computer that others have access to, you must log out of your account after each session.
1.3 Parents and Guardians. By granting your child permission to use the Services through your account, you agree to the restrictions in Section 3.3(c) below, and understand that you are responsible for monitoring and supervising your child’s usage. If you believe your child is using your account and does not have your permission, please contact us so that we can disable access.
1.4 User Obligations. You agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Site. You also acknowledge and agree that your use of the internet and access to this Site is solely at your own risk. You should also understand that the confidentiality or any communication or material transmitted to/from a Site over the internet or other form of global communication network cannot be guaranteed. The Company is not responsible for the security of any information transmitted to or from the Site.
- Subscription Fees. In order to access certain functionality of the Site, you may be required to pay subscription fees. Subscription fees, along with any required taxes (including value-added tax or VAT, if applicable), may be paid on a monthly or annual basis, or for such other term(s) as the Company may offer from time to time (each such term shall be deemed a “Subscription Term”). All subscription fees are payable in advance and are non-refundable. Users changing their Subscription Term will see new rates and corresponding billing dates take effect upon the expiration of the then-current Subscription Term (whether monthly, annual or another applicable term). You agree to pay the subscription fees, and other charges you incur in connection with your Account, whether on a one-time or subscription basis. Company reserves the right to increase subscription fees, any associated taxes, or to institute new fees at any time upon reasonable notice.
- Payments. You must have internet access and provide us with a current, valid method of payment (as made available by Company from time to time, “Payment Method”) to access and use subscription-based services on the Site. When you provide your payment information, you authorize us and certain third-party service providers, payment networks and payment processors to receive, store and encrypt your payment information. You may switch to a different Payment Method or update your information by visiting https://videos.kailonfit.com. If you pay through Google Play, iTunes store, or a similar service, you may change your Payment Method through the corresponding store account. No refunds or credits will be provided by the Company, other than as set forth in your subscription agreement or in these Terms.
- Auto-Renewal; Cancellation. To the extent permitted by applicable law, subscriptions automatically renew each successive Subscription Term until you cancel. Your Payment Method will be charged at the beginning of each Subscription Term. You must cancel your subscription before the commencement of a Subscription Term in order to avoid auto-renewal and charges to your Payment Method. To pause or cancel a subscription, visit your account settings. Your changes will be applied to your next Subscription Term. Following any cancellation, however, you will continue to have access to the Site through the end of your current Subscription Term. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our users (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide Credits in the future, under any circumstance.
- Billing Cycle. In the event your Subscription Term began on a day not contained in a given month, we may charge subscription fees to your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your subscription on January 30th and selected a monthly Subscription Term, your next payment date would likely be set (at our sole discretion) on February 28th, and your Payment Method would be charged on that date. Similarly, your renewal date may change due to days not being present in a given month, or due to changes in your subscription. Visit our website and click on “Your Account” to see the commencement date for your next renewal period. We may authorize your Payment Method prior to the actual payment date in anticipation of subscription or service-related charges. In some instances, your available balance or credit limit may be reduced to reflect the authorization.
- Free Trials. Your subscription may begin with a free trial. Free trials are generally for new subscribers only. Company reserves the right, in its absolute discretion, to determine your free trial eligibility. Company will begin billing your Payment Method for subscription fees at the end of the free trial period unless you cancel prior to the end of the free trial period. We may authorize your Payment Method through various methods, including authorizing it up to the initial amount of Account initiation and subscription fees as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period. You will not receive a notice from us that your free trial period has ended or that the paying portion of your subscription has begun. We will continue to bill your Payment Method on the agreed and accepted basis until your Account is cancelled.
2. ACCESS TO THE SITE
2.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and Services solely for your own personal, noncommercial use.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. In addition, you agree to comply with our Acceptable Use Policy, below. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, INFORMATION OR MATERIALS PROVIDED BY COMPANY TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
2.3 Modification. Company reserves the right, at any time, to modify the Site (in whole or in part) with or without notice to you. It is therefore important that you review the Terms regularly. You agree that Company will not be liable to you or to any third party for any modification of the Site or any part thereof. You also agree that Company will not be liable to you or to any third party for any suspension or termination of the Site.
2.4 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site.
