Terms & Conditions
Effective Date: Nov 24, 2020
Flexia, Inc. (“Flexia,” “we,” “our,” or “us”) is a provider of fitness technology hardware and services that help you build strength and flexibility through Pilates at-home.
THIS IS A BINDING AGREEMENT—BY USING THE NATIVE APPLICATION, WEB APPLICATION, AND/OR WEBSITE OF FLEXIA.COM, OR ANY SERVICES, PRODUCTS, FEATURES, CONTENT, OR APPLICATIONS PROVIDED IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE”), YOU, THE USER, (THE “USER,” “YOU,” “YOUR,” AND “YOURSELF”) SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE (THE “TERMS”), AS THEY MAY BE AMENDED BY US FROM TIME TO TIME AT OUR SOLE DISCRETION.
PLEASE READ THESE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION OF THE TERMS. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Our Service
This is a contract between you and Flexia. You must read and agree to these Terms before using our Service. If you do not agree to these Terms, you may not use our Service. You may use our Service only if you can form a binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to our Service by anyone under 18 is strictly prohibited and in violation of these Terms. Our Service is not available to any Users we previously removed from our Service.
- Access and Use
Subject to your compliance with the Terms, you may access and use our Service solely for your personal, non-commercial use. We reserve all rights not expressly granted by these Terms in and to our Service and our Intellectual Property (defined below). We may suspend or terminate your access to our Service at any time for any reason or no reason.
As of this time, we do not have any technicians available to set up your Flexia Reformer. Please carefully follow the instructions available at FlexiaPilates.com/Setup
You will not, and you will not assist, permit, or enable others to do any of the following:
- use our Service for any purpose other than as expressly set forth in in the Terms;
- disassemble, reverse engineer, decode, or decompile any part of our Service;
- use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy, or record the Service;
- copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Service or any of our Intellectual Property;
- remove any copyright notices or proprietary legends from our Service;
- use our Service in a manner that impacts: (i) the stability of our servers; (ii) the operation or performance of our Service or any other User’s use of our Service; or (iii) the behavior of other applications using our Service;
- use our Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy or rights of publicity, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or Users;
- use our Service in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
- use our Service for benchmarking or competitive analysis of our Service;
- attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service;
- transmit viruses, worms, or other software agents through our Service;
- impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use our Service for any invasive or fraudulent purpose;
- share passwords or authentication credentials for our Service;
- bypass the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service or the content therein, including without limitation features that prevent or restrict use or copying of any content;
- identify us or display any portion of our Service on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights;
- identify or refer to us or our Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Service under these Terms, without our express written consent.
Your account on our Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. By connecting to our Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You further agree that all information supplied to us is true, accurate, current, and complete. You are required to keep your account information updated at all times. Some of the needed personal information may include, but is not limited to, the following:
- Email address;
- Your first and last name;
- Date of Birth;
- Phone number, including a mobile phone number or landline number;
- Mailing address;
- Financial information, e.g., credit card numbers;
- Payment or tax information, including, but not limited to, bank account information;
- User login and password information;
- Facebook, Gmail, or other social media login username and password;
- The name of the domain from which you access the Internet;
- Search preferences including latitude and longitude of your location;
- Street address of your location;
- Vehicle information such as license plate information;
- The date and time you access the App and/or the Service and the duration time.
Usage of your Information
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete profile information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your User Account. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control certain aspects of your User profile and how you interact with our Service by changing the settings in your settings page. By providing us with your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other promotional messages, such as changes to features of our Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting Flexia support at firstname.lastname@example.org or by clicking the unsubscribe link within each promotional message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers; however opting out will not prevent you from receiving Service-related notices.
