TERMS of Service II

12.2 If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.

12.3 If you believe that your work has been copied and posted on the Products in a way that constitutes copyright infringement, please provide our designated agent with the following information:

  • (a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

  • (b) A description of the copyrighted work or other intellectual property that you claim has been infringed;

  • (c) A description of where the material that you claim is infringing is located on the Products;

  • (d) Your address, telephone number, and email address;

  • (e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

  • (f) A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

  • (g) Our designated agent for notice of claims of copyright infringement can be reached as follows:

By Mail: Cloud Workout, Inc. Attn: Copyright Agent 165 11 St. San Francisco, CA 94103

 

13. GENERAL TERMS AND CONDITIONS

13.1 ASSIGNMENT BY US

Cloud Workout may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.

13.2 INDEMNITY BY YOU

You agree to defend, indemnify and hold Cloud Workout and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Products, your placement or transmission of any message, content, information, software, or other submissions through the Products, or your breach or violation of the law or of these Terms. Cloud Workout reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Cloud Workout defense of such claim.

13.3 WARRANTIES AND LIMITATIONS

(a) We warrant to you that any Product purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.

(b) We warrant that we will use reasonable skill and care in making the Products available to you during your subscription.

(c) Nothing in this sections 13.3 or otherwise in these Terms shall exclude or in any way limit Cloud Workout’s liability for: fraud; death or personal injury caused by negligence; or liability to the extent the same may not be excluded or limited as a matter of law.

(d) The Products and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to them, including as to the accuracy, completeness or currency of the Products or their content. We assume no liability or responsibility for any errors or omissions in the content of the Products, or any failures, delays, or interruptions in the provision of the Products. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Products to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Products. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Products. We make no warranties or representations that your use of content and information posted on the Products will not infringe rights of third parties.

(e) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.

13.4 NO WAIVER

If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.

13.5 FORCE MAJEURE

We will not be liable to you for any lack of performance, or the unavailability or failure, of the Products, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.

13.6 INTERPRETATION

In these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.

13.7 ELECTRONIC COMMUNICATIONS

(a) Applicable laws require that some of the information or communications we send to you should be in writing. When using the Products, you agree to transact with us electronically, and that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Products. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.

(b) In order to retain a copy, please select “Print,” and select the appropriate printer. If you do not have a printer, you can copy the text and the underlying agreement(s) and paste them into a new document in a word processor or a text editor on your computer and save the text.

(c) You have the right to receive a paper copy of the communications. To receive a paper copy, please request it by emailing us at help@cloudworkout.com

(d) We may charge you a reasonable service charge to mail you a paper copy of any communication. We will either include such service charge on our fee schedule or we will first inform you of the charge and provide you with the choice as to whether you still want us to send you a paper copy. Please be sure to state that you are requesting a copy of the particular communication.

(e) To receive and view an electronic copy of the communications you must have the following equipment and software:

  • (i) A personal computer or other device which is capable of accessing the Internet. Your access to this page verifies that your system/device meets these requirements.

  • (ii) an Internet web browser which is capable of supporting 128-bit SSL encrypted communications, JavaScript, and cookies. Your system or device must have 128-bit SSL encryption software. Your access to this page verifies that your browser and encryption software/device meet these requirements.

(f) To retain a copy, you must either have a printer connected to your personal computer or other device or, alternatively, the ability to save a copy through use of printing service or software such as Adobe Acrobat®. If you have a word processor or text editor program on your computer, then you can also copy the text and paste the text into a new document in the word processor or text editor and save the text.

(g) You can also contact us via email at help@cloudworkout.com to withdraw your consent to receive any future communications electronically, including if the system requirements described above change and you no longer possess the required system. If you withdraw your consent, we may terminate your use of the Products.

(h) We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.

13.8 NOTICES

Unless otherwise specifically indicated, all notices given by you to us must be given to Cloud Workout at help@cloudworkout.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.7 above. Notice will be deemed received and properly served immediately when posted on the Products or when an e-mail or other electronic communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.

13.9 ENTIRE AGREEMENT

These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.

13.10 THIRD PARTY RIGHTS

A person who is not party to these Terms will not, subject to section 12 (DMCA), have any rights under or in connection with these Terms.

13.11 OUR LIABILITY

(a) We will use reasonable endeavors to remedy faults in the Products. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Products in question. In addition, we will not be liable for:

  • (i) Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).

  • (ii) Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the Products, or from transmissions via emails or attachments received from us.

  • (iii) Any use of websites linked to the Products but operated by third parties.

(b) To the extent permitted by law, Cloud Workout and its affiliates, suppliers, clients, or licensors (collectively, the “Protected Entities”) shall not be liable for any consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Products or the content, materials and functions related thereto, your provision of information via the Products, or lost business or lost sales, or any errors, viruses or bugs contained in the Products, even if such Protected Entity has been advised of the possibility of such damages. In no event shall the Protected Entities be liable for or in connection with any content posted, transmitted, exchanged or received by or on behalf of any user or other person on or through the Products. In no event shall the total aggregate liability of the Protected Entities to you for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from these terms of use or your use of the Products exceed, in the aggregate, the amount, if any, paid by you to Cloud Workout for your use of the Products.

13.12 ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH CLOUD WORKOUT, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CLOUD WORKOUT.

(a) Applicability of Arbitration Agreement. All disputes arising out of, relating to, or in connection with these Terms or your use of the Products that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and Cloud Workout are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.

(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator.

If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county of your billing address. In the case of an in-person hearing, the proceedings will be conducted at a location which is reasonably convenient for both parties with due consideration of the ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the arbitration institution.

Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by Cloud Workout. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Cloud Workout for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(c) Authority of Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Cloud Workout. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under applicable law, the arbitral forum's rules, and the Terms. 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 Cloud Workout.

(d) Jury Trial Waiver. You and Cloud Workout waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and Cloud Workout elect to have claims and disputes resolved by arbitration. In any litigation between you and Cloud Workout over whether to vacate or enforce an arbitration award, you and Cloud Workout waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.

(e) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND CLOUD WORKOUT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Cloud Workout are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in section 13.13 below.

(f) Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor Cloud Workout can force the other to arbitrate. To opt-out, you must notify Cloud Workout in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your Cloud Workout account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to one of the following physical or email addresses: Cloud Workout, Inc., ATTN: Arbitration Opt-out, 2415 Michigan Avenue, Santa Monica, CA 90404; ADR@cloudworkout.com

(g) Small Claims Court. Notwithstanding the foregoing, either you or Cloud Workout may bring an individual action in small claims court.

(h) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Cloud Workout.

13.13 EXCLUSIVE VENUE

To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Cloud Workout agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the United States District Court for the Central District of California. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the Superior Court of California, County of Los Angeles. You and Cloud Workout consent to the personal jurisdiction of both courts.

13.14 CHOICE OF LAW

Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.

13.15 SEVERABILITY

If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provision