2.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2.6 Site is for Informational Purposes Only and Does Not Provide Medical Advice. This Site offers health, fitness and nutrition related information, but is designed for non-commercial, informational purposes only. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE CONTENT ON THE SITE, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR OBSERVED ON THE SITE. THE USE OF ANY INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. Nothing stated or posted on the Site is intended to be, and must not be taken to be, the practice of medicine, physical therapy or counseling care. For purposes of this agreement, the practice of medicine, physical therapy or counseling includes, without limitation, psychiatry, psychology, psychotherapy, the practice of pharmacy, nutrition and fitness counseling or providing health care treatment, instructions, diagnosis, prognosis or advice. Developments in medical research may impact the health, fitness and nutritional topics discussed or presented on the Site. No assurance is or can be given that the information offered on the Site will always include the most recent findings or developments with respect to the subject material. Your access or use of the Site does not create in any way a patient/physician, confidential, or privileged relationship, or any other relationship that would give rise to any duties on our part. We do not recommend or endorse any specific tests, physicians, clinics, procedures, opinions, products or other information that may appear on the Site. If you rely on any information provided by this Site, our employees, agents, contractors, or guests/visitors to the Site, you do so solely at your own risk.
3. USER CONTENT
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
- You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is vulgar, obscene, sexually explicit or promotes a sexual service; is defamatory; is harassing, abusive or patently offensive; contains hateful or discriminatory speech; promotes racism or bigotry; promotes or supports terror or hate groups; depicts or encourages self-harm or suicide; depicts unlawful real-world acts of extreme violence, or animal cruelty or extreme violence toward animals; contains false or misleading claims about vaccination safety, or health-related information that has a serious potential to cause public harm; (iii) that exploits or endangers minors in any way; (iv) that promotes fraudulent or dubious money-making schemes, proposes an unlawful transaction, or uses deceptive marketing practices; (v) that in the sole judgment of Company is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site, or which may expose Company or its users to harm or liability of any nature, or (vi) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter the Site, the operation of a computer system or network, or another’s data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) delete or revise any material posted by any other person or entity; (vii) harass or interfere with any other user’s use and enjoyment of the Site; (viii) post statements or materials that encourage criminal conduct or that would give rise to civil liability or otherwise violate any law or regulation in any jurisdiction; or (ix) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
- The Site is not intended for children under the age of 13 years old. Children under the age of 13 should not be allowed to access or use the Site or Services. If you are under the legal age to form a binding contract in your jurisdiction, you represent that your parent or guardian has reviewed and agreed to these Terms on your behalf.
- You agree not to use the Site or Services in violation of the rules and regulations of any gym, health club, personal fitness center, studio, clubhouse or other facility where you seek to access and use available content and materials. Company does not make any representation, warranty, guaranty or assurance that any such location will, among other things, allow the use of mobile phones, tablets, training websites, videos or other devices and content at their facilities.
- Weights, bands, furniture, and other fitness equipment are required for your use of the Site and Services but are not included with your subscription. Company, or an instructor providing services on behalf of Company, may recommend specific manufacturers, models, fitness equipment, furniture, or retailers for the purchase of items required for the use of the Site and Service, however such recommendations are for convenience only. You are solely responsible for the selection, purchase, and maintenance of suitable fitness equipment and/or furniture required for the use of the Site and Services. Company will not be responsible or liable for any loss, damage, injury or other matters that may occur as a result of (i) defective or improperly maintained equipment; (ii) the use of damaged, unsafe or structurally inadequate furniture selected by you; and/or (iii) the use of improper method and technique.
- Company urges all users to obtain a physical examination from a qualified doctor before participating in any exercise or dietary program(s), including those offered by the Site and Services. You understand and acknowledge that pursuing an exercise and dietary program(s) carries with it a significant risk of personal injury or death, especially for individuals in poor condition or who have underlying medical complications or conditions. By accepting the Terms, you confirm that your health condition is sufficient to allow you to safely begin and maintain a regular exercise and dietary program. You are responsible to monitor your health and dietary condition throughout your use of the Site and Services. You also agree to monitor and ensure that you have no food allergies or special dietary needs that may conflict with the meal program(s) offered by the Site and Service. Company is not responsible for any special nutritional issues caused to you as a result of its meal plans. You knowingly and voluntarily assume the risks of engaging in an exercise and dietary program, and agree to release, indemnify and forever discharge and hold harmless Company, its agents, employees, officers, directors, and partners, including all successors and assigns, from any and all liability, claims, demands or damage of whatever kind or nature, either in law or in equity, which arise or may arise from your use of the Site or Services.