You acknowledge that you do not own the User Account you use to access our Service. Notwithstanding anything in these Terms to the contrary, you agree that we have the absolute right to manage, regulate, control, modify and/or eliminate any data stored by us or on our behalf on our (including by our third party hosting providers’) servers as we see fit in our sole discretion, in any general or specific case, and that we will have no liability to you based on our exercise of such right. All data on our servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON OUR SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
Changes to our Service
We may, without prior notice, change our Service; stop providing our Service or features of our Service, to you or to Users generally; or create usage limits for our Service. We may permanently or temporarily terminate or suspend your access to our Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
Interactions with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Our Service is controlled and operated from facilities in the United States. Those who access or use our Service from other jurisdictions are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use our Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
Our Intellectual Property
You acknowledge and agree that our Service and all materials and content displayed or made available on our Service, and all software, algorithms, code, technology and intellectual property underlying and included in or with our Service, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property. Use of our Intellectual Property for any purpose not expressly permitted by these Terms are strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas about our Service, including without limitation about how to improve our Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Some areas of the Service allow you to post content such as profile information, comments, questions, and other content or information (your “Content”). We claim no ownership rights over your Content. Your Content remains yours; however, by sharing your Content through the Service, you agree to allow others to view, edit, and/or share your Content in accordance with your settings and these Terms. We have the right (but not the obligation) in our sole discretion to remove any of your Content that is shared via the Service.
You agree that your Content will not include any content or materials that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that your Content does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. We reserve the right, but we are not obligated, to reject and/or remove any of your Content that we believe, in our sole discretion, violates these provisions. You understand that publishing your Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
In connection with your Content, you affirm, represent and warrant that: (a) you have the written consent of each and every identifiable natural person in the your Content to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use; (b) your Content and our use thereof as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights; (c) we may exercise the rights to your Content granted under these Terms without liability for payment of any fees payable under any collective bargaining agreement or otherwise; and (d) to the best of your knowledge, all of your Content and other information that you provide to us is truthful and accurate.
We take no responsibility and assume no liability for any of your Content. You shall be solely responsible for your Content and the consequences of posting or publishing it. You understand and agree that you may be exposed to your Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of your Content.
Instructions; Restrictions; Warnings; Disclaimers.
Please carefully read any and all instructions that come with the Flexia Reformer, including instructions that may be available online on our website, or by contacting Flexia support at email@example.com. You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for any or all of the following activities:
- PLEASE HEED THE FOLLOWING WARNINGS:
- MISHANDLING THE FLEXIA REFORMER MAY RESULT IN SERIOUS INJURY OR IMPARIED FUNCTIONALITY. Do not push, kick, punch, knock over, or lay the Flexia Reformer on its side. Supervise children and domestic animals around the Flexia Reformer.
- The Flexia Reformer may contain BPA, a chemical known by the state of California to cause cancer, birth defects or other reproductive harm. For more information, visit bisphenol-bpa.
- Do not perform any movements that have not been explicitly instructed by a Flexia instructor.
- Do not attempt to stand on the Reformer. The Reformer does not have a stable surface and caution should be used at all times when operating.
- Inspect all components: springs, nuts, bolts, other fasteners, hooks, ropes, pulleys, and knobs before each use. Do not use any component that shows wear. All questionable items should be replaced before the equipment is used. If you have a question about the condition of your equipment, email photos or videos to firstname.lastname@example.org.
- Do not store the Reformer without any springs attached. Attach at minimum 2 springs when not in use.
- Do not mishandle, abuse, or otherwise damage the Reformer.
- DO NOT ATTEMPT TO PERFORM YOUR OWN MAINTENANCE ON THE FLEXIA REFORMER. If your Flexia Reformer requires maintenance, please contact customer service at email@example.com.
- Keep the Reformer and all of its components out of the reach of children as some components may have the potential to pose a risk of injury, suffocation, or strangulation resulting in injury or death.
- DO NOT EXPOSE THE FLEXIA REFORMER TO EXTREME HEAT OR MOISTURE, ANY HUMID AREAS, DIRECT SUNLIGHT, ANY AREA WITH A RISK OF FIRE, ELECTRIC SHORT, OR SERIOUS INJURY, INCLUDING BUT NOT LIMITED TO, NEAR A FIREPLACE, WASHING MACHINE, DISHWASHER, REFRIGERATOR, OR OTHER HOUSEHOLD APPLIANCE.