- Your participation, correspondence or business dealings with any third party found on our Site and Services, including, without limitation, advertisers, manufacturers, vendors, shippers, and other users, regarding the selection, purchase and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party or parties. You agree that Company shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as a result of such dealings.
- Some links on the Site and/or Services will direct you to leave the Site or Service you are accessing in order to access a linked third party site (the “Linked Sites”). Company provides these links as a convenience, but neither controls nor endorses these Linked Sites, nor has Company reviewed or approved the content which appears on the Linked Sites. Company is not responsible for the legality, accuracy or appropriateness of any content, advertising, products, services or other materials on or available from any Linked Sites. You acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Sites.
- Company may host message boards, chat rooms and other public message forums on the Site and through the Services. Message boards, chat rooms and other public forums are intended to serve as discussion centers for users of the Site. Any information you post on these messaging applications may be seen by anyone on the Internet. Users will have the ability to edit or delete their own posts after posting. When posting information, use good judgment, sensitivity and discretion when discussing topics. Treat others with kindness and respect. Post honest and valuable information. Do not post information or opinions that are not supported by facts or reasoned judgment. Unless the information in your post arises directly from personal experience, references to any health-related or medical information you provide must be included in your post. In addition to the prohibited activities described above, when posting information you must not: post anything that interferes with or disrupts the Site or the operation thereof; post or upload personal information, pictures, videos or other media of another person without their express permission; delete or revise any material posted by any other person or entity; post statements or materials that encourage criminal conduct or that would give rise to civil liability or otherwise violate any law or regulation in any jurisdiction; post statements or materials that impersonate any other person or entity, whether actual or fictitious, including, without limitation, employees or representatives of Company; post statements or materials that misrepresent our affiliation with any entity and/or the Company; post anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information or another individual, including, without limitation, phone numbers, email addresses, addresses, social security numbers, credit card numbers, or any trade secrets or information for which you have an obligation of confidentiality; post statements or materials that constitute junk mail, spam or unauthorized advertising or promotional materials, including, without limitation, links to commercial products or services or any political campaigning; or, post material that in the sole judgment of Company is objectionable or restricts or inhibits any person or entity from using or enjoying any interactive features or other portions of the Site, or which may expose Company or its users to harm or liability of any nature. Any user failing to comply with these guidelines may be expelled from and refused continued access to message boards, chat rooms or other public forums. Materials posted and/or uploaded to public forums may be subject to size and usage limitations. You are responsible for adhering to such limitations. Company expressly disclaims al responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will Company or our directors, officers, shareholders, employees, agents or affiliates be liable for any loss or damage caused by your reliance on information obtained through these forums. Opinions expressed in these forums are solely the opinions of the participants, and do not reflect the opinions of Company or any of its agents or affiliates. Company has no obligation whatsoever to monitor any of the content or postings on the message boards, chat rooms or public forums. However, you acknowledge and agree that we reserve the right to monitor the same at our sole discretion. Unless otherwise stated, these moderators are not medical professionals and should not be construed as such. Our moderators reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors. In addition, Company and its moderators reserve the right to contact users to inform them of policies, hide users’ posts or delete users’ accounts without warning or advance notice, for any reason. By sending or transmitting to us content, images, video, audio files, creative suggestions, ideas, concepts, information or other materials (collectively, “Submission Materials”), or by posting Submission Materials on the Site, you represent and warrant that any person named or pictured in such Submission Materials, or content or ideas disclosed in the Submission Materials, is provided with any necessary licenses, rights or authorizations to allow Company’s use of such Submission Materials in accordance with such license. No Submission Materials disclosed or posted via message boards, chat rooms or public forums shall be subject to any obligation, whether of confidentiality, attribution or otherwise.
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include refusing to post your User Content, in whole or in part, removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Company with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
4 INDEMNIFICATION. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third-party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5. THIRD-PARTY LINKS & ADS; OTHER USERS
5.1 Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads. It should be understood that we do not advocate the use of any product or procedure described or featured on the Site or in Third-Party Links & Ads, nor are we responsible for injuries caused by misuse of a product or product failure.
5.2 Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. Any opinions, advice, statements, services, or other information or content expressed or made available through the Site by third parties are those of the respective authors or distributors and not the Company. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. Further, you may be exposed through the Site to content that violates our policies, is sexually explicit or is otherwise offensive. You access the Site at your own risk. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
5.3 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE, ARE PROVIDED “AS-IS”, “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT (i) THIS SITE, (ii) INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, (iii) OUR SERVERS, OR (iv) E-MAIL SENT FROM US ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE WILL NOT BE LIABLE FOR ANY DMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THORUGH THIS SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
WITHOUT LIMITING THE GENERALITY OF THE FORGOING, WE (AND OUR AFFILIATES, SUPPLIERS AND AGENTS) MAKE NO WARRANTY AND EXPRESSLY DISCLAIM THAT (i) THE SITE AND SERVICES WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE SITE AND SERVICES, AND ACCESS TO ALL OF THE TOOLS AND FEATURES THEREON, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, (iii) ANY INFORMATION THEREIN WILL BE ACCURATE, RELIABLE, OR COMPLETE, (iv) THAT DEFECTS WILL BE CORRECTED, AND (v) THAT ANY SOFTWARE, SERVICES, SITES OR SERVERS ON WHICH THE SITE AND SERVICES ARE HOSTED WILL BE FREE OF VIRUSES OR OTHER HARMFUL CODE, OR SAFE. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCTS OR SERVICES SOLD, USED OR ADVERTISED ON THE SITE, OR ABOUT THE SATISFACTION OF LAWS AND REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS WITH REGARD TO CONTENT CONTAINED ON THE SITE OR THROUGH THE SERVIES. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY TREATMENT, ACTION OR APPLICATION OF MEDICINE, MEDICATION OR OTHER INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SITE OR THE SERVICES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR CERTAIN DAMAGES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR AFFILIATES, SUPPLIERS AND AGENTS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR INJURY OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING FROM OR RELATING TO (i) THE USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES, (ii) ANY CONTENT CONTAINED ON THE SITE AND/OR THE SERVICES, (iii) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE USE OF THE SITE AND/OR SERVICES (iv) ANY ACTION TAKEN AS A RESULT OF OR IN RESPONSE TO ANY CONTENT OR INFORMATION MADE AVAILABLE ON THE SITE AND/OR THE SERVICES, OR (v) LOSS OR ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERTION OF ANY CONTENT ON THE SITE AND/OR THE SERVICES, IN ALL CASES, EVEN IF COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU, IF ANY, FOR YOUR USE OF THE SITE AND/OR SERVICES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 10.
9. COPYRIGHT POLICY.
Company respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is:
Kailon Fitness, LLC
E-Mail: [email protected]
10.1 Changes. We may modify these Terms at any time, as we deem appropriate. If you disagree with the changes to the Terms, you must discontinue your use of the Site, and if you have registered as a member, cancel your registration. Your continued access or use of the Site following such notice signifies your acceptance of the modified Terms. It is your responsibility to review the Terms regularly to be aware of modifications. We reserve the right to modify or discontinue the Site with or without notice. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site. If you object to any such changes, your sole recourse will be to cease access to the Site. Continued access to the Site following notice of any such changes will indicate your acknowledgment of such changes and acceptance of the Site as so modified, and your use of new Services will be governed by these Terms.
10.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 2033 San Elijo Avenue #121, Cardiff-by-the-Sea, California 92007, along with an electronic copy to [email protected]. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Company’s principal place of business. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online via Zoom, Microsoft Teams or similar technology, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
- Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Diego County, California, for such purpose.
- Governing Law. These Terms and the relationship between you and the Company shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.
10.3 Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.4 Disclosures. Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.5 Electronic Communications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement(s) that such communications would satisfy if they were delivered in a hardcopy writing. The foregoing does not affect your non-waivable rights.
10.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
10.7 Copyright/Trademark Information. Copyright © 2021 KAILON FITNESS LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
10.8 Contact Information:
Kailon Fitness, LLC
2033 San Elijo Avenue #121
Cardiff-by-the-Sea, California 92007
E-Mail: [email protected]