- READ THE USER MANUAL PRIOR TO USE AND FOLLOW ALL WARNINGS AND INSTRUCTIONS.
- SET UP AND OPERATE ON A SOLID, LEVEL SURFACE.
We do not guarantee that the Flexia Reformer or its functionality or content is accurate, reliable, always available, or complete. You may encounter content through the Service that you find offensive, indecent, or objectionable. Flexia has no responsibility or liability for such content. We have endeavored to be as accurate as possible in describing and displaying the features of the Reformer; however, there is no warranty or guarantee that the quality, product descriptions, or other content of the Service is accurate, complete, reliable, current, or error-free.
Your use of any third party services or products in connection with your use of the Flexia Reformer is subject to these Terms and any third party terms applicable to such third party services or products. When using any third party services or products you are responsible for any information you provide to the third party. Your use of third party services or products may incur usage and/or data charges, you are responsible for any such charges. Flexia has no responsibility or liability for any third party services or products
You acknowledge that you are solely responsible for obtaining any access to the Internet through a cellular data service provider or a wireless service provider or other Internet connectivity service provider whose service is compatible with the Flexia Reformer.
Always be sure you are fit enough to undertake any exercise routine. When rehabilitating any injury, always consult with your Doctor, Physical Therapist, or other qualified health care practitioner before embarking on an exercise that may be detrimental to your recovery. NEVER assume that you can accurately duplicate the movements you see on video without proper instruction from a qualified professional. Video routines are meant to be a general guide and unless otherwise stated, are not meant to be instructional. Always consult a professional first to gain maximum results from the equipment and avoid injury.
Charges and Payment
- Billing Policies By using the Service, you agree to our pricing and payment terms as we may update them from time to time. Unless otherwise specified at the time of purchase, you must pay for your Flexia products when you place your order. You acknowledge that the amount billed may vary due to changes in applicable fees, promotional offers and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
- Subscription Plans You agree to make payments, and we will automatically charge the payment method associated with your User Account (“Payment Method”), as described below for so long as your User Account remains active. We may offer plans that you can sign up for that allow you to use certain aspects of the Service (a “Subscription Plan”). Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in additional fees, as specified in the plan. Subscription Plans may be offered for a fee or other charge for a set period of time of Service use (e.g., monthly, or annually) (a “Subscription Period”). If you elect to use a paid Subscription Plan, you agree to the pricing and payment terms specified at checkout and herein, as we may update them from time to time. We may change Subscription Plans by offering new services for additional fees and charges and adding or amending fees and charges for existing Subscription Plans/services, at any time in its sole discretion. Any change to a Subscription Plan’s pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms. All Subscription Plans will automatically renew until cancelled by you. If you do not want a Subscription Plan to renew, please cancel it at least three days before the end of the Subscription Period. If we terminate your Subscription Plan, we will grant you a prorated refund for the remaining unused portion of your Subscription Period. You are not entitled to a refund for any Subscription Plan that you cancel.
- Payment Information; Taxes You must provide Flexia with a current, valid, accepted Payment Method. You hereby authorize Flexia (through our third-party payment providers) to bill the fees to your Payment Method, along with any applicable taxes or additional fees due during the billing period. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Service must be accurate, complete, and current. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
- Third-Party Payment Provider We use Stripe as our third party service provider for payment services. By using our Service you agree to be bound by Stripe’s Services Agreement available at stripe.
Shipping and Returns
- Shipping All products ordered will be delivered to the shipping address you provide. If Flexia provides an expected shipping date, such date is an estimate and subject to change. Flexia shall not be liable for any change in such expected shipping date. You will be notified via email if there is an issue that will delay your delivery beyond the expected delivery date. Your billing and shipping addresses may be different. We will arrange for packing and shipment of the Flexia Reformer to you; provided that we may charge you if you change your shipping address after ordering the Flexia Reformer. Scheduled shipping and delivery dates are estimates only and cannot be guaranteed. We will make commercially reasonable efforts to ship the Flexia Reformer to you by the scheduled delivery dates, but we are not liable, under any circumstances, for any losses, damages or penalties due to any delays in shipments or deliveries.
- Returns You may request to return the Flexia Reformer to Flexia at no charge for a full refund of the amount you paid for the Flexia Reformer, minus any shipping or delivery fees, at any time within thirty (30) days of receipt (or any such longer period as required by applicable law or offered by Flexia at the time of sale, the “Return Period”).
This money-back guarantee does not cover dissatisfaction caused by ordinary wear and tear or damage caused by improper use or accidents, subject to the terms of our Limited Warranty. Damage to the Flexia Reformer upon receipt of delivery must be notated upon delivery. Please thoroughly inspect your Flexia Reformer and report any damage within 48 hours to the delivery company and Flexia support.
- Cancellations You may request to cancel your order for a full refund at any time before the unit arrives at a distribution facility. A cancellation after the Flexia Reformer arrives at such facility is subject to a $50 processing fee. If a delivery date has already been scheduled with the fulfillment partner, the customer will be subject to a $250 cancellation fee.
- Per the terms of the Limited Warranty, if a defect arises in a Flexia Reformer or a warranted component within the applicable Limited Warranty period, your sole and exclusive remedy is for Flexia to, at Flexia’s discretion to the extent permitted by law, either replace or repair the defective or malfunctioning Flexia Reformer or component with the same or a comparable model or, if agreed by the parties, Flexia may provide a credit in such amount toward your purchase of a new Flexia Reformer. Any replacement or repaired component shall be warranted for the remainder of the original Limited Warranty period or 30 days, whichever is longer, or for any additional period that is required by applicable law.
- Returning Your Products Flexia will offer at no charge packaging and shipping for your return in the event you return products due to a defect; for all other returns, you are responsible for paying between $250-350 USD, depending on location, for all associated packing and shipping costs.
Your Flexia Reformer is expected to be returned in the same condition that it was received. If there are missing accessories or damage to the equipment that was not noted upon receipt, a fee will be associated for refurbishment and repair that will be deducted from your purchase price prior to refund.
To request a return or report a defect, please email our customer service department at firstname.lastname@example.org and provide your name, contact information and the serial number on the Flexia Reformer. Nothing in this Return Policy will reduce or otherwise affect your statutory rights in relation to the Flexia Reformer.
No Professional Advice
If the Service provides any information that could be construed as professional advice (e.g., medical advice), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
Please carefully read any and all instructions that come with the Flexia Reformer, including instructions that may be available online on our website or by contacting support at email@example.com You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for any or all of the following activities: We care about the integrity and security of your personal information. We use physical, managerial, and technical safeguards in its sole discretion to preserve the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Disclaimer of Third-Party Links and Products
You agree to defend, indemnify and hold harmless Flexia and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to our Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User Data including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of our Service with your unique username, password or other appropriate security code; and (viii) your misuse of any Flexia equipment you purchase.
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FLEXIA OR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FLEXIA, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF OUR SERVICE.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FLEXIA, OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (VII) YOUR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL FLEXIA, OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FLEXIA HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law. You agree that: (i) our Service shall be deemed solely based in California; and (ii) our Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence one or more transactions involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Sacramento, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Sacramento County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with Flexia, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute we have with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Sacramento County, California, unless you and we agree otherwise. If you are using our Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
- Class Action/Jury Trial Waiver WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Assignment These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Entire Agreement/Severability These Terms, together with any amendments and any additional agreements you may enter into with us in connection with our Service, shall constitute the entire agreement between you and us concerning our Service. None of our employees or representatives are authorized to make any modification or addition to these Terms. Any statements or comments made between you and any of our employees or representatives are expressly excluded from these Terms and will not apply to you or us or your use of our Service. If any provision of these Terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
- No Waiver No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- Contact Please contact us at email@example.com with any questions regarding these Terms.
- California Residents The provider of our Service is Flexia, Inc. 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 or (916) 445-1254.